Q: What are the various nonimmigrant visas?

A: There is a wide range of nonimmigrant visa categories, each serving a different purpose:

A - Diplomatic employees and their households
B - Business visitors (B-1) and Visitors for Pleasure (B-2)
C - Transit visa
D - Crew member
E - Treaty Visa (E-1 Treaty Trader) (E-2 Treaty Investor)
F - Students
G - Employees of International Organizations
H - Temporary Workers (minimum of a university degree required)
I - Representatives of international media
J - Exchange visitors
K - Fiances
L - Intracompany transferees
M - Language and vocational students
N - NATO employees
O - Extraordinary ability aliens
P - Athletes, entertainment groups
Q - Cultural exchange visitors
R - Religious workers
S - Criminal informants

Q: I have a visitor's visa. May I work?

A: This visa classification is designed for foreign nationals desiring to come to the United States temporarily for either pleasure (B-2) or for a legitimate business purpose (B-1). Neither B2 nor B1 classification is work authorized.

Q: What is considered legitimate business activity for B-1 purposes?

A: B-1 entrants may engage in commercial transactions (i.e. consulting with clients; contract negotiations, litigation, etc.) not involving gainful employment. Participation in educational, professional, business, or religious conventions is also permissible B-1 activity. Applicants for B-1 status must demonstrate a clear intent to continue a foreign residence. See other sections of this website for a more detailed description.

Q: Are there nonimmigrant visa categories that permit me to work?

A: Yes. The following nonimmigrant visas are the most commonly used for work:

The E -2 classification is useful for business owners who need to remain in the U.S. for extended periods of time in order to oversee a business enterprise. However, it is important to note that this category is available only if there is a treaty of commerce and navigation or a bilateral investment treaty between the United States and the foreign country. To qualify for treaty status, the foreign national seeking such status must be coming to the United States solely to develop and direct an enterprise in which he or she has invested (or is investing) a substantial amount of capital. This category may be used by a variety of businesses and companies and may be made by one individual or by a large multinational corporation. Unlike other nonimmigrant visa categories, the E-2 investor does not need to show that he or she is coming to the United States for a specific period of time. The investor is allowed to stay in the United States to manage and direct the investment for an indefinite period and may properly stay for many years.

The H-1B visa category is set aside for foreign workers in specialty occupations for which the foreign national employee has the necessary credentials. This generally means that the H-1B employee has attained a minimum of a bachelor's degree in the specific specialty as a minimum entry requirement into the occupation. Employees in this visa category may be filling permanent positions in the United States, as long as they depart the United States at the end of their authorized periods of stay. H-1B Petitions may be approved for an initial period of three-years and foreign nationals may be admitted to the United States for the full period. Petition extensions may be obtained to an additional three years, for a total period of stay not to exceed six years.

The H-2B category is used by United States companies to employ skilled or unskilled foreign nationals in nonagricultural positions for which the employer has a temporary need and for which qualified U.S. workers are unavailable. Unlike the H-1B category, the employers must seek a "labor certification" from the Department of Labor. The initial period of stay granted to foreign nationals admitted in this category is governed by the period of time that his or her temporary services are needed; must be reasonable in terms of the duties to be performed; and cannot be beyond an initial period of one year.

The L-1A visa classification (also known as intracompany transferee) is designed to assist international companies in bringing foreign employees to the United States. In other words, corporations doing business in the United States may transfer key foreign employees to the United States through this program. In order to qualify for L-1A status the foreign employee must have worked for the overseas company outside of the United States for a continuous period of one year in the preceding three years; the company in the United States and the company abroad must be related in a specific manner; both companies must be actively doing business; the employee to be transferred must have been employed in the overseas company in an executive or managerial position or in a position involving specialized knowledge; the employee must be transferred to fill one of the noted positions; and the employee's background and experience must qualify him or her for the position The L-1 Petition is generally approved for an initial period of three years, except in the case of a new business, in which case the Petition will be approved for a one-year period. Extensions for L-1 executives and managers can be approved for a period not to exceed seven years.

