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IMMIGRATION: BASIC NONIMMIGRANT
VISA OVERVIEW
This is an overview of the U.S. Business Immigration
System . . . .
See the individual pages by
clicking the Links below for a more
detailed review of the topics in which you are interested.
For your convenience,
all words in underlined blue are links to relavant articles.
For Family Immigration issues, Click Here:
Family Immigration __________________________________________________________________
Nonimmigrant (Temporary) Work Authorized U.S.
Visas:
"Nonimmigrants" are persons who may be admitted into the U.S.
for temporary periods. Upon arrival in the U.S., nonimmigrants (other
than Canadian visitors for business or pleasure) usually receive
white or green cards (referred to as "I-94" forms) which are stapled
into their passports (no Canadians are required to present passports
when entering the U.S.) By U.S. Immigration Inspectors. The I-94
form shows a date by which the person is required to depart the
United States. Failure to depart can have serious immigration consequences
in the future..
Nonimmigrants from certain countries are not required to have
U.S. visas when entering the U.S. as visitors for business or pleasure.
Such persons, who must nonetheless still present unexpired passports,
are called "visa waivers" shown below as "W.B." and "W.T."
Persons who overstay the term of their admission into the United
States may be subject to the Bar to Admissibility, discussed below.
_______________________________________________________________________________
List of U.S. Nonimmigrant Visa Categories:
( In addition, there are
special designations for spouses and children under age twenty-one.)
"A-1" - Diplomatic Personnel
"B-1" - Temporary Visitors for Business
"B-2" - Temporary Visitors for Pleasure (Tourists)
"C-1" - Persons in transit through the U.S.
"D-1" - Aircraft/Ship Crewmembers
"E-1" - Treaty Traders - persons involved in trade from
certain specified countries
"E-2" - Treaty Investors - persons who invest in a business
in the USA
"E-3" - Australians with university degree
"F-1" - Academic Students "L-1A" Intracompany
Transferees (Executives and Managers)
"H-1B" - Workers in Specialty Occupations - normally requires
a university degree
"H-2A" - Temporary Agricultural Workers
"H-2B" - Temporary Workers Performing Temporary Services
(i.e., seasonal workers; au pairs)
"H-3" - Trainees with companies that have an established
training program
"I" - Media Representatives
"J-1" - Exchange Visitors
"K-1" - Fiancé(e) of a U.S. Citizen
"G-1" - International Organization Representatives
"L-1B" - Intracompany Transferees (Persons of Specialized
Knowledge)
"M-1" - Vocational Students
"NATO" - NATO Military Personnel
"O-1" - Extraordinary ability in sciences, art, education,
business, athletics, movies/T.V.
"P-1" - Artists/Entertainers
"Q-1" - International Cultural Exchange Persons
"R-1" - Religious Workers
"TN."- NAFTA (Canadian/Mexican Qualifying Personnel)
"WB" - Waiver - Business (Waiver of B-1 visa for citizens
of qualifying countries)
"WT" - Waiver - Tourist (Waiver of B-2 visa for citizens
of qualifying countries) _______________________________________________________________________________
Foreign nationals working for a foreign entity
are allowed to visit the United States on a "B-1" business
visitor visa, or a "B-1" Visa Waiver if they are a citizen
of a Visa Waiver country.
Eligibility Requirements:
Foreign nationals interested in visiting the United
States for exploratory business purposes that do not involve receiving
salary or payment in cash, are eligible to apply for a "B-1"
business visitor visa.
Many people believe that they can enter the United
States as a "B-1", start or participate in a business,
make frequent trips out of the USA and then return after a brief
absence. This procedure can lead to the person being excluded from
the United States. Immigration officers will see the frequency of
travel, and may advise the person that they need another type of
visa, or they may just refuse to admit a person who seems to spend
more time inside the USA than outside. This is a common mistake
unwary business people make and if excluded, or removed from the
United States, may not be able to return for five years or longer.
"B-1" business travel can have unexpected
consequences. Competent immigration counsel should be consulted
before a problem arises. Once an immigration officer decides to
exclude or remove, it is often too late to ask for legal counsel.
