What is a Visa?
A citizen of a foreign country who wishes to visit the United States must first apply for and obtain a visa. A visa will allow a non-citizen to visit the United States and stay for a temporary period of time. There are many visas available, depending on the reason of the person’s visit. Visas can be given for tourism, work, trade and education.
Visas are filed with the U.S. Citizenship and Immigration Services, USCIS, which is an agency of the Department of Homeland Security.
This guide provides general information and an overview on short stay visas.
Will I need an Immigration Lawyer?
Whether you should hire an immigration attorney is entirely up to do. If your case is highly complicated and you could be denied a visa, it is probably best to hire an attorney for your case.
You must weigh the pros and cons of hiring a lawyer. Filing the forms and documentation can be done without a lawyer but requires a lot of organization and patience. An experienced immigration lawyer can definitely help the process. On the other hand, immigration law is a highly specialized field of law and attorneys can usually cost anywhere from $200 to $400 an hour. As some cases take a while, you may be paying for a lot of hours of work.
All the required forms needed for visa applications can be found on https://www.uscis.gov/forms
Immigrant vs Non-Immigrant Visas
Generally, people think an “immigrant” is any person coming to America from another county. However, the definition of “immigrant” according to U.S. Immigration refers to a foreign-born person who has a green card or is lawfully permanent residence (LPR). A “non-immigrant” refers to any person who comes to the U.S. legally, but who only intends to stay in the country for a short time before returning to their home country. Thus, a non-immigrant visa allows a person to come and stay in the United States for a temporary basis. An immigrant visa allows for a person to enter the U.S. permanently.
Who cannot get a Visa?
Certain people, based on their history, are considered “inadmissible” for entry into the United States. This means that they are not eligible to apply for a visa, as they will be denied.
The U.S. have several grounds for inadmissibility, including:
- History of Crime: Person is ineligible based on past conviction of serious or violent crimes, including, murder, rape, child abduction, human trafficking, drug trafficking
- Crimes of “Moral Turpitude”: Person has a history of a conviction of a crime/s involving “moral turpitude.” Crimes of moral turpitude focus on honesty and character, and include fraud, tax evasion, perjury
- Health Reasons: Person has extreme mental illness, drug addiction, or is not vaccinated
- Likely to Receive Government Assistance: The U.S. can deny admission to a person who seems unable to financially support themselves and will likely go on welfare
If you believe you are in the category of inadmissibility, you should immediately contact a qualified immigration attorney to discuss your case and possibilities before you apply for a visa.
Immigration Waiver– I-601
In some cases, a person who is inadmissible can file an 1-601 Form, the “Application for Waiver of Ground of Inadmissibility.” In order to file a waiver, one must have a “qualifying relative,” who is either a U.S. Citizen or a lawfully permanent resident. The petition must also show that the qualifying relative (not you) would suffer extreme hardship if you were denied entry into the U.S.
An immigration waiver usually takes approximately 6 months and costs $930 to file.
The U.S. currently has a travel ban, which prevents citizens from certain countries from travelling to America or applying for a visa, residency, or asylum in the U.S. The seven countries currently banned are: Iran, Libya, Somalia, Syria, Yemen, Venezuela, and North Korea.
A person from a travel-banned country is inadmissible. They may apply for an immigration waiver, however, the likelihood of being granted a waiver is extremely unlikely. The travel ban has been upheld as legal by the U.S. Supreme court, so it will continue to be enforced. Most likely, people from a travel ban country will have to wait until the ban on their country becomes inactive, which will likely only happen when a charge of administration.
Fiancé or Spousal Visa
A visa can be obtained for a fiancé or spouse of a U.S. Citizen. The K-1is a visa to sponsor a fiancé. A K-3 visa is to sponsor a foreign spouse.
K-1 Fiancé Visa:
A K-1, or “Fiancé visa” is available to foreign-born citizens who have a U.S. citizen fiancé (permanent residents do not qualify.)
First, the sponsor must file the I-129F, “Petition for Alien Relative” Form for $535. After the I-129F petition is approved, then the K-1 Visa can be filed.
The couple is required to prove their intent to marry, as well as their intent to make the U.S. their permanent home. The other requirement is that the two people must have previously met in person and have seen each other within the past (2) years.
A K-1 visa application includes criminal background checks, medical examination, interview, and an Affidavit of Support. The sponsor/ fiancé must submit an Affidavit of Support, I- 134 stating that they can provide financially. The affidavit also promises that the sponsor fiancé will agree to repay the government, should the visa holder even be on government assistance.
One of the conditions of a K-1 visa is that it is only valid for 90 days. Once a K-1 is issued, the fiancé has (6) months to leave for America. Once they arrive in America, the couple must marry within 90 days. After the 90 days, they can apply for a permanent residency card if they marry.
If the couple does not marry within 90 days, the person must return to their home county. A K-1 visa can never be extended or renewed, so it should only be sought in situations where a U.S. Citizen and non-citizen intend to get married and live within the United States.
Once a K-1 visa is approved, the person can obtain a K-2 visa for any children they have under the age of 21. If the couple married within 90 days, the person then can apply for a green card. K-2 Visa children may also apply through a green card.