The O-1 visa category is set aside for foreign nationals with extraordinary ability in the sciences, arts, education, and athletics. Typically, only a person who is one of the small percentage who have risen to the very top of his or her field of endeavor will qualify for this type of visa. The initial period of stay can be approved for the time necessary to complete the event or activity, up to a period of three years, and there is no explicit limitation on the number of extensions.

The TN visa category was created for Citizens of Canada or Mexico seeking temporary entry to engage in business activities at a professional level and in accordance with the North American Free Trade Agreement (NAFTA).TN employees typically possess the minimum of a university degree, or other appropriate credentials demonstrating status as a professional. The types of positions this category includes are research and design; growth, manufacturing, and production; marketing; sales; distribution; and general service. Foreign nationals may be admitted to the United States in this status for the period of time required by the employer, up to a maximum initial stay of one-year. Extensions may be approved in one-year increments, with no outside limit on the total period of time.

Q: Can I travel on my current nonimmigrant visa or do I need to get advance parole?

A: Adjustment of status (I-485) applicants who maintain valid H-1 and L-1 nonimmigrant status do not need to obtain advance parole prior to traveling outside the U.S. if they travel in possession of a valid H-1 or L-1 nonimmigrant visa and the original I-797 receipt notice for the adjustment of status application. All other nonimmigrants with pending adjustment applications must still obtain advance parole before traveling outside the U.S. At this time, with the consular delays and security issues involved in issuing nonimmigrant visas, it may be a good idea to travel on advance parole if you currently have H-1 or L-1 status but do not have a valid visa.

Q: I am on H-1B status and want to switch employers. Do I have to wait for a new H-1B petition to be approved?

A: An H-1B worker can start working for a new employer after filing the change of employer H-1B petition with the CIS (rather than having to wait for an approval of that petition), provided that the worker has never worked without authorization.

Q: When my six years of H-1B time expires, can I then remain in the U.S. by changing my status to that of an H-4 dependent based upon my spouse's H-1B status?

A: The regulations permit an alien to spend a maximum of six years in the U.S. in H status, without differentiating between H-1B and H-4 classifications (see an exception in the question below). The law does not therefore allow a change of status from H-1B to H-4 (or vice versa) after the six years have been expended.

Q: If my H-1B status is due to expire before my I-140 is approved, what options do I have?

A: H-1B nonimmigrants whose labor certification or I-140 was filed at least 365 days prior to their H-1B expiration, may obtain extensions of their H-1B status beyond the six year limit, in one-year increments, until their immigrant visa petitions are decided or adjustments of status are granted. If the underlying labor certification or I-140 is denied, however, the H-1B status extension ends at that time.

Q: Why did I get a Request for Evidence on my case?

A: Requests for Evidence are becoming more and more common in all types of cases with the current atmosphere at the CIS. Many times they may ask for items which you have already submitted or which may not be legally required for your case. Your attorney can help you deal with these requests effectively. They are not necessarily an indication that your case will be rejected; they are many times merely a request for further documentation.

Q: My EAD is going to expire in a few months. What is the procedure for renewing it? Should the application be filed at my local CIS office or through the Service Center?

A: Routine EAD applications should be processed through the Service Centers (for employment-based cases). The Service Center has 90 days to adjudicate the application. If more than 90 days have elapsed since the I-765 receipt notice date and you do not have an EAD, it may be possible to get an interim EAD in person at a District Office. In addition, emergency EAD applications will be accepted by CIS District Offices. The District Office has discretion to determine whether the presented circumstances constitute an emergency.

Q: Can I work for my employer before I receive my H-1B approval if I am not paid for my services? Can I be reimbursed for services rendered after the H-1B approval comes through?

A: Volunteer services for a prospective employer may constitute unauthorized employment if the alien will ultimately derive some benefit from the work. If the alien expects future compensation or benefits, volunteer work may violate the alien's current status. Working on an employment-prohibited visa can permanently bar an alien from adjustment of status in the future.

Q: Can I switch employers while my I-485 is pending or do I have to wait until I am granted permanent resident status?

