(212) 625-3394
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New York, NY 10013
(212) 625-3394
377 Broadway, Suite 801
New York, NY 10013
Non–citizens temporarily visiting the United States generally require a nonimmigrant visa to enter a U.S. port–of–entry. The type of visa needed depends on the reason for the visit.
The length of time someone can stay in the U.S. depends on the visa status under which he is admitted. And a person admitted in one status can often change his status in order to stay longer or to perform different activities. For instance, a medical school student may want to change his or her status to an employer–sponsored nonimmigrant visa once he or she graduates and finds employment (assuming the new employer will sponsor him or her).
The non–immigrant visa classification covers a broad range of visas used to enter the United States for work, pleasure or study. Some visas are considered ’dual status’; you may attempt to obtain permanent residency (a green card) while under that classification. Most non–immigrant visas, however, require you establish the demonstration of non–immigrant intent. This means you should demonstrate that you have a permanent residence in your home country that you have no intention of abandoning. The duration of time you may spend in the U.S. can range from a few days to several years, depending on the visa. In most situations, your spouse and unmarried children under the age of 21 may accompany you on a derivative visa.
The immigration process can be confusing and complicated, and a successful visa application process requires careful advanced planning and strict adherence to procedural steps. Our firm will determine the proper visa category for you then guide you through the entire process, providing experienced immigration assistance and confident legal counsel.
Contact Shrestha Law Firm, PLLC today to get the process started.
Extraordinary Ability (Arts, Motion Picture, or Television)
The wide variety of educational facilities in the United States offer great opportunities for students wishing to further their education and training. The intellectual stimulation and social experiences of studying in the U.S. will be vital parts of a student’s growth and development.
Foreign national students who want to study in the U.S. usually apply for the F–1 visa. Although the J–1 and M–1 Visas (for vocational students) are sometimes used, most foreign students enter in F–1 status.
Your spouse and unmarried children under the age of 21 are allowed to join you in the U.S., under F–2 status. A prospective student’s Form I–20A–B may be used to request an F–2 visa.
If your spouse and/or dependent children are joining you later, they will need to submit Form I–20A–B, endorsed from the school you are attending. F–2 visa holders can not work while in the U.S.
You must first apply and be accepted to an USCIS approved school in the U.S.
If admitted, the school will issue you an USCIS Form I–20 A–B/ID (Certificate of Eligibility).
You must submit your visa application form, Form I–20A–B and other required documents at the U.S. Consulate, Consular Office or U.S. Embassy with jurisdiction over your permanent residence.
The M–1 visa offers a great opportunity for students to train in a positive U.S. environment and strengthen their technical and non–academic skills. The M–1 visa is offered to students who wish to pursue full–time study at an USCIS approved vocational or non–academic school in the United States.
These schools are usually community and junior colleges that offer vocational and technical training or vocational high schools. The schools must prove their international students program will reach certain educational objectives and will not be used to make students work.
Your spouse and unmarried children under the age of 21 are allowed to join you in the U.S., under M–2 status. A prospective student’s Form I–20M–N may be used to request an M–2 visa.
If your spouse and/or dependent children are joining you later, they will need to submit Form I–20M–N, endorsed from the school you are attending. M–2 visa holders can not work while in the U.S.
You must first apply and be accepted to an USCIS approved school in the U.S.
If admitted, the school will issue you an USCIS Form I–20 M–N/ID (Certificate of Eligibility).
You must submit your visa application form, Form I–20M–N and other required documents at the U.S. Consulate, Consular Office or U.S. Embassy with jurisdiction over your permanent residence.
The J–1 visa is designed to provide educational and cultural exchange programs, and to promote the sharing of individuals, knowledge and skills in education, arts and sciences. This visa enables people to participate in exchange visitor programs in the United States. Participants in this visa include students, trainees involved in on–the–job training, teachers engaged in research and teaching and international visitors interested in traveling, researching, consulting and demonstrating specific knowledge. Your spouse and/or unmarried children under the age of 21 may apply for entry under J–2 status.