Visitor visas are issued as "B-1/B-2",
as indicated on the visa stamp in the passport. It is upon entry
into the United States that the person tells the Immigration Officer
the purpose of their trip, business or pleasure, and is then given
permission to enter as either a "B-1" Business Visitor,
or "B-2" Tourist, as will be indicated on the Form I-94
entry document.
Foreign nationals working for a foreign entity
are allowed to visit the United States on a "B-2" business
visitor visa, or a "B-2" Visa Waiver if they are a citizen
of a Visa Waiver country.
Eligibility Requirements:
Foreign nationals interested in visiting the United
States for leisure or tourism, may apply for a "B-2" tourist
visa. Persons admitted to the United States under a "B-2"
tourist visa are not allowed to work or receive any kind of payment
while being in the United States.
Visitor visas are issued as "B-1/B-2",
as indicated on the visa stamp in the passport. It is upon entry
into the United States that the person tells the Immigration Officer
the purpose of their trip, business or pleasure, and is then given
permission to enter as either a "B-1" Business Visitor,
or "B-2" Tourist, as will be indicated on the Form I-94
entry/departure document.
"B-1/B-2" Visa Extension Information:
Foreign nationals visiting the United States on
a "B-1" Business Visitor Visa, or on a "B-2"
Tourist Visitor Visa are issued an I-94 Form by an Immigration Officer
upon entry into the United States. The I-94
Form is a small white card which shows your arrival date and location
of entry into the United States. It also shows the date by which
you must depart the United States. The dates on the I-94 form control
the authorized stay in the United States, not the dates on the visa
itself.
Travelers on "B-1" and "B-2"
visas are usually allowed to stay in the United States for a period
of up to six months, with the possibility of extension for up to
six additional months upon approval of the extension application
by the USCIS.
"B-1/B-2" Extension Eligibility Requirements:
No extension or change of status is allowed for
"W.B." or "W.T." Visa Wavier entries, but for
persons who have entered the United States on an actual "B-1"
or "B-2" visa is eligible to apply for an
extension of their"B" status, but there are no guarantees
the application will be approved.
The USCIS examines factors that show the need of
the applicant to remain in the United States for a period longer
than that for which he or she was originally admitted (usually six
months), and evidence showing the applicant's intention of departing
the United States at the end of the proposed extension period.
The applicant must submit the extension of stay
application before the current authorized stay expires. The applicant
is also be required to provide proper evidence of financial support.
"B" visa extensions are often denied.
Competent legal counsel should be consulted for assistance in filing
an extension of "B"visitor status.
The extension form looks easy to complete, but
there are substantial pitfalls that may make the application not
approvable, unless appropriate documentation and explanation is
presented.
The "E" visa category is for International
Traders or Investors who have the nationality of a country that
has a treaty of trade and commerce with the United States.
The E-1 Treaty Trader
visa requires substantial trade between the treaty country and the
United States.
The E-2 Treaty Investor
visa requires a substantial investment in a business enterprise
in the United States that is not a marginal business designed solely
for the support of the alien and his/her family.
"E" visas can be very complex and have
definite rules that must be followed. Competent legal counsel should
be consulted before applying.
The regulations implementing the "E-3"
visa were published in the U.S. Federal Register on September 2,
2005. With the publication of the Regulations, Australians are now
able to apply
for "E-3" visas in order to live
and work in the United States. These visas have nothing to do with
the E-1 or E-2 visa categories, except the similarity of "E"
designation. In reality, E-3 visas are akin to the H-1B visa category,
and exempt Australians from the annual H-1B numerical "cap".
10,500 "E-3" visas per annum have been
reserved exclusively for Australian nationals -- by comparison in
2004 only 900 Australians succeeded in gaining an H-1B business
visas.
The "E-3" visa will help Australian business
people and professionals capitalize on the opportunities offered
under the Australia-United States Free Trade Agreement (AUSFTA).
Qualified Australians wishing to reside and work in the United States
now find themselves in a privileged position. They have access to
a dedicated visa that is easier and less costly to obtain than the
traditional H-1B business visa.
"E-3" visas can be very complex and have
definite rules that must be followed. Competent legal counsel should
be consulted before applying.
The United States welcomes foreign students to
American language schools, high schools, universities and other
academic institutions of higher education. Under certain limited
circumstances, students on an "F-1" visa may accept employment
in the U.S., And after graduation may obtain employment authorization
for up to one year, as a part of their practical training.
