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VISASOne common misunderstanding is quot;what is a visa"? The problem lies in the fact that an immigrant visa (a/k/a "green card"), a visa to enter the U.S. and a "visa" stamped in one’s passport are three completely different things. A visa is one’s passport (now a biometric card) allows a foreign national to apply for entry into the United States at a port-of entry (airport, designated border crossing etc...). Most commonly, a person interviews at a consulate, he/she is issued a "visa" which really is nothing more than a "pass" to board a flight, or to appear at a border port-of-entry to ask for a temporary visitor visa. Upon successful application for a "visa" to enter the U.S., that person is given an I-94 card, which is really the visa. That card will state the amount of time the person is authorized to remain in the United States. Visas are broken into to groups: Immigrant Visas, and Non-Immigrant Visas. The main difference between the two groups is that with an immigrant visa, the person intends to remain in the United States to live, work, and remain indefinitely. A non-immigrant visa is for persons wishing to come to the U.S. for a finite time, then return home. NON-IMMIGRANT VISAS
This is the most commonly issued visa category. The purpose of entering the U.S. is for tourism, recreation, or to make social visits of friends and relatives. However, coming to "visit" one’s spouse or paramour is a common reason for denial, since such a visit is probably not "temporary". The applicant needs to prove that his/her visit is not permanent, that he/she has a reason to return. This office frequently prepares clients for consular application of the B-2 visa. There are certain things consular officers really look for in determining one’s intent to return. There is a presumption that a foreign national intends to NOT return when applying for the B-2, and it is the applicant’s burden to overcome the presumption. Being young, single or with little or no significant connection (or financial resources) to your home country presents a difficult case. It is highly likely that without a convincing application with supporting documentation this person would not easily obtain a visitor’s visa.
The K-Visas, spousal and fiancé visas are a hybrid: the person plans to come to the U.S. to apply to remain permanently as an LPR. With the K-1 Visa, a fiancé(e) of a USC enters as a non-immigrant and has 90 days to marry. With the K-3 Spousal Visa, the spouse of a U.S. Citizen may enter the U.S. as a non-immigrant and have a set period of time to apply for residency. Additionally, the V Visa, allows certain alien spouses and children of LPRs to live and work in the U.S. while processing an immigrant visa or adjusting status to LPR. The I-130 Petition for Relative must be have been filed no later than December 21, 2000 to qualify. The problem with these categories, is that the true intention is not non-immigrant, that is, the person is entering fully intending to remain here, live and work etc... What if the spouse, K-3 needs a state driver’s license? Try explaining that to your local DMV! Chances are, your spouse will not be allowed to live here with the same benefits as a person with an immigrant visa under state law. Some people might opt for consular processing , which will grant residency in less time. There are other issues involving income requirements that might counsel for one category over the other. Only an immigration attorney with knowledge in these areas may advise you as to which category might work best in your situation.
The Exchange Categories: The J & Q Visas
The J-1 exchange visitor visa is available to foreign nations who are bona fide students, scholars, trainees, professors, teachers, research assistants, specialists or leaders in a field of specialized knowledge, or others similarly-situated who are coming to the U.S. to participate in a program, designated by the U.S. Information Agency for the purposes of teaching, studying, consulting, doing research, receiving training, who meet other requirements under Section 212(j). With this category, spouses and minor children may accompany or follow to join the holder of the visa. There are many variations regarding ability to work, length of authorized stay, and categories/qualifications. The J-1 includes, camp counselors, au pairs, international visitors-participating in professional tours, conferences, meetings etc..., and flight trainees inter alia. This category is subject to SEVIS (Student and Exchange Information Systems) tracking requirements. Although medical graduates qualify for this category, international medical graduates seeking clinical training might obtain a greater benefit with the H-1B Visa. There are additional requirements regarding change of status between J-1 to other categories. Your attorney will advise you regarding change of status issues.
TEMPORARY WORKER VISAS
The H-2B visa is a viable option for businesses involved in: the green industry, (such as landscaping), golf courses, amusement parks, resorts, businesses involved in summer tourism and recreation. If your business has a seasonal need, we can help. To qualify for H-2B visas, both the job itself and the petitioning employer’s need for the specific worker must be temporary. Furthermore, the employment of the foreign applicant must not displace willing U.S. workers who would be capable of performing the same job. The employer’s need must be either a one-time, seasonal, peak load or intermittent need.
There is much hope and speculation that there might be comprehensive immigration reform which includes a temporary worker component. If such a law passes, there would be a need to balance the pros and cons of filing for H-2B’s. One difference between a guest worker visa and an H-2B would be the ability to hire workers who are already here, with their own housing and many will already have experience and training under their belts.
ENTERTAINERS: O & P VISA
The Q Visa requires an employer-sponsor maintaining an establish international cultural exchange program. This category is used mainly by the Walt Disney Program to sponsor workers who share information about their own cultures to the U.S. public. This visa category is relatively minor.
TREATY TRADERS: The E Visas
INFORMANT VISA: S VISA
INFORMATION MEDIA: I VISA
IMMIGRANT VISAS:
U.S. Consulates process immigrant visas and non-immigrant visas. All foreign nationals seeking a temporary visa, unless from a visa-waiver country, are required to apply for their visa prior to seeking admission into the United States. The term "consular processing" refers to the process of seeking residency (or a "green card") from outside of the U.S. Thus, one enters the United States as a fully adjusted permanent resident. For spouses of U.S. citizens, this is probably the quickest way to obtain residency. For spouses of U.S. Citizens or legal permanent residents who marry a foreign national who entered the U.S. without inspection ("E.W.I."), this is the only way to obtain residency (if the spouse is not in removal proceedings), since a waiver of inadmissibility would have to be adjudicated at a consulate. I emphasize this because we deal with this issue quite often. Many U.S. citizens marry someone who has entered illegally and now want to "get the papers" for their spouse. Unfortunately, many people mistakenly believe that marriage to a U.S. citizen confers either automatic citizenship or a right to a "green card". The issue becomes even more complicated if the spouse has been previously deported. In the case of a single entry without inspection, the spouse will be unable to obtain a "green card" without what is known as a "waiver". The consulate will be balancing the hardship to the U.S. citizen and family against the undesireability of allowing the (law-breaking) foreign spouse. Only an attorney with knowledge in this area ought to handle a waiver case. However, there is a high success rate at certain consulates for those seeking these waivers. In the case of someone previously deported, there are certain bars of admissibility which may not be waived for 10 years. It may not be advisable to leave the country for this reason. Additionally, there might be a chance to adjust status to permanent resident from within the U.S., depending upon which federal circuit the family resides in. Again, an immigration lawyer is needed to sort all of this out. In addition to the "permanent bar", there is a federal criminal re-entry statute which could cause a spouse of a USC to end up in a federal prison before his/her deportation from the United States.
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