You should apply for a J–1 Visa at the U.S. Embassy or Consulate with jurisdiction over your place of permanent residence. While you may apply at any U.S. consular office abroad, it is advised you apply within your jurisdiction. Participants in the J exchange program should present a Form IAP–66, prepared by a designated sponsoring organization.
The laws regarding the H–1B classification are in constant flux and applicants seriously considering this category as a means of working in the U.S. on a temporary basis should stay informed and updated as much as possible. Because an applicant’s circumstances and the circumstances of his or her dependent family members may require special attention, the following information is not tailored to any one individual but provides general information about this category.
The H–1B specialty worker category applies to foreign workers coming to the U.S. temporarily to perform services in a specialty occupation, which includes a variety of fields ranging from architecture and engineering to health and medicine. The current annual cap on H–1B admissions is 85,000 workers.
The H–1B specialty worker category applies to a foreign worker coming temporarily to perform services in a specialty occupation, which requires the theoretical and practical application of highly specialized knowledge requiring completion of a specific course of higher education. Generally, in order to qualify for H–1B classification, the applicant must have at least a U.S. bachelor’s degree or its equivalent AND the job sought must require at least a bachelor’s degree or its equivalent. Since H–1B is not self–petitioning category, the applicant must have a sponsoring employer in the U.S.
Spouse and unmarried children under 21 years of age of H–1B workers are entitled accompany to join the H–1B worker as H–4 dependents. However, dependents cannot work under H–4 classification. H–4 dependents can attend schools in the U.S. without obtaining a student visa.
[Note: For many years, USCIS has been using lottery process to select the H-1B cap-subject petitions due to higher demand of the H-1B visas than it is statutory available. However, for the fiscal year 2021, USCIS implemented the initial H-1B registration requirement for the Petitioners for H-1B Cap-subject visas. The electronic registration is done by creating an account with USCIS. Prospective employers or their representatives are required to register with USCIS from March 1, 2020 to March 20, 2020 providing the information on the prospective employer and employee or beneficiary. Multiple registrations for the same beneficiary will invalidate the registrations. For each registration, a fee of $10.00 shall be paid. If the USCIS receives enough registrations by March 20, 2020, it will randomly select registrations and send notifications via users' USCIS online accounts. The notification to the account holders shall be done by March 31, 2020. An H-1B cap-subject petition may only be filed by a petitioner whose registration for that beneficiary was selected in the H-1B registration process][H-1B cap-exempt petitions are not subject to this initial registration procedure].
Because the H–1B classification requires a U.S. sponsor, the applicant must seek a U.S. employer who is willing to hire the applicant temporarily, pay the applicant the prevailing wage for the proffered position and file the petition and supporting documents with the United States Citizenship and Immigration Services (USCIS).
The petition process begins with the sponsoring employer filing a Labor Condition Application (LCA) with the Department of Labor. Upon obtaining an approved LCA, the employer files the petition with the USCIS. The petition must be filed with documentation that shows the job is a professional or specialty occupation and that the foreign worker is qualified for the position.
The sponsoring employer must file Form I–129 and the required supplement forms with the USCIS service center having jurisdiction over the place of intended employment.
After approval, USCIS will send Form I–797 (Notice of Action) to the employer or attorney of record. If the foreign worker is outside the United States, the employer then notifies the foreign worker of the petition approval and sends all the required documents to the applicant who can then apply for his/her H–1B visa at an appropriate U.S. consulate in his/her home country.
The initial approval of an H–1B classification may be up to three years, renewable for another three years. The maximum period of stay is six years. Under certain circumstances (when the alien has already started the process for obtaining the permanent residence status in the U.S.), the H–1B worker may extend his/her status beyond the six–year limitation.