"M-1" visas are issued to students attending
a vocational course of study, such as flight training, technical
occupations, etc., and the rules are mostly the same.
Student Eligibility Requirements:
An applicant for a student visa must come to the
United States to pursue a program in an academic institution recognized
by the United States government. The alien must have a valid educational
purpose for coming to the United States and be a full-time student.
The student can stay in the United States for as long as he/she
is enrolled in school.
The I-94 Form, a small white card which shows your
arrival date and location of entry into the United States. It also
shows the date by which you must depart the United States. The dates
on the I-94 form control the authorized stay in the United States,
not the dates on the visa itself.
Because for the most part, student visas are handled
by the school officials who know little or nothing about U.S. immigration,
many students tend to ignore the strict rules that apply to student
visas, fail to plan what they will do after they graduate, and miscalculate
the time periods of Optional Practical Training and possible Change
of Status to "H-1B" if they intend to remain in the United
States and work after graduation. This can lead to bitter disappointment.
Student visas can be very complex and have definite
rules that must be followed. Competent legal counsel should be consulted
before applying and before graduation and application for Optional
Practical Training.
The United States government issues "J-1"
visas to individuals who take part in a wide range of a exchange
visitor programs sponsored by schools, businesses, and a variety
of organizations and institutions. These programs are envisioned
for business and industrial trainees, scholars, students, international
visitors, certain teachers, research assistants, and persons on
cultural missions. In addition, there are several exchange visitor
programs for young people, including summer employment programs,
internship programs for university students, and au-pair programs
for domestic child care workers.
"J-1" Eligibility Requirements:
You meet the criteria for a "J-1" exchange
visitor visa if you are coming to the United States as a student,
scholar, trainee, teacher, professor, research assistant, medical
graduate or international visitor who is participating in a program
of studies, training research or cultural enrichment specifically
designed for such individuals by the United States Department of
State, through its Bureau of Educational an Cultural Affairs, in
an approved "J-1" program.
"J-1" visas can be very complex and have
definite rules that must be followed. Competent legal counsel should
be consulted before applying.
"K-1" Visas are visas for foreign fiancé(e)s
also commonly called a Fiancé Visa. K-1 visas are issued at a U.S.
Consulate abroad to Aliens who are engaged to marry a U.S. citizen,
and who have the intent of being married within 90-days after arrival
of the Alien in the United States.
After the marriage, the U.S. Citizen spouse must
file a petition with the USCIS. After the petition is approved,
the fiancé(e) can obtain a "K-1" fiancé visa issued
at a U.S. Embassy or consulate abroad. The marriage must take place
within 90 days of the fiancé(e) entering the United States.
If the marriage to the U.S. Citizen does not occur
within that 90-day period after entry into the United States, as
shown on the I-94 Form, the Alien goes out
of status and cannot change to another immigration status within
the United States, and cannot adjust status to permanent residence
through a subsequent marriage, either to the original fiancé
or to another U.S. Citizen - the Alien MUST return to their home
country and apply for any applicable immigration benefits at the
U.S. Consulate of they do not marry the original "K-1"
sponsor. That's the law, and THERE ARE NO WAIVERS.
Fiancé(e) visas can be very complex and have definite
rules that must be followed. After entry into the United States
and marriage to a U.S. Citizen, the applicant must then apply for
Permanent Residence in the United States by completing the process.
Competent legal counsel should be consulted before applying for
a finance visa.
"H-1B" Work Visas are for university educated individuals
who will be working in a "Specialty Occupation" that
normally requires a university degree or its equivalent.
General Information:
The "H-1B" visa enables professionals
in "specialty occupations". A maximum of 65,000
"H-1"B visas are issued every year to persons with Bachelor's
Degrees, and an additional 20,000 to persons with a U.S. Master
Degree or higher. These numerical limitations are commonly referred
to as the "H-1B Cap" - After the
"H-1B Cap" is filled for a particular government fiscal
year, no H-1B visas can be issued until the beginning of the next
fiscal year, which begins October 1st of each year. Filings for
H-1B visas begin April 1st of each year and continue until the cap
is reached, which historically is about August. Successful applicants
can then begin work as of October 1st.
