Guide to Immigration Law
Only foreign nationals who have extraordinary ability in the arts, sciences, education, business or athletics can apply for a visa as a temporary worker in a selected occupation. O-1 visas are specifically for people who have sustained national or international recognition for achievements in their fields. Evidence of recognition includes internationally recognized awards or prizes of excellence i.e., Nobel prizes in any category.
While there is no statutory limit to the number of O visas given, obviously, not many people will qualify for these visas. The expiration date usually set at a time beyond the event or activity which brings the visa holder to the United States (for up to three years).
Eligibility for O-1 Visas
O-1 visas are also available to people who have three of the following:
- Membership in an association which requires outstanding achievement from its members
- Published material in professional or major media about the alien's work in the field
- Participation as a judge of the work of others
- Essential or critical employment for an organization
- High salary
- Other comparable evidence
Treaty Trader Visa (E-1) and Treaty Investor Visa (E-2)
In an effort to encourage trade and investment in order to build and promote the United States' economy, the Immigration and Nationality Act created visas to national of countries with which the United States maintains a treaty of commerce and navigation. The purpose of the visas is to allow foreign nationals to come to the United States to carry on substantial trade, including trade in services or technology, principally between the United States and the treaty country,
Requirementsfor E-1 and E-2 Visas
Foreign nationals wishing to come to the United States with the purpose of engaging in trade between the United States and the applicant's country of nationality can apply for a treaty trader visa (E-1 visa). The requirements for the E-1 visa are as follows:
- The trade must be substantial
- The applicant must be coming to the United States to carry out or develop the operations of an enterprise with commercial trade.
- Trade means the international exchange of goods, services, or technology.
People wishing to come to the United States with the purpose of investing in an enterprise in the United States may apply for a Treaty Investor Visa (E-2). The following requirements must be met for an E-2 Visa:
- The investor (whether an individual or a corporation) must be a national of a treaty country.
- The investment must be substantial and must be sufficient to cover the successful operation of the enterprise.
- The investment must be a real operating enterprise. Speculative investments do not qualify.
- The investment must either generate significantly more income than just to provide for the investor and family, or it must have a significant impact on the United States.
- The investor must have control of the funds
- The investor must be coming to the United States to direct the enterprise. In addition to the investor, an executive or highly specialized employee may apply for an E-2 visa if s/he is responsible for directing the enterprise.
Student Visas
Students who want to study in the United States will need a visa if they plan to study for more than 18 hours a week. Students intending to take a short course of study consisting of less than 18 hours a week may be able to do so with a visitor visa and should contact their U.S. Embassies or Consulates.
First time student-visa applicants must have a sponsoring school petition on their behalf. The USCIS keeps a list of approved schools and typically a student visa will only be issued if the student has been accepted to a school on the approved list. Most first time student visa applicants will be required to appear for a personal interview. Whether a personal interview is necessary depends on the requirements of the individual embassy or consulate. June, July and August are the busiest months and the most difficult times to schedule an interview. It is important to apply as soon as possible to minimize consequences of delay.
Embassies and Consulates are able to issue a student visa 120 days or less in advance of the course of study registration date. All initial, or beginning, students may not enter the United States more than 30 days before the start date of the course of study. They may enter anytime 30 days or less before the start date of the course.
A student who wants to come to the United States before the 30 day timeframe can apply for a visitor visa. S/he should travel with both visas and should explain his/her intent to study to the Customs and Border Protection officials. When the student is ready to begin the study portion of his/her visit, he/she must file for a change of status. Continuing students can apply for a new visa anytime as long they are have maintained student status. Continuing students may enter the United States at any time prior to their classes starting.
SEVP and SEVIS
The Student and Exchange Visitor Program (SEVP) was created by the Department of Homeland Security and the Department of State to better monitor the visitors who come to the United States on F, M, and J visas. Students going to the United States for academic studies or language training will be issued an F visa. Students going to the United States for non-academic or vocational studies will be granted an M visa. Non-immigrant student visas receive F and M visas while exchange students receive J visas. The program also helps monitor the dependents of the students and exchange visitors who receive F-2, M-2, and J-2 visas.
They have created an internet-based system which holds accurate and up-to-date information on all student and exchange visitors and their dependents. The system is called SEVIS which stands for Student and Exchange Visitor Information system. The system allows schools and program sponsors to submit required documentation electronically through the internet. SEVIS makes submission and updating of all material faster and more secure. SEVIS makes it possible for the Department of Homeland Security to constantly monitor students and exchange visitors during their stay in the United States.