The U.S. employer must file the petition with:
The foreign national must submit evidence that he/she has the required degree by submitting either:
| $460.00 | Base filing fee: |
| $1,500.00 | Employer fee, unless exempt under Part B of the H–1B Data Collection and Filing Fee Exemption Supplement of the form I–129.A U.S. employer with a total of 25 or less full–time equivalent employees in the United States (including any affiliate or subsidiary of the employer) is only obligated to pay the $750 fee. |
| $500.00 | Fraud prevention and detection fee. Effective March 8, 2005. |
| Optional: $1,440.00 |
Premium Processing/fast track processing fee to guarantee that your case will be adjudicated by the USCIS within 15 days or the fee will be refunded. |
Australian Special Occupation Visa. E–3 Visa allows persons to enter the U.S. “solely to perform services in a specialty occupation in the United States if the alien is a national of the Commonwealth of Australia” and files a labor attestation under INA §212(t). It is limited to 10,500 per fiscal year. Although the E–3 has characteristics that are the same as H–1Bs or Fast Track H–1B1s, it is a separate visa with separate benefits and requirements. For example, E–3 spouses may work and E–3 applicants are not required to pay the special fees required of H–1Bs. A job offer in a “specialty occupation”, certified LCA and prevailing wage determination are required.
The H–2A Visa is the most functional of visa categories. It fills a specific need for the U.S. and for foreign nationals. The visa allows foreign workers entry to the U.S. to work in agriculture. Truthfully, the visa hasn’t garnered much support in the community. Growers don’t like the limits of the visa and advocates don’t believe the laws give enough support to workers. The H–2A visa is not self–petitioned. Employers must apply on behalf of their employees. The employer can be self–employed, a partnership, corporation or agricultural association. An agent may also apply on behalf of the employer. Workers’ spouses and unmarried children under the age of 21 are allowed to join them in the U.S. under the H–4 status. Dependents are not permitted to work, unless they personally qualify for a work visa.
The first step is to apply for a Temporary Labor Certification from the U.S. Department of Labor (DOL). You must meet all requirements of the DOL, and you must prove that there are no U.S. workers available for the proposed position(s). After approval of the application, you must attempt to recruit eligible U.S. individuals for the proposed positions. After the recruitment process is complete, the DOL will subtract the number of accepted U.S. workers from the requested amount of H–2A workers. If no U.S. workers were able to be recruited, you will be eligible to apply for your requested amount of visas. You will then petition for the agreed amount of H–2A Visas with USCIS . After approval of this petition, foreign workers may apply to the consulate in their home nations.
While only a few H–2B Visas are issued each year, the visa is nonetheless useful. The H–2B visa enables U.S. businesses and agents to fill temporary needs for nonimmigrant workers. Many individuals unable to obtain an O or P Visa may apply for this visa. However, medical graduates are not allowed to apply for this visa. The visa is not self–petitioned, which means you will need an employer to sponsor you. Your spouse and unmarried children under the age of 21 are allowed to join you in the U.S. under the H–4 status. Dependents are not permitted to work, unless they personally qualify for a work visa.
The first step is to apply for a Temporary Labor Certification from the U.S. Department of Labor (DOL). You must meet all requirements of the DOL, and you must prove that there are no U.S. workers available for the proposed position. The employer must then attempt to recruit eligible U.S. individuals for the proposed positions. Once this recruitment process is over, the DOL will send the employer labor certification. The employer can then petition USCIS for your H–2B Visa. After approval of this petition, you may apply at the consulate in your home nations.
The H–3 Visa is specifically designed to enable you to train in the U.S. in almost any discipline. USCIS calls this loose classification, ‘any field of endeavor’. This includes agriculture, technology, communications and governmental leadership. This loose classification does not include people seeking graduate medical training. Nurses and medical students on vacation, however, may be eligible for the H–3 Visa. Your spouse and unmarried children under the age of 21 are allowed to join you in the U.S. under the H–4 status. Family members are not permitted to work while in the U.S.
The H–3 Visa is not self–petitioned. An employer must petition on behalf of you, the trainee. The employer must provide certain evidence about the training, including a description of the training program, your compensation (if any) and reasons why you need the training. The employer must then submit a petition on Form I–129 with the regional USCIS center that has jurisdiction over the place where the training will be offered.
