Nonimmigrant vs. Immigrant VisasOctober 31, 2012

Overview

Visas are typically the starting point for foreign nationals to visit, work, or live in the United States. Visas are official government endorsements permitting a foreign national to remain in a non-native country. In the U.S., foreign nationals may receive either an immigrant or non-immigrant visa for entry, depending on their goals and their status with regard to U.S. immigration rules.

Nonimmigrant vs. Immigrant Visas

Nonimmigrant visas are for temporary residence and often, employment with a particular company in the U.S., whereas immigrant visas provide for permanent residence and ultimately open-market employment.  Most nonimmigrant visas require the foreign national demonstrate nonimmigrant intent, i.e., proof of a residence in a foreign country they have no intent to abandon. Although, some nonimmigrant visa categories such as H-1B and L-1 permit dual intent to either reside temporarily or permanently.

Nonimmigrant Business Categories

There are a number of nonimmigrant visas available for entry into the U.S. for a number of different reasons and durations. Below is a list of the most common nonimmigrant visas used and their purpose:

• B-1 Business Visitor: This visa covers business related trips of a short duration. B-1 visa holders will only be granted a period of entry necessary to conduct the foreign national’s business. The foreign national must maintain a residence abroad that the foreign national has no intention of abandoning to be approved for a visa in this sub-category.
• B-2 Tourist Visa: This visa covers short visits for pleasure such as tourism or visiting a family member.
• F-1 Student Visa: Foreign nationals who wish to pursue academic studies in the U.S. apply for an F-1 visa. Foreign nationals admitted under this category can remain in the United States as long as it takes to complete their intended course of study. They may also engage in a specific period of practical training after completion of their studies as long as the training would not be available in their own country.
• The H-1B category: The H-1B classification allows professionals to work in the U.S., on a temporary basis, within their profession. It is suitable and ideal for engineers, nurses, professors, researchers, computer programmers and other professionals. The H-1B category is designed to attract highly skilled professionals to work in the U.S. on a temporary basis. H-1B classification is available only to workers in occupations requiring highly specialized knowledge normally acquired through attainment of a four-year college degree.
• J-1 category: A J-1 Visa is a special form of non-immigrant visa for certain foreign nationals known as “exchange visitors.” To obtain a J-1 Visa, an foreign national must be sponsored by an employer working through an Exchange Visitor Program as designated by the U.S. State Department. Generally, immigration regulations permit J-1 holders to work for the program sponsors.
• L-1A category: This category allows international companies to bring foreign nationals to the United States to work in the United States for a limited period of time. In this category, the employer files a petition with the USCIS in order to obtain permission to transfer the foreign national to the company’s U.S. location for a limited initial period of three years. The employer cannot petition for a foreign national to be transferred to its U.S. operation unless it does business systematically in the U.S. and at least one other country. The foreign national employee must have worked abroad for the overseas company for a continuous period of one year in the preceding three years.
• O Category: To qualify under this category, the foreign national must have an extraordinary ability in the sciences, arts, education, business, or athletics. Different standards of eligibility apply for the various fields listed above. The foreign national must be coming to the United States to work in the area for which he/she is recognized to have extraordinary ability or achievement.

Immigrant Visas

Aliens seeking admission to the U.S. as immigrants follow one of two paths depending on their residence at the time of application.

• Aliens living abroad apply for an immigrant visa at a consular office of the Department of State. Once issued a visa, they may enter the U.S. and become legal immigrants when they pass through the port of entry.
• Aliens already living in the U.S., including certain undocumented immigrants, temporary workers, foreign students, and refugees, file an application for adjustment of status (to legal permanent residence) with the Bureau of U.S. Citizenship and Immigration Services (USCIS). At the time they apply for adjustment of status, applicants may also apply for work permits. New legal immigrants are automatically authorized to work and should receive alien registration cards (“green cards”) after becoming legal permanent residents.

Processing Times

U.S. embassies and visa-processing Consulates have varying processing times depending on which office is processing the visa application and the type of visa being requested. Processing times can be as short as a few days to months depending on visa type being requested and background check delays. U.S. Citizenship and Immigration Services (USCIS) visa petition processing times vary significantly, depending on which USCIS office is adjudicating the petition, and what type of visa is being requested.

Ryan A. Hintzen

Attorney

The Hintzen Law Firm, PLLC