Persons entering the United States as visitors may do so either for business (B-1) or for pleasure (or medical treatment) (B-2). Individuals seeking entry as visitors must be able to demonstrate that: the purpose of the trip is to enter the U.S. for a temporary purpose; that they plan to remain in the country for a specific, limited period of time; and that they have binding ties outside of the United States which will ensure their return abroad at the end of the temporary stay. While at the discretion of the admitting officer, the general period of admission granted to visitors is six (6) months.
Persons who are nationals of countries that participate in the Visa Waiver Program (see: http://travel.state.gov/visa/temp/without/without_1990.html#countries) may seek entry in B-1 or B-2 status on a visa-exempt basis for up to ninety (90) days at a time. This period of admission is not extendable. Since early 2009, VWP travellers have also become subject to obtaining an online ESTA (Electronic System for Travel Authorization) clearance prior to any travel to the United States. See: http://www.cbp.gov/xp/cgov/travel/id_visa/esta/. This ESTA can generally be obtained within minutes but may be delayed or even denied in the case of those who have previous visa or immigration violations.
With the exception of Canadian citizens, those not qualified to seek entry under the VWP, must apply in advance to a U.S. visa post outside of the U.S. for an entry visa.
Canadian or Mexican citizens engaging in professional activities in the United States can seek admission to the United States for a period of up to three (3) years. Canadians may apply for and receive TN Status upon arrival at most United States ports of entry (i.e. airport pre-flight inspection or land border crossing). Mexican citizens must file a visa application with a United States Embassy or Consulate prior to their entry to the U.S. Some eligible professions include:
To qualify for TN Status in the U.S., the applicant must generally have a university-level education in a related field and have a job offer in the United States. It should be noted that Management Consultants may qualify with five years of related experience in lieu of a university degree and Scientific Technicians and Technologists may qualify with sufficient theoretical knowledge and practical problem solving ability.
L-1 Visas are available to employees who are to be intra-corporately transferred to the United States from a foreign affiliate, parent or subsidiary of their proposed U.S. employer. Such individuals must have been employed abroad on a full-time basis for at least one continuous year in the past three (although they need not be currently so employed).
L-1A Visas: Eligible employees include high-level executives, departmental directors, partners, upper management personnel and functional managers. “Managerial capacity” generally refers to the ability of the employee to supervise and control the work of professional employees and to manage the organization, or a department, subdivision, function, or component of the organization. It may also refer to the employee’s ability to manage an essential function of the organization at a high level, without direct supervision of others. “Executive capacity” refers to an employee’s ability to make decisions involving broad discretion and considerable latitude.
L-1B Visas: Granted to individuals who have specialized knowledge of their employer’s business processes, methodologies and products and their applications in international markets. “Specialized Knowledge” is defined as either special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures.
In most cases, L-1 Visas are issued for an initial duration of three years with two further two-year extensions available to executives and managers and one further two-year extension available to specialized knowledge personnel. Eligible employees must have been employed on a full-time basis by the foreign transferring company for at least one (1) continuous year in the three (3) year period preceding the transfer. Spouses of L-1 visa holders are issued L-2 visas and may seek employment authorization in the United States.
E-Visas are based on trader or investor treaties that the United States has signed with a number of countries around the world. Such countries include Canada, the United Kingdom, Argentina, Bangladesh (investor only) and Pakistan. E-Visa applicants may qualify in one of two categories:
Trader visas are issued to individuals who can demonstrate that their U.S. enterprise is or will be involved in a substantial amount of trade with their country of nationality. In most cases, this means that more than 50% of the U.S. operation’s “international” trade is with the trader applicant’s country of nationality.
E-2 investor visas are available to individuals who are prepared to make at “at-risk” investment in or acquisition of a United States enterprise and who are seeking entry to the United States in order to develop and direct the project. While there is no set maximum or minimum amount of investment funds required, the investment cannot be considered marginal in the sense that the investment must be shown to create additional employment opportunities, lead to economic growth, or contribute to more than simply providing a living for the investor and his immediate family. The investment must also meet a “proportionality” test in that the total funds being committed by the investor comprise a reasonable and acceptable percentage of the total value of the investment.
In addition to the E-1 and E-2 classifications, there is a third E visa classification:
E-3 visas are available only to nationals of Australia who are coming to the United States to perform services in a specialty occupation (see H-1B visas below). The specialty occupation requires theoretical and practical application of a body of knowledge in professional fields and at least the attainment of a bachelor’s degree, or its equivalent, as a minimum for entry into the occupation in the United States.
