A nonimmigrant is a foreign national seeking to enter the United States (U.S.) temporarily for a specific purpose. Nonimmigrants enter the U.S. for a temporary period of time, and once in the U.S. are restricted to the activity or reason for which their visa was issued. They may have more than one type of nonimmigrant visa but are admitted in only one status.
General requirements for foreign nationals seeking temporary admission include, but are not limited to, the following:
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The purpose of the visit must be temporary;
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The foreign national must agree to depart at the end of his/her authorized stay or extension;
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The foreign national must be in possession of a valid passport;
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A foreign residence must be maintained by the foreign national, in most instances;
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The foreign national may be required to show proof of financial support;
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The foreign national must be admissable or have obtained a waiver for any ground of inadmissability;
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The foreign national must abide by the terms and conditions of admission.
VISAS: AN OVERVIEW
A visa grants a foreign national permission to enter the United States. A "nonimmigrant visa" permits a foreign national to remain in the United States temporarily, usually to work, to visit relatives or to attend school. Most nonimmigrant visas are not subject to numerical caps.
An "immigrant visa" (also known as a "green" card or permanent resident status) permits a foreign national to remain in the United States permanently. A permanent resident has the right to become a naturalized U.S. citizen after three to five years. Immigrant visas are numerically limited by country and by class, e.g. family relationship or job skills.
To enter or to stay in the United States as a nonimmigrant or immigrant usually requires several steps. First, a foreign national or his or her employer or relative often files an application with the U.S. Immigration and Naturalization Service (INS) to be classified in one of the nonimmigrant or immigrant visa categories. If the INS approves the application, the foreign national may need to go to a U.S. embassy or consulate overseas to have a visa stamped in his or her passport. This stamp indicates the visa class and the date of issuance and expiration. At the border, an immigration inspector will review the visa stamp and issue an admission card (Form I-94 for nonimmigrants). The inspector can authorize admission for any length of time, up to the expiration date on the visa stamp. The INS also issues permanent resident alien cards to immigrants in the United States.
NONIMMIGRANT VISA CATEGORIES
There are approximately 26 types of nonimmigrant visas, each authorizing a temporary stay in the United States. It is often possible to extend your stay and/or change from one nonimmigrant visa category to another.
A: Government Officials
This class includes ambassadors, public ministers, diplomats, consular officers and other officials assigned to represent their country to the United States. Spouses, children, servants, attendants and their families are also included in this class.
This class includes foreign nationals who intend to conduct business for a foreign employer. A B-1 visitor may not displace a U.S. worker, or receive compensation from a U.S. source. The initial maximum period of admission is one year, with renewals granted as necessary to complete the purposes of the trip.
These are tourists and relatives visiting family members in the United States. B-2 nonimmigrants are not permitted to work in the United States. Persons coming primarily for the purpose of studying are not properly classifiable as B-2 nonimmigrants. The initial period of admission is usually six months, with a maximum total stay of one year.
Visitors - Visa Waiver Pilot Program
Nationals from a growing list of countries, designated based upon a historically low rate of non-immigrant visa refusals, are permitted to enter the United States as visitors for business or pleasure without first obtaining visas. Individuals entering under this program are permitted to remain in the United States for a maximum of 90 days, and are generally barred from extending their stay or changing status while in the United States.
C-1: Transit Aliens
A transit alien is someone passing through the United States on the way to a third country. A maximum period of 29 days is permitted.
D: Alien Crewmen
This class includes vessel or aircraft workers required for normal operation of the ship or plane. Crewmen are admitted to the United States for up to 29 days.
A treaty trader is someone who enters the United States primarily to carry on trade between the United States and a foreign country that has signed a treaty of commerce and navigation (or its equivalent) with the United States. The treaty trader must carry a passport from the country he is representing. The initial period of admission is one year. Extensions of stay are possible.
A treaty investor is also a national of a foreign country with which the United States has signed a treaty of commerce and navigation, or its equivalent. However, a treaty investor is someone directing and developing a business in which he or she has invested a substantial amount of capital. Top managers and executives of firms that have made substantial investments in qualifying enterprises may also qualify, as may "essential" employees. A one year initial period of admission is permitted, with extensions available.