"H-1B" petitions are submitted by employers
based on their need for the non-US resident employee. There is no
need to show that no US workers are available, but the employer
must agree to, and pay, the prevailing wage, as determined by the
U.S. Department of Labor, in the geographic area of employment.
The "H-1B" visa is issued for up to three
years but may be extended to a maximum of six years. The "H-1B"
visa holder can apply for a Green Card if a company wants to file
an Application for Labor
Certification and proceed with the "Green Card" process.
The "H-1B" nonimmigrant visa may be issued
to applicants seeking temporary entry in a "specialty occupation"
which is defined as an occupation where entry level requirement
is normally a bachelor's degree or higher. The job must require
special professional skills associated to the attainment of a university
degree.
"Specialty Occupations" include, but are not limited
to such occupations as accountants, architects, computer analysts,
programmers, database administrators, web designers, engineers,
financial analysts, techincal writers, marketing analysts, some
medical positions, some but not all nurses, scientists, etc.
The key to determining what is, and is not, a "specialty
occupation" is whether or not the job position normally requires
a Bachelor Degree or higher as the minium entry level requirement.
This can be determined through research of official publications,
upon which the immigration service relies for their guidance.
Foreign degrees require a determination by a qualified
Credentials Evaluator that the foreign degree is the equivalent
to a U.S. Bachelor Degree or higher.
While there is no need to show that U. S. workers
are unavailable to fill the position, the employer must agree to,
and actually pay the foreign worker not less than the prevailing
wage. The prevailing wage is determined by the U.S. Department of
Labor for the particular job position offered, in the particular
geographic area of employment. The employer is required to sign
a Labor Condition Application attesting that they will pay the foreign
worker as promised. There can be severe penalties if the employer
fails to comply with its terms.
In additon, the employer is required by law to
fully document the employment offer, including the Labor Condition
Application and other required documents, and to keep this information
accessible in both public and private files at the place of employment
or at the company's corporate headquarters. Failure to adhere to
these regulations can result in penalties to the employer.
"H-1B" Employers should make certain
they comply with these regulations and insure that their immigration
lawyer provides them the necessary documentation after approval
of the "H-1B" Petition.
In some instances, a person without a Bachelor
Degree can qualify for an "H-1B" visa, by showing they
have a combination of education and employment history in the specialty
occupation that are the equivalent to a Bachelor Degree. Keep in
mind, however, that the job position must be a specialty occupation.
These can be very difficult cases.
"H-1B" visas can be very complex, and
have definite rules, requirements, and restrictions that must be
followed in order to protect the employer, and assist the alien
in visa issuance. Competent legal counsel should be consulted before
applying.
The "H-2" work authorized visa was created
to allow people to come to the United States temporarily, in occupations
where U.S. workers are in short supply. "H-2B" visas are
designed for skilled and unskilled workers who are fulfilling a
job that is temporary in nature, like a ski lift operator, a gardener
in a cold climate, seasonal resort staff, etc., and "H-2A"
for seasonal agricultural workers. A maximum
of 66,000 "H-2B" visas may be issued every year.
"H-2" Eligibility Requirements:
A person qualifies for an "H-2" visa
if theyare coming to the United States to accept a temporary or
seasonal job from a U.S. employer. It is the need for the job to
be filled that must be temporary, not merely the employer's or the
alien's intention to remain in the United States for a temporary
period.
Note that "H-2" visas, which are for
temporary seasonal employment, and are not to be confused with "H-1B"
visas, which are intended primarily for college-educated workers,
either on a full-time or part-time temporary basis.
"H-2" visas can be very complex and have
definite qualifying factors, filing time restrictions and rules
that must be followed. Competent legal counsel should be consulted
before applying.
Foreign nationals who have been employed outside
the United States for at least one year out of the previous three
years by a parent, branch, subsidiary, or affiliated company of
a US company can apply for an "L-1" Intracompany Transferee
Visa and transfer to the United States for employment by that company.
There are two categories of "L-1" visa:
one for Multinational Executives and Managers ("L-1A",
and another for persons with "Specialized Knowledge" about
the company's business techniques and methodologies ("L-1B").
Spouses of "L" visa holders can obtain
employment authorization by application after arriving in the Uninted
States.
Some "L-1A" Visa holders may be eligible
to apply for permanent residence without going through the Labor
Certification process, and may be in a more advantageous category
under the Visa Quota System.