Businesses that function both in the United States and in their home country gain the benefits of the best of both areas. The L–1 visa is open to international organizations with offices in the U.S., and who transfer employees to the U.S. office for temporary periods of time. This visa is sometimes referred to as the “intra–company transferee” visa. To obtain an L–1 visa, you must be able to prove that you have worked for the non–U.S. company for at least one full year within the last three years as an executive, manager or employee with specialized knowledge. The L–1 visa enables the transfer of managers, executives and specialized knowledge personnel to a U.S. office, subsidiary or affiliated company. This visa comes in the following categories: 1. L–1A visas – for executives and managers 2. L–1B visas – for personnel with specialized knowledge. Your spouse and unmarried children under the age of 21 are allowed to join you in the U.S., under L–2 status. They are not allowed to work, but can attend school or college. Servants may be eligible for a B–1 visa with work authorization.
The employer must file a petition with the USCIS Regional Service Center with jurisdiction over the location of the position. These documents should be photocopies of the originals. Upon approval, the USCIS will forward the petition to the U.S. Consulate nearest your place of residence for review. If you are in the United States when the petition is filed, you can request for a change of status from the status you had initially entered. If you are not in the U.S. when your petition is approved, you must get your visa stamped at the U.S. consulate before being allowed to enter the U.S. Your employer will receive Form I–797. After receipt of the I–797, you must then file–in Form DS–156 at the Consulate. If your petition is not approved due to missing documents, USCIS will request further documentation. You will have generally 12 weeks to respond. But it is up to USCIS how much time it should afford you to respond. If approved, your visa will be valid for 1 or more. It is the USCIS that determines the validity period of time of the L visa depending on the nature and the size of the business. Blanket Petition: A blanket petition eases the process of getting the L–1 visa. If a company has been defined as a blanket petition entity by USCIS, the company can directly authorize L–1 visas to eligible employees.
To apply for an L–1 Visa, you must supply the following documents:
Your petition should show that both the U.S. and foreign–based company meet USCIS requirements for L–1 status. The U.S. entity should be a branch office, subsidiary or affiliate of the foreign enterprise, and both companies should be actively engaged in business. The following documents may also be required:
You, the employee, should provide the following documents:
If you are coming to the U.S. to start a new office, you should also provide the following documents:
The E–1 classification is authorized for a national of a country with which the United States has a commercial treaty, who is coming to the U.S. solely to engage in trade of a substantial nature principally between the United States and the alien’s country of nationality. The trade involved must be international exchange (successfully negotiated contracts binding on all parties) of items of trade between the U.S. and a treaty country. Title to the trade item must pass from one treaty party to the other.
If the alien is inside the U.S., the I–129 is used to apply for a change of status, extension of stay, or change of employment. This classification does not require a petition for employment if the alien is outside of the U.S. If outside of the U.S., the alien applies for an E–1 visa on his or her own behalf directly to a U.S. consular office abroad.
The application must be filed with the appropriate fee payment, and evidence that:
The E–2 classification is authorized for a national of a country with which the United States has a commercial treaty, who is coming to the United States solely to direct and develop the operations of an enterprise in which he or she has invested, or is actively involved in the process of investing, a substantial amount of capital.
If the alien is inside the U.S., the I–129 should be used to apply for a change of status, extension of stay, or change of employment. This category does not require a petition for employment if the alien is outside of the U.S. In that case, the alien applies for this category on his or her own behalf directly to a U.S. consular office abroad.
The investment involved must place lawfully acquired, owned, and controlled capital at commercial risk with a profit objective, and be subject to loss if the investment fails.
The application must be filed with the appropriate fee payment, and evidence that:
The O–1 category also applies to aliens who are coming temporarily and have extraordinary ability in the arts or extraordinary achievement in the motion picture or television industry.
A U.S. employer should file the I–129 petition with:
If the above standards do not readily apply to the alien’s occupation, the petitioner may submit comparable evidence in order to establish the alien’s eligibility.
The O–2 category applies to aliens accompanying an O–1 artist or athlete to assist in a specific event or performance. This person would be acting as an essential and integral part of the artistic or athletic performance of an O–1 artist or athlete because he or she performs support services which cannot be readily performed by a U.S. worker and which are essential to the successful performance of the O–1.
The petition must be filed by a U.S. employer in conjunction with the filing of the O–1 alien petition and must be filed with:
Spouses and minor children (dependents) of O–1’s are admitted under O–3 status with the same restrictions as the principal. They may not work in the U.S. under this classification.
