Visas and Status, Generally

Posted October 4, 2012

Time is an elemental concept of the U.S. immigration system. For foreign visitors, the two words most often preceding an immigration question are “how long. . . ?” This is a pertinent inquiry, as a visa and one’s visa ‘status’ in the United States, although distinct in form, are alike in one important respect: both can expire at any given time based on complex rules intended to govern the foreigner’s actions within the country. Conversely, one may expire while the other remains valid. This layered permission aspect of U.S. immigration can and often does cause confusion and problems.

If you are a foreigner physically present in the United States, it is important to distinguish your status from your visa. The visa in your passport is much like a ticket, or a license, which, if granted (usually by a U.S. consulate or embassy abroad) merely allows you to apply for admission at a U.S. port-of-entry, under assumed qualifications based on your expressed intent in applying for the visa. A visa allows this application at the port-of-entry, but does not guarantee your lawful presence in the United States after entry. Your ability to maintain lawful presence in the United States under a particular visa category (B-2, J-1, H-1B, etc.) is governed after entry by rules related to your actual ‘status.’

If you are in the U.S. temporarily, such as a temporary worker, student, or visitor for business or pleasure, you possess non-immigrant status.  If you are in the U.S. with the intent of eventually obtaining permanent residence, you possess immigrant status.  Status, as such, is the initial focal point for legal analysis related to any foreigner’s current immigration circumstances and goals moving forward.

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Aliens of Extraordinary Ability – The O Visa

Posted November 29, 2011

The O visa category is reserved for aliens of extraordinary ability in the sciences, arts, education, business, or athletics (O-1), the artist or athlete’s support staff (O-2), and the spouse and/or children (O-3) of the principal O-1 visa holder.

To qualify, the alien must be coming to the U.S. to work in his or her area of extraordinary ability or achievement. The category does not include extraordinary ability in the arts, motion pictures or television.  There is currently no annual cap on O visas.

Evidentiary Requirements:

The U.S. employer should file the petition (Form I-129) with:

  • A written advisory opinion from a peer group (labor organizations included) or a person designated by the group with expertise in the alien’s area of ability;
  • A copy of any written contract between the employer and the O-1 visa beneficiary, or a concise summary of the terms of the agreement under which the O-1 (and O-2, if any) visa beneficiaries will be employed, including location(s) and duration of employment;
  • Evidence that the O-1 visa beneficiary has received a major, internationally-recognized award, or evidence of at least three of the following:

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E-1 Treaty Trader Visa Requirements

Posted November 25, 2011

The Immigration and Nationality Act (INA) provides non-immigrant visa status for a national of a country with which the United States maintains a treaty of commerce and navigation, and who is coming to the U.S. to carry on substantial trade, including trade in services or technology, principally between the U.S. and the treaty country.  8 U.S.C. § 1101(a)(15)(E)

The principle legal requirements are:

  • The trading firm for which the applicant is coming to the U. S. must have the nationality of the treaty country;
  • The international trade must be substantial in the sense that there is a sizable and continuing volume of trade;
  • The trade must be principally between the U.S. and the treaty country, which is defined to mean that more than 50 percent of the international trade involved must be between the U.S. and the country of the applicant’s nationality;
  • Trade means the international exchange of goods, services, and technology;
  • Title of the trade items must pass from one party to the other outside of the U.S.; and
  • The applicant must be employed in a supervisory or executive capacity, or possess highly specialized skills essential to the efficient operation of the firm.  Ordinary skilled or unskilled workers do not qualify.

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Late to Extend or Change Non-Immigrant Status?

Posted November 16, 2011

Suppose, through inadvertence or otherwise, you have missed the deadline to apply for an extension or change of your non-immigrant status while physically present in the United States.  Must you leave the country?  Are there any circumstances under which the failure to timely apply for an extension or change of non-immigrant status may be excused?

Yes, but under very limited circumstances.  According to the law, the failure to timely file applications for an extension of non-immigrant status or a change of non-immigrant status in the U.S. may be excused by a USCIS  District Director if circumstances warrant.  8 C.F.R. §248.1(b) and §214.(1)(c)(4).  Here is the regulation:

8 CFR §248.1(b)

b)  Timely filing and maintenance of status.  A change of status may not be approved for an alien who failed to maintain the previously accorded status or whose status expired before the application or petition was filed, except that failure to file before the period of previously authorized status expired may be excused in the discretion of the Service, and without separate application, where it is demonstrated at the time of filing that:

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