An F-1 student is admitted to pursue a full course of study at a school or institution approved by the INS to accept foreign students. An F-1 student must maintain a home in a foreign country to which he or she will return upon completion of studies. This category also includes the student's spouse and unmarried children under 21 years old (known as "F-2"s).
With permission, F-1 students may work on-campus, and off-campus after the first academic year part-time during the semester and full-time during vacations, and after graduation, for a period of up to one year for "practical training." F-1 students are admitted for "duration of status," which is defined as the length of time necessary to complete a particular degree program, plus a period of authorized practical training.
G: Representatives to International Organization
This class includes persons accredited by their governments to represent it to an international organization such as the United Nations, World Bank, or Red Cross.
H-1A: Registered Nurses
Special rules govern institutions petitioning for the admission of temporary foreign nurses.
H-1B's are persons coming to the United States to engage in "specialty occupations." This includes all professionals holding bachelor's degrees and some persons who can show professionalism based on a combination of schooling and appropriate work experience. This class requires a prearranged job, which may be temporary or permanent in nature, in a professional field. The employer must also file an "attestation" with the U.S. Department of Labor that it will pay the foreign national the higher of the prevailing or actual wage for the job, and provide adequate working conditions, among other things. The initial period of admission is three years, with a second three-year period available. After remaining in the United States for six years on an H-1B visa, a foreign national must live abroad for one year before re-entering the United States in H or L visa status. The H-1B class is subject to an annual cap of 65,000.
H-2A: Temporary Agricultural Workers
H-2B: Temporary Non-Professional Workers
These classes include skilled and unskilled workers who lack bachelor's degrees who are coming to the United States temporarily to perform jobs that are temporary or seasonal in nature. This class requires prearranged employment and a certification from the U.S. Labor Department that U.S. workers are unavailable for the job. The initial period of admission is authorized by the Labor Department and INS, and is not to exceed one year. Extensions are available in limited circumstances for a maximum period of three years.
An H-3 trainee is a foreign national coming temporarily to the United States to engage in training not available in his or her home country, who intends to use this training outside of the United States. A trainee may not engage in productive employment if a U.S. resident would be displaced.
H-4: Spouses and Children
Spouses and children of H-1, H-2 or H-3 nonimmigrants are generally admitted for the duration of the status of the primary visa holder. H-4's are not permitted to work in the United States.
I: Journalists
This category allows foreign nationals to be admitted to the United States, upon a basis of reciprocity, as a bona fide representative of a foreign press, radio, film or other foreign information media, for a period of one year. Spouses and unmarried children under 21 are included in this class.
This category includes foreign nationals who will participate in a program approved by the U.S. Information Agency. Participants include students, scholars, trainees, teachers, professors, research assistants, specialists, au pairs, or leaders in a field of specialized knowledge. Certain exchange visitors are required by law to return to their home country for a period of two years to impart the knowledge they gained in the United States before they may re-apply to enter the United States. Waivers of this requirement are sometimes available. Spouses of J-1 nonimmigrants are issued J-2 visas and are sometimes permitted to work in the United States.
K: Fiances or Fiancees of U.S. Citizens
This class covers those engaged to be married to U.S. citizens who are coming to the United States solely to conclude a valid marriage with the petitioner within 90 days after entry, and the minor children of such persons. The period of admission is 90 days, and is not subject to extension.
The L-1 category is for persons coming to the United States to work temporarily for the U.S. branch, subsidiary or affiliate of their foreign employer. To qualify for this category, a person must have worked for the foreign affiliate for at least one year immediately prior to transfer to the United States. This class includes only executives, managers and employers with "specialized knowledge" who will fill a position in one of these categories in the United States. The initial period of admission is three years. Extensions are possible up to a total of five years for specialized knowledge personnel and seven years for managers or executives. The spouse and children of L-1's may obtain derivative status as L-2's for the duration of the principal L-1 alien's status.