"L-1" visas can be very complex and have
definite rules that must be followed. Competent legal counsel should
be consulted before applying.
The "O-1" visa is a temporary work visa
available to foreign nationals who have “extraordinary ability in
the sciences, arts, education, business or athletics.”
The extraordinary ability must have been demonstrated
by “sustained national or international acclaim.” The
"O-1" visa is also available to those in motion pictures
and television who can demonstrate a record of “extraordinary achievement.”
The requirement has been interpreted broadly
to include most creative fields, including photographers, chefs,
carpenters and lecturers.
Staff of an "O-1" can receive an "O-2"
visa upon the showing of proper documentation.
"O-1" visas can be very complex and have
definite rules that must be followed. Competent legal counsel should
be consulted before applying.
"P-1" visas are for athletes who have
gained national or international recognition and who are truly distinguished
in their field of endeavor.
"P-1" visas can be very complex and have
definite rules that must be followed. Competent legal counsel should
be consulted before applying.
"TN" Visas are temporary work visas available
only to citizens of Mexico and Canada. Under the North American
Free Trade Agreement (NAFTA), a citizen of a NAFTA country may work
in a professional occupation in another NAFTA country, as long as
the applicant meet certain requirements. The spouse and unmarried,
minor children of the principal applicant are entitled to the derivative
status (called TD visa), but they are unable to accept employment
in the United States.
"TN" Visa Eligibility Requirements:
Trade NAFTA "TN" Visas are only available
to citizens of Mexico and Canada, in certain enumerated professions.
The applicant must documentarily show their
qualifications, and must show that they are going to work for a
U.S. Employer There is no self employment allowed on a "TN"
Visa, however, there is no prohibition against the TN employee owning
the U.S. company that employs him/her.
"TN" visas can be very complex and have
definite rules that must be followed. Competent legal counsel should
be consulted before applying.
____________________________________________________________________________________
Employment Based Visa System
This visa category has five preference
categories. The requirements for each
work visa category are, in general, as follows:
Priority Workers: Extraordinary
ability in the arts, sciences, business or athletics: The prospective
immigrant must show sustained national or international acclaim,
recognition of his or her achievements through extensive documentation;
that he or she is entering the United States to work in that
area of ability, and that this entry will "substantially benefit
prospectively" the United States.
Outstanding professors or researchers: The immigrant must have
international recognition as outstanding in a specific field,
at least three years' experience in teaching or research in
that field, and be entering for a "tenured" or "tenure track"
teaching position or comparable research position. The alien's
presence must substantially benefit the United States, and "exceptional
ability" requires more than a mere degree or license. A job
offer is normally required. However, this requirement may be
waived by the Attorney General, through its designated representative,
the Immigration & Naturalization Service.
Multinational executives and managers:
The immigrant must have been employed
outside the United States for at least one year as a manager
or executive during the three years preceding the petition for
his or her entry as a non-immigrant, and the prospective employer
in the United States must be the branch, affiliate or subsidiary
of the same company who employed the alien abroad; and the prospective
United States employer has been doing business for at least
one year. A Labor Certification Application, explained below,
is not required for the above three subcategories.
Second preference (Labor
Certification Required):
Professional holding advanced degrees and aliens of exceptional
ability This category is for members of the profession holding advanced
degrees or their equivalent, or who, because of their exceptional
ability in the sciences, arts or business will substantially benefit
prospectively the national economy, cultural, or educational interests
or welfare of the United States and whose services are sought by
an employer in the United States. A bachelor's degree plus five
years professional experience in the profession constitutes the
equivalent of an advanced degree.
Skilled workers, professionals holding
basic degrees, and "other" workers: Skilled workers must have two
years training or experience, and the job may not be temporary or
seasonal. A professional must hold a United States or equivalent
baccalaureate degree and be a member of one of the professions.
The job offered must require a baccalaureate degree for entry into
the particular occupation. "Other workers" include non-temporary
or seasonal unskilled laborers.
Fourth preference (Repealed):
Special immigrant religious workers:
The worker must be a member of the religious
denomination for two prior years; the religious denomination must
be a nonprofit, tax exempt religious organization recognized in
the United States, and the alien must be coming to the United States
to carry on work as a minister, professional or other worker. This
category was created in the Immigrant Act of 1990, and contained
a provision which caused the program to end on September 30, 1997.