Artists and athletes are an essential portion of healthy cultural exchange. The global community benefits greatly from the work of each country’s greatest thinkers and performers. P–1 visas are issued to entertainers, circus artists, and athletes who wish to work in the U.S. Outstanding athletes may apply for this visa in order to compete in the U.S., either as individuals or as members of an internationally recognized athletic team. Entertainment groups with an outstanding international reputation can be granted P–1 classification as a unit; however individual entertainers within these groups cannot apply for separate visas. Your spouse and unmarried children under the age of 21 are permitted to accompany you to the United States, under a P–4 status. P–4 visa holders are not allowed to work, but may attend schools or colleges. Servants of a P–1 visa holder may receive a B–1 visa with work authorization.
Your employer must forward all necessary documents along with Form I–129 to the USCIS branch with jurisdiction over the area where you plan to perform. A U.S. agent may also file a petition for workers who are self–employed, use agents to book short–term engagements with many different employers or in situations where foreign employer(s) authorize the use of an agent to act on their behalf. This agent may be the employer of the performer, a representative of the employer or a person authorized to act on behalf of the employer.
Artists and athletes are an essential portion of healthy cultural exchange. The global community benefits greatly from the work of each country’s greatest thinkers and performers. P–2 Visas are issued to troupes or bands entering the U.S. as a part of an exchange program. There should be two organizations involved in this exchange program: one in the U.S. and one abroad. Your spouse and unmarried children under the age of 21 are permitted to accompany you to the United States, under a P–4 status. P–4 visa holders are not allowed to work without being granted permission.
Either the U.S. labor group that negotiated the exchange agreement, the sponsoring organization or the U.S. employer must file the petition. The petition should be filed to the U.S. Consular office or U.S. Embassy, or to the branch of the USCIS with jurisdiction over the location where the troupe/band plans to perform. The application forms and relevant documents may be mailed or submitted in person. A U.S. agent may also file a petition for workers who are self–employed, use agents to book short–term engagements with many different employers or in situations where foreign employer(s) authorize the use of an agent to act on their behalf. This agent may be the employer of the performer, a representative of the employer or a person authorized to act on behalf of the employer.
Education is paramount to the exchange of ideas and beliefs between nations. The P–3 visa offers art teachers the ability to share their skills and talents with individuals in the U.S. Under P–3 status, teachers can enter the U.S. and train others in their particular discipline. Your spouse and unmarried children under the age of 21 are permitted to accompany you to the United States, under a P–4 status. P–4 visa holders are not allowed to work, but may attend schools or colleges.
Your sponsor must forward all necessary documents along with Form I–129 to the USCIS branch with jurisdiction over the area where you plan to perform. A U.S. agent may file a petition for workers who are self–employed, use agents to book short–term engagements with many different employers or in situations where foreign employer(s) authorize the use of an agent to act on their behalf. This agent may be the employer of the performer, a representative of the employer or a person authorized to act on behalf of the employer.
The R–1 Visa enables religious workers to temporarily enter the United States. A religious vocation is defined as a calling to religious life, shown by a demonstration of a lifelong commitment; for instance, taking vows. Nuns, monks, and religious brothers and sisters are examples of religious workers. A religious occupation is defined as a continual engagement in an activity related to a traditional religious function. This definition includes liturgical workers, religious instructors or cantors, catechists, workers in religious hospitals, missionaries, religious translators and religious broadcasters. However, it doesn’t include janitors, maintenance workers, clerks, fund raisers or solicitors of donations. Your spouse and/or unmarried children under 21 years of age may be granted derivative status to enter the U.S. They are not authorized to work while in the U.S., but may attend school.