Spouses of E-1, E-2 and E-3 visa holders may seek employment authorization in the United States.
F-1 and M-1 Visas are issued to individuals who plan to pursue academic studies, language training programs or vocational studies in the United States. Applicants must be enrolled in a full-time, “academic” educational, language-training, or vocational program; the school must be approved by and registered with U.S. Citizenship and Immigration Services; the student must demonstrate that he or she has sufficient funds available for the duration of proposed studies; and he or she must also maintain a residence or significant ties to a country outside the United States.
H-1B Visas are granted to applicants who are entering the United States to perform services in a specialty occupation. To qualify, an applicant must be able to demonstrate that the position in question has, as a minimum entry requirement, a United Stats baccalaureate degree or its equivalent either in terms of foreign education, employment experience, or a combination of the two. Eligible occupations may include – but are by no means limited to – accountants, lawyers, doctors, engineers, management consultants and systems analysts.
Note: before filing a petition for an H-1B applicant, the United States employer must obtain approval of a labor condition application from the U.S. Department of Labor as evidence that the applicant will be paid a wage that is in line with prevailing wages in the intended region of employment.
H-1B visas are subject to an annual quota of 65,000 visas of which approximately 7,000 visa are reserved for citizens of Singapore and Chile pursuant to Free Trade Agreements which the United States has in place with those countries. An additional 20,000 visas are made available to those holding Master’s degrees from US universities. The H-1B application processing period opens on April 1st of each calendar year with visa effective dates, if a petition is selected for processing and ultimately approved, of October 1st of each calendar year.
H-4 spouses of H-1B visa holders who hold H-1B visas pursuant to an approved PERM Alien Labor Certification, I-140 Petition and the provisions of American Competitiveness in the Twenty-First Century Act (AC21) may now seek employment authorization in the United States.
J-1 visas are issued to exchange visitors who will be participating in an eligible training or internship program in the United States. Available for up to eighteen (18) months, J-1 visas allow individuals to obtain work-based learning and to build on their academic experience by developing practical skills. J-1 applicants must be sponsored by a United States organization that has been approved to sponsor interns and trainees by U.S. Citizenship and Immigration Services. Some J-1 nonimmigrants may also be subject to a two-year foreign residency requirement in their home country.
K-1 Visas are issued to individuals who are coming to the United States to marry U.S. citizens and reside in the United States. U.S. sponsors or petitioners are required to have met their fiancé(e)s in person within the two years immediately preceding the date of application. As well, the marriage must take place within 90 days of the fiancé(e)’s entry to the United States. After marriage, the K-1 visa holder then applies from within the United States to Adjust Status to Permanent Residence by submitting an I-485 Application.
K-3 Visas are granted to individuals who are already married to U.S. citizens and who wish to reside in the United States pending completion of the processing of their Applications for Permanent Residence. While in the United States in K-3 status, an applicant is eligible to obtain an employment authorization document in the United States. The I-130 Petition for an Alien Relative and corresponding I-485 Adjustment of Status Application is then filed after admission to the United States in K-3 status.
Available to those having extraordinary ability in the sciences, arts, education, business or athletics or to those with sustained levels of achievement in the television and motion picture industries (O-1) and to those accompanying an O-1 artist or athlete who possess skills essential to and an integral part of the performance (O-2).
Granted to those coming to the United States as part of internationally-recognized entertainment groups and to internationally-recognized athletes (P-1); to artists and entertainers performing in reciprocal exchange programs (P-2); and to culturally-unique artists and entertainers (P-3).
Certain individuals may be authorized for temporary entry to the United States as Religious Workers. To qualify, the applicant must either be carrying on the vocation of a minister of that religious denomination; working for a religious organization in a professional capacity or working in a religious vocation or occupation for a tax-exempt organization that is affiliated with a religious denomination.
Those who are inadmissible to the United States, for example, due to criminality or medical reasons may need a nonimmigrant waiver before being able to seek entry to the country. For those who are applying for a U.S. entry visa to a visa post abroad, the waiver can generally be processed by the Consulate or Embassy abroad concurrently with the entry visa application.
In the case of Canadian citizens, an Application for Advance Permission to enter the United States must be filed with U.S. Customs and Border Protection. Generally speaking, one must demonstrate that there exist a legitimate basis for having to enter the United States and, in the case of those inadmissible due to criminal records, for example, that there has been some evidence of rehabilitation. Such applications can often take nine (9) months and often longer to process. It is important to note that Canadians who have criminal records for which they may have been granted a pardon by the National Parole Board of Canada may still be considered inadmissible notwithstanding.