K-3 Marriage Visa
The K-3 visa is available for foreign-born spouse of a U.S. Citizen. Minor children may also enter the U.S. through a K-4 Visa. Both applications must be accompanied by an I-130 form, which is the “Application for a Foreign Relative.” After an I-130 is filed for $535, an interview will most likely be scheduled. The interview will try to confirm that the marriage is valid and real. The applicant will also have to provide information like their marriage certificate and birth certificates.
A married couple will need to prove their marriage was genuine and not just a plot to come to the U.S. They must produce evidence of a “bone fide” marriage. Examples of “bona fides” can be lease or mortgage, health insurance, and joint financial accounts and bills in both their names.
After one receives a K-3 visa, they can come to America and apply for Adjustment of Status and for the green card. An Affidavit of Support does not need to be filed for a K-3, however the applicant will have to show they can support themselves.
The green card received through a K-1 or K-3 visa has a (2) year conditional residence. The conditional green card is used for K-1 and K-3recipients in order to help determine potential fake marriages that are entered into for the purpose of claiming U.S. Citizenship. This means that after 2 years, one must apply for a I-751 to have the conditions lifted and receive an unconditional permanent residency.
B-1 Visa: Tourists Visa
The B-1 visa provides a short stay tourist visa for people who need to conduct business in the U.S. The visa is only valid for the duration needed to complete the business. The B-2 visa is a tourist visa for non-business purposes (vacation). The B-2 visa is available for up to one year.
Visa’s for Employment
H2A – Temporary Worker – Agricultural Work
An H2A visa is a temporary visa specifically for an agricultural worker. The requirements for an H2A visa are a little different from other temporary work visas. The employer must first have demonstrated that they attempted to hire an American worker but couldn’t find an American to accept the job. Additionally, an H2A visa is not available for any foreign worker who is already (illegally) in the U.S.
H1B- Highly Specialized Knowledge
The H1B Visa provides a visa to a person employed in an occupation which requires “highly specialized knowledge.” This is sometimes referred to as the “fashion models” visa. Generally, the applicant must show that they have knowledge in a specialized area of study, or a unique talent, like a fashion model, in order to qualify. The applicant must also show proof of a job offer in the United States. A H1B Visa provides a stay for up to (6) years. After the (6) years, the visa holder can then apply for an adjustment of status to receive a green card, with the sponsorship of their employer.
H2B – Temporary Seasonal Worker
A person may qualify for a H2B Visa when they have been offered work from a U.S. employer that involves a seasonal or non-agricultural job. A H2B visa is valid for one year.
All H-Visa applicants must provide the Petition for a Nonimmigrant Worker, Form 1-129 for $460.
An O Visa is a nonimmigrant visa awarded to individuals who have demonstrated an extraordinary talent or ability, which brought international recognition, and the person intends to work with that extraordinary ability for a temporary basis in the United States. The O visa is limited to an extremely rare percentage of people, as it requires that the person receive acclaim in their field. An example of a person who would qualify as an O visa would be a famous athlete, actor, or Nobel Prize winning researcher.
All O-Visa applicants must provide a Petition for a Nonimmigrant Worker, Form 1-129 for $460, as well as any documentation regarding their ability and status.
The EB, or employment-based visa is a type of immigrant visa. This means that the person who is staying in the U.S. on an EB will be able to apply for permanent residency in the United States. After (5) years holding a green card, a person can then apply for U.S. Citizenship.
The EB Visas are prioritized based on “preferences”. The EB Visas are ranked in order, as follows:
- EB-1 Employment Based Visa 1st Preference, available for people with job offers in the states who possess exceptional ability in the arts, sciences, sports, or education. An example of a high-priority EB-1 Visa applicant would be visiting professor, or an NBA player
- EB-2 Employment Based Vise 2nd Preference, available for professionals who have advanced degrees and/or exceptional ability.
- EB-3 Employment Visa 3rd Preference, available for all other professionals, i.e. who do not have advanced degrees or exceptional ability.
- EB-4: Employment Visa 4th Preference, available for Religious workers, who otherwise are not available to receive the R-1 Visa.
If the EB visa holder later applies for a green card, they will have to submit an 1-140, with supporting documentation, and the PERM Labor Certification.
The PERM Labor Certification is a document from your employer stating that no other U.S. based worker was able to be found to do your job (thus your employer needs you to come to U.S. to do the work.) The PERM is needed for the EB-2 and EB-3 visas
Form I-140 – known as Immigrant Petition for Alien Worker
The I-140 Form is known as the Immigrant Petition for an Alien Worker and is filed in conjunction with an employment-based green card, along with a PERM Certificate. The I-140 is filled out and submitted to the USCIS for a cost of $700. The processing time of an 1-140 varies, depending on the current caseload at your field office. An 1-140 will usually be processed within 3 months, however, some cases may take longer.
The process of an EB can usually takes 6 months to 1 year. Many people, however, need to expedite the process as they have to begin work in the U.S. sooner than that. The EB allows for Premium Process, for a cost of $1,440 which will shorten the processing window down to 15 days.