A: An individual who has filed an I-485 and whose application to adjust status has been pending for more than 180 days is allowed to change jobs within the same or a similar occupational classification without affecting the validity of her underlying labor certification or I-140 petition, providing that: (1) she holds a valid EAD; (2) she has never worked without authorization; (3) the I-140 has been approved; (4) the original employer has not formally revoked the I-140; (5) the new employer has the ability to pay at least the wage offered on the labor certification (both now and at the time your old employer started your permanent residency process); and (6) the pay of your new job meets at least the prevailing wage as determined for your I-140.

Q: Can I "recapture" time I spent outside of the U.S. during my H-1B eligibility to buy more time in that status after the end of my six years?

A: In some circumstances, aliens who have reached the end of their six year H-1B eligibility, but who have spent significant periods of time outside of the U.S. during that time, may be able recapture time spent outside the U.S. The CIS requires that the time spent outside the U.S. be "meaningfully interruptive" of the alien's H-1B employment (e.g., sick leave but not vacations). The burden of proof lies with the petitioning employer and the CIS is granted wide discretion in determining whether there was meaningful interruption of employment

Q: Do I have to get my medical exam done in the state where I live and work or can it be done by any designated "civil surgeon"?

A: All applicants for adjustment of status are required to have a medical examination performed by any civil surgeon who has been designated by the government.

Q: What will happen to my status and employment authorization if my F-1 Practical Training expires before I have an H-1B approval?

A: You must maintain valid employment authorization at all times in order to work in the U.S. If your F-1 practical training expires before you have H-1B approval, you should be removed from your company's payroll and cease working; however, if you maintained valid nonimmigrant status by filing of your H-1B petition prior to your OPT expiration, you may generally remain physically in the U.S. while that petition is pending, even if your time in F-1 status expires before you receive a decision from the CIS.

Q: Does my spouse automatically have H-4 status if I am granted H-1B status?

A: No. Your spouse (and dependent children) must apply for H-4 status separately. Remember to file a new I-539 for your spouse if you switch employers while on H-1B status so that your spouse's status will be extended for the same period of time as your current H-1B classification.

Q: I have being reading about a new section of the law that allows certain individuals already in the United States to obtain a green card. How will I know if that section applies to me?

A: In 1994, Congress enacted the original Section 245(i) which authorized eligible individuals to adjust their status in the US if an immigrant petition or labor certification was filed prior to January 14, 1998. Because many qualified people missed the January 14th deadline, and because others had since fallen out of status, Congress extended the benefits of 245(i) until April 30, 2001. There is a chance that Congress may further extend 245(i) benefits. Check this site for regular reports on the possible extension of benefits.

Q: How does an alien obtain a student visa?

A: The requirements are generally the same as for a visitor visa. However, in addition to the passport, photo, and proof of ties abroad, the applicant must also have an I-20 form issued by the school he/she wishes to attend. The I-20 form is proof that the applicant has been accepted for a program of study at an accredited institution.

Q: How does an alien in the U.S. change visa status?

A: Bureau of Citizenship & Immigration Services (BCIS) authorizes changes of visa status when an alien is in the U.S.

Q: Can the holder of an expired nonimmigrant visa, such as an "I" journalist visa, in the U.S. be issued another nonimmigrant visa before leaving the U.S. for a temporary absence?

A: In certain circumstances, yes. Visa Office does reissue A, E, G, H, L, and I visas, so long as there is the same type visa stamp already in the passport, and the date of expiration is not more than one year earlier. Journalists needing to renew their I visas may call 202-663-1213 between 2:00 P.M. and 4:00 P.M. eastern time daily.

Q: What is necessary for an alien to enter the U.S. to marry a U.S. citizen?

A: The U.S. citizen must file a fiance petition, Form I-129F, with BCIS will forward the approved petition to a U.S. embassy or consulate abroad. The post will then contact the alien with information and eventually schedule an interview for a fiance visa. The alien has 90 days from entry into the U.S. in which to marry the U.S. citizen.

Q: Does the fiance visa automatically change to an alien registration card (green card)?

A: No. After the marriage takes place, the U.S. citizen must contact BCIS to change the alien spouse's status to legal permanent resident. This information is given to the alien fiance upon his/her entry to the U.S.