M: Vocational Students
The M-1 category includes persons coming to the United States to study at a vocational or other non-academic school, other than a language training program, that has been authorized by INS to allow foreign students to attend. M-1 students are generally not permitted to work, but may obtain a limited period of "practical training." Spouses and minor children are classified in the M-2 category.
N: Relatives of United Nations Employees
This class includes certain parents and children of foreign nationals who have worked for international organizations in the United States.
The O-1 visa category is for foreign nationals of "extraordinary ability" in the sciences, arts, education, business and athletics, as demonstrated by "sustained national or international acclaim." This class requires prior consultation with unions, management groups and other outside sources. Assistants to the principal nonimmigrant are admissible as O-2's. Spouses and minor children of O-1 and O-2 nonimmigrants are admissible in the O-3 class.
P: Performing Athletes and Entertainers
This visa category includes three subcategories of persons coming to perform in athletic or entertainment events. The P-1 class includes athletes performing as individuals, or groups and entertainers performing as a group recognized at an international level. The P-2 class includes athletes and entertainers entering to perform under reciprocal exchange programs. The P-3 class includes those entering to perform in a culturally unique program. The P-1 and P-3 classes require consultation with U.S. unions to determine eligibility. Spouses and minor children of P-1, P-2 and P-3's are admissible as P-4's.
Q: Cultural Exchange Visitors
This class includes persons participating in designated international cultural exchange programs. Sponsors of such programs must employ at least five persons, including the foreign national. The maximum admission period permitted is fifteen months.
R: Religious Workers
This class includes ministers, professional religious workers and other religious workers entering the United States to work at an affiliated U.S. entity, and who have worked for the religious organization abroad for at least two years prior to application. The initial period of admission is three years.
S: Aliens who Assist with Law Enforcement and Anti-Terrorism Efforts
This class allows certain aliens to be admitted to the United States to testify in criminal cases. This category also authorizes the admission of a limited number of alien informants. The period of admission is limited to three years.
TAX NOTES
Residence for tax purposes
U.S. law creates a statutory definition of the term "resident alien" for tax purposes. There are two tests, one based upon visa status, the other based upon "substantial presence" in the United States.
First, an alien who has been granted lawful permanent resident status is a resident for U.S. tax purposes, without exception. Absence from the United States for the entire year does not prevent the need to file a U.S. tax return, unless the alien's permanent resident status has been terminated under the immigration laws. Permanent resident status can be relinquished in appropriate cases.
Second, even many nonimmigrants can be deemed to be U.S. residents for tax purposes if they have been physically present in the United States for 183 or more days within the calendar year. This is known as the "substantial presence" test. Alternatively, one is deemed "substantially present" in the United States if he or she has been "cumulatively present" in the United States over the last three years for a sufficient number of days. Cumulative presence is calculated by a complex formula. An exception to the cumulative presence rules is provided for an individual alien who is able to show that his or her "tax home" and family connections remain in a foreign country.
Generally, non-residents holding A, F, G, J or M visas are not considered residents for tax purposes. However, non-residents who are engaged in trade or business in the United States or who have U.S.-source income may have to file form 1040-NR and pay applicable taxes on that income.
Estate taxes and immigration status
Ordinarily under U.S. law, if a person dies he or she can leave a certain amount to his or her spouse tax free. This is known as the "marital deduction." That deduction normally is not available where the surviving spouse is not a U.S. citizen unless there is a disposition by means of a qualified domestic trust. Accordingly, it may be important for spouses to consider careful tax planning or apply for naturalization as U.S. citizens to avoid excessive estate taxes.
Further, the federal income tax definition of resident does not apply for federal estate or gift tax purposes. Rather, one is a resident for estate or gift tax purposes if his or her "domicile" is the United States. If one dies a resident of the United States, i.e., is a "domiciliary," the estate is subject to U.S. estate tax on everything he or she owns, regardless of its location. If one dies a nonresident, the estate is subject to U.S. estate tax only on property situated in the United States.