Under the North American Free Trade Agreement (NAFTA), certain citizens of Canada and Mexico are eligible to enter the U.S. under the nonimmigrant TN status. The TN Visa enables Canadian and Mexican citizens to temporarily work in U.S. in a NAFTA–approved professional occupation. The following are the requirements to be eligible for the TN Visa:
Canadian Citizens may apply for the TN–1 Visa, and Mexican citizens may apply for the TN–2 Visa. Please not that the process to obtain a TN–2 Visa is much more complicated than that of the TN–1. Spouses and/or unmarried children under the age of 21 are eligible to enter the U.S. under the derivative TD–1 and TD–2 visas. Family members are not required to be Canadian or Mexican citizens, and are eligible to remain in the U.S. for the duration of the TN Visa holder’s stay. They may either accompany the TN Visa holder to the U.S. or come at a later time.
Canadian citizens applying for the TN–1 Visa must provide the following information at a U.S. port of entry:
Canadian citizens need not obtain Labor Certification. They must simply obtain TN status at a port of entry, after sufficiently proving that the proposed stay is of a temporary nature.
Mexican citizens are eligible to apply for the TN–2 Visa. Interested applicants must meet the following requirements:
The Q–1 international cultural exchange program provides practical training, employment and the sharing of the history, culture, and traditions of the participant’s home country in the United States. This visa enables individuals to participate in exchange visitor programs in the United States.
You should apply for a Q–1 Visa at the U.S. Embassy or Consulate with jurisdiction over your place of permanent residence. While you may apply at any U.S. consular office abroad, it is advised you apply within your jurisdiction. Participants in the Q exchange program must have the designated sponsoring organization file Form I–129, Petition for Nonimmigrant Worker, with the USCIS The USCIS will then inform the sponsor on Form I–797 when the petition is approved.
The purpose of the U visa is to give victims of certain crimes temporary legal status and work eligibility in the United States for up to 4 years. The U visa is a nonimmigrant visa and only 10,000 U visas may be issued every fiscal year. Family members may also be included on the petition including spouses, children, unmarried sisters and brothers under 18, mothers, fathers, as well as stepparents and adoptive parents. An approved U visa petition will automatically grant the applicant work eligibility in the United States. An Employment Authorization Document will be included with all approved petitions, which can be shown to any employer to obtain a Social Security Number to start work legally. Currently all U visa applications are filed at the Vermont Service Center.
U Visa Application: An application for the U visa is filed with Form I-918, and there are different requirements that must be satisfied before an application can be submitted. The applicant must have suffered substantial physical or mental abuse due to a criminal activity in at least one of the following categories: rape, torture, trafficking, incest, domestic violence, sexual assault, abusive sexual contact, prostitution, sexual exploitation, female genital mutilation, hostage situations, peonage, false imprisonment, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, blackmail, extortion, manslaughter, murder, felonious assault, witness tampering, obstruction of justice, perjury or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes.
All petitions must include information on how the victim can assist government officials in learning more about the crime including investigation and/or prosecution of the individual(s) that committed the crime. The victim must also be willing to work with local law enforcement. The crime must have occurred in the United States or in a U.S. territory, or violated U.S. law.
A portion of Form I-918 must be certified by a Federal, State or local law enforcement agency, such as a prosecutor or a Federal or State judge in charge of the investigation in which the petitioner is the victim. Without this certification, the U visa petition cannot be submitted. However, a certification alone is not enough to establish eligibility as all facts around the petition will be considered. The certifying individual must be the head of the agency or a person designated to issue U nonimmigrant certifications. If at any point the victim stops to cooperate with law enforcement, the certification can be withdrawn. The certification must not be older than six months at the time the petition is filed with USCIS.
In addition to the certification, the victim must establish that he suffered substantial physical or mental abuse as a result of having been a victim of qualifying criminal activity. In considering whether the abuse or harm is substantial, even if a single act does not rise to that level of harm, series of factors including the nature, length and the severity of such harm or abuse can be considered in aggregate.
The immediate relatives (spouses and underage children) can also obtain derivative U visas based on the principal's U nonimmigrant. In relation to a victim who is under 21 years of age, spouses, unmarried siblings (under 18) and parents can also obtain a derivative U visas.
The qualifying criminal activity must be occurred in the United States or in its territories. There are 10,000 U visas per year available.
Shrestha Law Firm, PLLC,
(212) 625-3394,
fax: (212) 431-4460,
info@shresthalaw.com
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