Visas: an Overview
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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 U.S. Citizenship and Immigration Services (USCIS) to be classified in one of the nonimmigrant or immigrant visa categories. If the USCIS 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 USCIS also issues permanent resident alien cards to immigrants in the United States.
The following is a list of common nonimmigrant and immigrant visa categories.
Nonimmigrant Visa Categories
There are approximately 24 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.
B-1: Visitors for Business
This class includes foreign nationals who intend to conduct business for a foreign employer. A B-1 visitor may not displace an American worker, or receive compensation from an American source.
B-2: Visitors for Pleasure
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.
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.
E-1: Treaty Traders
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 or she is representing. The initial period of admission is one year. Extensions of stay are possible.
E-2: Treaty Investors
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 in appropriate circumstances.
F: Academic Students
An F-1 student is admitted to pursue a full course of study at a school or institution approved by the USCIS 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-1B: Temporary Professional Workers
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 is required to 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 USCIS, and is not to exceed one year. Extensions are available in limited circumstances for a maximum period of three years.
H-3: Trainees
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.
J: Exchange Aliens
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, 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. Spouses of J-1 nonimmigrants are issued J-2 visas and are sometimes permitted to work in the United States.
K: Fiancés or Fiancées 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.
L: Intra-company Transferees
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 USCIS 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.
O: Aliens of Extraordinary Ability
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 before 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.
TN: Professionals Under NAFTA
This visa category is a nonimmigrant classification provided for under the North American Free Trade Agreement. It allows citizens of Mexico and Canada to work in the U.S. provided that: the prospective position is on the list of NAFTA professions; the foreign national possesses the specific criteria for that profession; the prospective position requires someone in that professional capacity; and the foreign national is going to work for a U.S. employer. The spouse and children of TN nonimmigrants are entitled to derivative status, but they are unable to accept employment in the U.S.
V: Spouses and Children of Permanent Residents
This visa category allows certain spouses and children of Lawful Permanent Residents to travel to and reside in the U.S. while they await the completion of their immigration process. To be eligible for a V visa, applicants must: meet the eligibility requirements for immigrants; have had an I-130 petition filed on or before December 21, 2000; and have waited three years since the filing of the petition without having been scheduled for a visa interview. Applicants may be waiting either for USCIS approval of their petition or, if the petition has been approved by USCIS, for availability of a visa number in order to complete immigrant visa processing.
Immigrant Visa Categories
An immigrant or lawful permanent resident ("LPR") is someone admitted to the United States permanently. To obtain immigrant status, an applicant must meet both the substantive and numerical requirements of the law. Substantively, one must qualify as a specified close relative of a U.S. citizen or another LPR, as an employee of a sponsoring employer or prospective employer, or as a "diversity immigrant" under a visa "lottery" program. Further, the potential immigrant must not fall within any of the general categories of inadmissible aliens specified in the law, such as criminality, mental defect, Communist party affiliation, drug trafficking, or terrorism.
In addition to substantive requirements, there are also country-specific and world-wide statutory quota limits imposed on most categories of family and employment-based immigrant visas. These quota limitations often can result in extended waiting periods before immigrant status may be obtained.
Currently, about 670,00 immigrant visas are available each year.
A. EMPLOYMENT-BASED IMMIGRANTS
There are five employment-based immigrant visa categories. Three of these categories have additional sub-categories. The employment-based immigrant visa categories are as follows:
Employment-Based Category 1 (EB-1)
PRIORITY WORKERS
The first employment-based category covers "priority workers." No labor certification is required in this category. Roughly 40,000 visas have been allocated annually to this group. This category has three subcategories.
Category 1 - Sub-category A
Aliens with "extraordinary ability" in arts, sciences, education, business or athletics - To qualify in this sub-category, the applicant must show sustained national or international acclaim and achievements recognized through extensive public documentation, and must be able to demonstrate that his or her contribution would "substantially benefit" the United States prospectively.
Category 1 - Sub-category B
Outstanding professors and researchers - To qualify in this sub-category, the applicant must establish international recognition or acclaim, must have at least three years' experience in teaching and research in the field, and must have an offer of employment for a tenured or tenured-track teaching position at a U.S. university or college, or a comparable research position in private industry.
Category 1 - Sub-category C
Certain multinational executives and managers - This sub-category provides an immigrant visa for individuals who were employed as executives or managers overseas during at least one year within the three-year period immediately prior to transfer into the United States, and who are transferred to the United States to perform executive or managerial duties. The overseas and U.S. employers must be the same or affiliated entities. The definitions of executive capacity and managerial capacity are fairly broad, and include managing a function, not just employees.