The “Investor’s” Visa – EB-5
The EB-5, is an employment-based visa exclusive to investors. The EB-5 applicant must have invested in a new company that creates jobs for at least 10 workers within the United States. The financial requirement of EB-5 is $900,000 for investments in rural or high-employment areas, and $1,800,000 in all other areas.
The L-1 Visa is available for a person who works as an executive, manager, or specialized-knowledge worker of a company that is now requiring them to transfer to the U.S. The employer must be a non- U.S. company and the person must be transferred to a branch or affiliate of that company in the United States.
The L Visa has a filing fee of $190. In addition, the I-129, Petition for a Non-Immigrant Work must be filed, at a cost of $460. There is also a Fraud Prevention and Detection Fee, for essentially a background examination, which is $500.
Although the L-1 visa is a non-immigrant visa, L-1 visa holders have the potential to later renew as an EB-1 visa holder, which then will allow them to apply for a green card through the EB. The spouse or unmarried children (under 21 years of age) of an L1 visa may apply for an L-2 visa.
Visa’s for Victims of Crime or Domestic Abuse
A person who has been a victim of a crime or domestic abuse may qualify for a U or T visa or qualify for admission under VAWA.
The U Visa is available for people who have suffered violent crimes within the United States. The person will receive a temporary U visa on the condition that they are willing to testify against the perpetrator. A U- Visa allows the person to stay in the U.S. for up to (4) years and is no cost to file.
A T visa is available to a person who has been subjected to human trafficking and will face extreme hardship if they were to go back to their home country. A T Visa costs is $930 to file.
VAWA: The Violence Against Women Act provides a way for victims of domestic violence to apply for a green card. In VAWA, a person does not need a sponsor, but can self-apply. The name is a little misleading, as you do not need to be a woman to qualify under VAWA, you can be a man or child. The qualification is that the person must have suffered domestic abuse at the hands of a spouse or parent who was a citizen or lawful permanent resident.
Treaty Visas – The E Visa
E1 – Treaty Trader Visa: Provides a non-immigrant visa for people from countries with a treaty relationship with the U.S., to stay temporarily in the country for the purpose to conduct trade.
E2 – Treaty Investor: The E-2 visa provides a temporary period, up to 2 years for a non-immigrant from a treaty country to work in the U.S. if they are running a substantial investment within the U.S.
For a list of treaty countries, one can visit https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/fees/treaty.html
NAFTA Visa- TN Visa
The TN Visa provides for a temporary stay, exclusively to North American Free Trade Agreement (NAFTA) professionals from Canada or Mexico who are coming to the U.S. to work in trade.
Visa for Religious Workers – R-1 Visa
The R-1 Visa is reserved for religious workers seeking a non-immigrant visa in order to conduct religious work in the United State. To qualify, the religious worker must be with a bone-fide religious organization that has held non-profit status in the United States for a minimum of 2 years preceding the filing of the visa.
An R Visa costs $190 to file and takes approximately 6 months processing time.
Student Visa’s – F-1 and M-1
Student visas are awarded to people who have received acceptance to study in the United States. The F-1 visa for academic studies, and the M-1 visa is available for vocational studies. In a student visa (F-1 or M-1) the application process tends to be less complicated and quicker processing time than other visas. This is to encourage educational pursuits for foreign individuals.
Still, there are several requirements for a student visa. For instance, one must be a full-time student, enrolled in a program to obtain a degree or certificate. A person on a M-1 student visa is not allowed to work during their course of study, however a person on an F-1 visa are allowed to work part-time on a campus job.
An applicant must be a “bona fide” student. That means that immigration officials are looking to see if a person is trying to use the student visa as an excuse for potential entry to the U.S. versus someone who is pursuing a “bone fide” or genuine course of study. In addition to this, a person applying for a student visa must show that they only want to be in the U.S. temporarily, with the intent to return to their home country after the completion of study. A person will be ineligible for a study visa if they are seeking to remain in the U.S. after graduation. Generally, immigration officials will look for proof that the applicant has family and a plan or job to return to once they graduate.
F-2 and M-2 Visa
A F-1 or M-1 visa will allow you to bring your spouse or children with you to the U.S., through the F-2 or M-2 visas. They are allowed to stay for the duration of the original visas, however an F-2 or M-2 visa holder cannot seek employment or education in the country.
How long does a student visa last for?
A student visa is expected to last for as long as the course of study. An F or M visa can be extended if the study is going to take longer than expected. However, any foreign student who overstays their F or M visa (i.e. continue to stay in the country after graduation or completion of their course of study) is likely to be immediately deported. Any future visa applications might be denied due to the previous overstay.
DV Visa – The Visa Lottery
The Diversity Immigrant Visa Lottery Program provides for 50,000 DV visas each year to be awarded to people from countries with low immigration rates. The purpose of the lottery is to encourage diversity. The fee for the DV lottery is $330.
A list of the countries currently available for eligibility can be found at: https://travel.state.gov/content/dam/visas/Diversity-Visa/DV-Instructions-Translations/DV-2021-Instructions-Translations/DV-2021-%20Instructions-English.pdf