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Other Nonimmigrant Visas

Overview of Nonimmigrant Visas (NIV)

A nonimmigrant visa is a temporary visa that allows an alien to stay in the United States for a specific period of time and for a specific purpose. It is very important for an alien to maintain his or her temporary status in the United States in order to preserve his or her eligibility for legal permanent residence. In most situations, an alien will be barred from obtaining legal permanent residency while remaining in the United States if he or she has not maintained continuous lawful status. Also, once the alien departs the United States to obtain an immigrant visa abroad, the alien may be subject to the three or ten-year bar to reentry depending the length, nature and timing of the alien's unlawful presence in the United States. An alien may be eligible for changing to another nonimmigrant status in order to maintain his or her authorized presence in the United States. The following is a description of some of the nonimmigrant visas.

Visitor/Tourist Visa (B-2)

A temporary work visa is available to business visitors: foreign nationals visiting the United States temporarily to conduct business that benefits for a foreign employer. Most often, B-1 visas are obtained so that an alien may consult, sell products, attend conferences or business meetings, evaluate investments, etc. in the United States. A B-1 may receive no compensation from a United States employer, nor may a B-1 perform productive work in the United States that United States workers could perform. In order to obtain a B-1 visa, the applicant must show that he or she has the ability to support him or herself in the United States, provide proof of the purpose of the business trip and demonstrate an intent to return to an unabandoned foreign residence.

NAFTA (TN Status)

Pursuant to the NAFTA treaty, citizens of Canada and Mexico may travel to the US for business or pleasure.  If coming to work in the United States, the alien may enter for up to a period of three years at a time in one of several specifically designated professional positions. There is no limit on the number of renewals.

Professionals of Canada or Mexico may work in the US if (1)they are citizens of Canada or Mexico; (2) their profession is on the NAFTA list; (3) they are to work for a US employer (self employment is not permitted); and (4) they have the qualifications of the profession.

Foreign Students (F-1 Visa)

An F-1 visa holder is a foreign student who is enrolled in a full-time degree or non-degree academic program in the United States and who is in good standing. A foreign student must maintain a foreign residence and demonstrate his or her ability to pay tuition and expenses in the United States. An F-1 visa is issued for an indefinite period of time (duration of status) and it expires once the student no longer maintains full-time status. F-1 degree students may be eligible for work authorization called practical training.

Business and Industrial Exchange Trainees and Workers (J-1 Visa)

A J-1 exchange visitor is an alien who is coming temporarily to the United States, pursuant to one of the following classifications, as a participant in a program designated by the Director of the United States Information Agency, for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, or receiving training:

  • Scholar
  • Trainee
  • Teacher
  • Physician (including foreign medical graduate)
  • Professor
  • Research assistant
  • International visitor
  • Government visitor
  • Camp counselor
  • Au pair
  • Specialist
  • Leader in a field of specialized knowledge or skill

The following is a more complete description of some of the categories of J-1 exchange visitors:

Alien Physicians: This category includes graduates of foreign medical schools pursuing graduate medical education or training at United States accredited schools of medicine or scientific institutions. The training may be clinical or non-clinical.

In order to pursue medical residencies and other clinical training in the United States as a J-1, the alien must enter the United States under the sponsorship of the Educational Commission for Foreign Medical Graduates (ECFMG). An alien who participates in this type of exchange visitor program is subject to a two-year home country physical presence requirement, which is rarely waived. However, it should be noted that the H-1B visa may be available for certain alien physicians who have not yet satisfied the two-year home residence requirement.

Au Pairs: Foreign nationals from the age of 18-26, who are secondary school graduates and proficient in English, may participate in an au pair program. The au pair lives with a United States host family and provides limited child care services while attending an accredited post-secondary institution. The au pair may work no more than 45 hours a week and must be enrolled for at least six academic credit hours (but courses may be taken for audit, rather than for credit). To obtain a J-1 visa as an au pair, the foreign national:

  • Must possess at least eight hours of child safety instruction;
  • May not care for infants under three months of age without a responsible adult being present;
  • Must be granted three days initially to adjust before beginning work; and
  • May care for children under two years of age only if the au pair has six months of prior infant care experience.

Two-Year Home Country Physical Presence Requirement:

The following J-1 aliens are subject to the two-year home country physical presence requirement:

  1. Those who are financed by their home government, the government of their last residence, or the United States government;
  2. Those whose skills have been determined by the United States Information Agency to be in short supply in their home countries, (per the "skills list" published by the United States Information Agency); or
  3. Those whose exchange programs involve graduate medical education or clinical training. The requirement is fulfilled by the alien's return to, and actual physical presence in, the home country for a period of two years; this presence may be cumulative and not continuous. The "home country" is defined as the country of nationality, or the country where the alien last had a residence.

Waivers of the two-year home country physical presence requirement:

  • Exceptional hardship to a United States citizen or permanent resident alien spouse or child.
  • Persecution to the exchange alien on the basis of race, religion, or political opinion.
  • Recommendation of a waiver based on its being in the national interest by an interested government agency, including a state public health department.
  • 'No Objection' Statement: Not available to a foreign medical graduate engaged in graduate medical education or training.

The two-year home residence requirements also applies to any J-2 spouse or dependent who accompanied or followed the J-1 to the United States during the exchange program that subjected the J-1 to the requirement.

Visa Waiver Program (VWP)

This program permits foreign nationals of certain countries to enter the United States as visitors (business or pleasure) without a visa. Nationals of the following countries are eligible for the VWPP: Andorra, Argentina, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, the United Kingdom and Uruguay.

There are several restrictions for VWPP participants, including the following:
A 90-day maximum period of stay, with no opportunity to extend or change status once in the United States (with certain exceptions). Also, if a participant in the VWPP departs the United States to travel to Canada, Mexico, Bermuda, or most of the Caribbean islands during his/her visit to the United States, he or she may reenter the United States but only up to the original 90-day limit.

The VWPP participant has no right to appeal an immigration officer's determination of admissibility. He or she also waives the right to contest an order of removal.
Please note that the VWPP has expired but that legislation is currently pending in Congress to extend the program

 

If you wish to investigate your eligibility for legal benefits discussed on this site, please consult with Attorney Monique Kornfeld:

Phone: 617-323-5049 • Email: mkornfeld@mhkimmigration.com • Newton, MA

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