All student applicants have a SEVIS generated I-20 issued by an educational institution and approved by the Department of Homeland Security. Both the student and a representative from the school must sign the I-20. This I-20 must be submitted when a student applies for his/her visa. There is a fee for processing applications.
Every student has a unique set of circumstances and academic needs. Each student therefore may have different requirements and a different interview experience when applying for a student visa.
Requirements
When applying for a student visa, all applicants will need the following:
- Form I-20 which was provided to you by your school (the school is responsible for entering information into SEVIS). Students must pay the fee for SEVIS. Questions should be directed to the director of your school or study program.
- A personal interview at the Embassy or Consulate (digital fingerprints and other biometric information will be collected at the interview)
- A passport valid for travel to the United States which does expire until after six months beyond the applicant's intended stay
- A 2 x 2 photograph
- A receipt for the visa application fee and a separate receipt for the SEVIS fee
- Students who are also authorized for Optional Practical Training must have an I-20 which has been endorsed for Optional Practical Training and must also provide a USCIS-issued Employment Authorization Document.
- If bringing dependents to the United States, student will need to provide proof of the student's relationship to the dependents. If traveling separately, dependents should carry a copy of the student visa holder's passport.
Additional documents which may be requested are:
- Transcripts and diplomas from previous institutions attended
- Test scores from any tests taken for admittance into the educational program
- Financial evidence which shows you or your parents have sufficient funds to cover tuition and living expenses during the intended period of study.
Foreign Medical Graduate Students
While all J-1 visa holders must guarantee they will return to their home countries following their studies, foreign medical graduate students have more requirements. The following are rules directed only at foreign medical students:
Before applying for the visa, you must have passed Parts I and II of the U.S. National Board of Medical Examiners (or its equivalent)
You must have a written guarantee from the government of your home country that you will have employment available to you upon completion of your U.S. medical training
You must return home for at least two years before you can apply for green card in the U.S. (this requirement can be waived in some circumstances if the medical graduate agrees to provide services for an under-served population in the U.S.
The length of time for the visa will be the length of time it takes to complete the graduate medical program up to a maximum of 7 years (there are rare exceptions to the maximum).
Q Visa
A Q visa is available to international cultural exchange program participants. An international cultural program is one in which the public can be exposed to foreign culture and history in a structured program, which is often arranged through a school, library, or business. If the Q visa holder is employed, the work must be incidental to the cultural component. The work must involve the sharing of the history and culture of the visa holder's home country. The sponsor of the cultural program must petition for the visa holder in the application process.
Exchange Visitor Visa: J-1
The Mutual Educational and Cultural Exchange Act of 1961 was written to encourage better understanding between people in the United States and other countries through an exchange of cultural and educational experiences.
An exchange visitor visa is available to visitors to the United States who are teachers, scholars, students, research assistants, medical graduates, and participants in a program of study arranged through the Department of State and its Bureau of Educational and Cultural Affairs.
Exchange Visitor Visa Requirements
The following requirements must be met in order to get an exchange visitor visa:
- Intent to come to the U.S. teach, study, consult, or work in an approved exchange visitor program
- Acceptance into the program before application for the visa
- Proof of financial resources to cover expenses while in the United States
- Knowledge of English sufficient to participate in the program (usually determined by the school the applicant will be working/studying in).
- Intent to return to home country before expiration date of visa
J-1 visas are good for up to five years. One exception is for exchange students between the ages of 15 and 18 and a half who are participating as high school students; they can only stay for a maximum of one year. They are not allowed to work with the exception of odd jobs like babysitting.
Au Pairs
- Au Pairs can come to the United States on a J-1visa. The requirements for an au pair are as follows:
- Au pair is between age 18 and 26
- Au pair must be paid at least the minimum wage
- Au pair cannot work more than 10 hours a day or 45 hours a week
- Au pair must attend an institution of higher education and must earn six hours of credit
- Au pair must live in the home and provide child care, but not housework or other kinds of work
- Au pairs are only allowed to stay in the U.S. for one year on the J-1 visa.
Foreign nationals applying to study in the United States can apply for an F-1, M-1 or J-1 visa. While a J-1 visa may be more restrictive than the other types of visa, if a student is not concerned about changing classes or schools, the J-1 visa makes getting work authorization easier. It is important to know that some J-1 visas require a two year home residency. If a student goes to the U.S. on a J-visa and later wants to adjust status to a permanent resident, she would have to go back to her home country upon completion of the J-1 visa to fulfill the home residency requirement.
- This article is provided for informational purposes only. If you need help with an immigration question, click here to consult with an Immigration Lawyer in your area.