Employment-Based Category 2 (EB-2)
PROFESSIONALS AND ALIENS OF EXCEPTIONAL ABILITY
The second employment-based category annually allows for 40,000 visas, plus any spilldown of unused visas from Category EB-1. This category has two sub-categories. The first is open to members of the professions holding advanced degrees (e.g. above that of baccalaureate) or their equivalent. The second sub-category is available to those who, because of their exceptional ability in the sciences, arts or business, will substantially benefit the national economy, cultural or educational interests, or welfare of the United States. Under the second sub-category, the applicant's exceptional ability must be demonstrated by more than just a degree or license, and must be substantially above that normally encountered in the sciences, arts or business.
An applicant in this category generally must obtain a labor certification for his position. However, a specific job offer and labor certification may not be necessary if an applicant can demonstrate that such an exemption would be in the national interest.
Employment-Based Category 3 (EB-3)
SKILLED WORKERS, PROFESSIONALS AND OTHER WORKERS
This category also allows for 40,000 visas annually, plus any spilldown of unused visas from Categories EB-1 and EB-2. There are three sub-categories in this category. An applicant in each of these sub-categories usually must obtain a labor certification for his or her position.
Category 3 - Sub-category A
Skilled workers - An alien qualifies as a skilled worker if, at the time of petitioning for classification, he or she is capable of performing skilled labor requiring at least two years training or experience, and is being sponsored for a permanent position for which qualified workers are not available in the United States.
Category 3 - Sub-category B
Professionals - This sub-category encompasses aliens holding baccalaureate degrees or their equivalent who are members of the professions.
Category 3 - Sub-category C
Other workers - This sub-category is reserved for aliens capable of performing unskilled labor, not of a temporary or seasonal nature, for which qualified workers are not available in the United States. A cap of 10,000 visas within the overall 40,000 annual limit for Category EB-3 is set for applicants seeking to qualify in this sub-category.
Employment-Based Category 4 (EB-4)
SPECIAL IMMIGRANTS
This category has 10,000 visas available per year, and encompasses religious workers, certain former United States government employees, and certain foreign nationals working for international organizations.
Employment-Based Category 5 (EB-5)
EMPLOYMENT-CREATION IMMIGRANTS
This "immigrant investor" category provides up to 10,000 visas annually to applicants who invest a minimum of $1 million in a new enterprise in the United States that will create jobs for at least ten United States citizens or permanent residents, other than immediate family members of the investor. In certain targeted employment areas, the investment may be reduced to $500,000.
B. FAMILY-BASED IMMIGRANTS
There are two basic types of familial relationships that serve as a basis to apply for permanent resident status: immediate relatives and family-sponsored preference immigrants. There is a worldwide cap on family-sponsored immigrants of 480,000 per year.
Immediate Relatives
Spouses and minor (i.e., under 21) unmarried children of United States citizens, parents of United States citizens (provided the citizen is over 21 years old), and certain spouses of deceased United States citizens can qualify for an immigrant visa as immediate relatives. There are no numerical limitations on this category of immigrant visas. While not immediate relatives, the following two groups appear in the same section of the statute because they also are not directly subject to numerical limitations: an alien born after the issuance to an alien of an immediate relative visa, but before it is used to apply for admission to the United States; and an alien born to a lawful permanent resident during a "temporary visit" abroad.
Family Sponsored Immigrants
Each family preference category has its own annual allocation of visas under the worldwide limit on family-based visas. The current family-based preference categories and annual numerical limits are:
Family First Preference (23,400 visas)
Unmarried sons and daughters of
United States citizens
Family Second Preference (114,200 visas)
(a) Spouses and unmarried children
of permanent resident aliens
(b) Unmarried adult sons and
daughters of permanent resident
aliens
Family Third Preference (23,400 visas)
Married sons and daughters of
United States citizens
Family Fourth Preference (65,000 visas)
Brothers and sisters of United
States citizens, if such citizen
is at least 21 years of age.
In addition, the spouse or child of the principal alien is entitled to the same status and order of consideration, if accompanying or following to join the spouse or alien.
C. DIVERSITY IMMIGRANTS
"Diversity immigration" refers to a concept of allowing people a chance to immigrate to the United States even if they lack close relatives or a job offer.
The permanent diversity program began October 1, 1994. Under that program, 50,000 immigrant visas are available each year to people from countries that traditionally have not had much immigration to the United States in the past. To qualify for this program, applicants must have at least a high school education or its equivalent, or have worked two years in an occupation that requires two years of training or experience.
The permanent diversity program is aimed at helping potential immigrants from such regions as Africa and Europe. Millions of people apply for the permanent diversity visa program every year.
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 and 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 applying 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.
For further information on these or any other immigration issues, please contact Miller Mayer, LLP.