As of the date of writing of this article, there had been no formal
extension of this program by the United States Congress.
Fifth preference:
(i) The investor must normally
invest $1 million in a new United States business and create
jobs for ten United States workers. If, in fact, the investor
is investing in a high unemployment area of the United States,
called a "target area", or a rural area of the United States
with a population of below 20,000, the required investment amount
is cut to $500,000. A list of target areas are provided by relevant
state authorities.
(ii) For the investor who wishes
to bail out a troubled business, the investor must invest the
required sum and simply maintain the status quo of the employees.
(It is not clear at this time whether the number of employees
must be a minimum of ten.)
(iii) For the investor who is
infusing capital into an ongoing business, which is not in trouble,
the investor must increase its net worth by 40% or increase
its number of employees by 40% over a two-year period. The investor
must show that his or her investment funds were lawfully obtained.
The employment creation visa yields a conditional or probationary
stay of two years for the investor and his or her family, at
the end of which he or she must prove that he or she met the
requirements of his or her particular route to this green card,
as referenced in the initial business plan.
__________________________________________
By
definition, naturalization is the process by which a person, formerly
not a citizen of a country, becomes a citizen of a country.
Generally speaking, an alien must
have been lawfully admitted to the United States for permanent residence,
and must have resided as a lawful permanent resident in the United
States for at least five years to be eligible to apply for United
States citizenship. An exception is in the case of the spouse of
a United States citizen, who may be eligible to apply for citizenship
after three years as a permanent resident, or certain persons derivatively
eligible through parents.
An applicant for U.S. citizenship must be at least
18 years of age, except that children under 18 years may be naturalized
through a parent's naturalization, or if already naturalized the
parents may file a separate application on behalf of the child.
An applicant for U.S. Citizenship must have resided continuously
in the United States as a permanent resident for a period of at
least five years (or three years) during the five years immediately
preceding the date of filing his application, and must have been
physically present in the United States for periods totaling at
least half that time (30 months, or 18 months for spouses of U.S.
Citizens). Other complex residence requirements may apply, depending
on the situation.
While seemingly simple in application, issues relating
to Naturalization can be complex. It is advised that competent legal
counsel be consulted before proceeding with an Application for Naturalization
to insure that not only the Naturalization process is not jeopardized,
but the permanent residence status as well.
Every year the United States government is authorized
to issue 50,000 "Green Cards"
(Permanent Residence Visas") through the Diversity Immigrant
Visa Program, also known as the "DV-Lottery", or "Green
Card Lottery".
Applicants are chosen randomly by a computer-generated
drawing. It is very important that the application is properly completed
and submitted. Registration for the Green
Card Lottery is normally held in the late autumn of each year and
results are posted in the spring of the next year.
Applicants must be have been born in certain qualifying
countries and although there is no age restriction on applicants,
they must have a high school education, or employment which normally
requires two year experience.
While the application process looks easy on the
Internet, there are issues that can make the registration application
void, even after the Alien is notified that they have "won"
the Lottery.
Lottery registration can have hidden
pitfalls that my prevent a successful applicant from achieving their
immigration goal of permanent residence in the United States.
Competent legal counsel should be
consulted before applying for registration in the "Green Card
Lottery".
_______________________________________________________________________________
THE BAR TO ADMISSIBILITY
FOR PERSONS WHO HAVE OVERSTAYED
OR WHO HAVE WORKED WITHOUT
EMPLOYMENT AUTHORIZATION
Beware, people who have overstayed their authorized
stay in the United States, or who have worked without employment
authorization - - With the exception of Spouses and Step Children
and Parents of U.S. Citizens, a BAR TO ADMISSIBILITY applies, preventing
an overstaying person from being admitted to the United States as
a Nonimmigrant, or becoming a U.S. Permanent Resident until they
have left the USA for a specified period of time, either three or
ten years.
"BAR TO ADMISSIBILITY"
INTO THE UNITED STATES FOR ANY PURPOSE
(Note: Any person who applies for permanent residence
or for a nonimmigrant visa,
even though they are physically present in the United States, is
"applying for admission".)
Section 212(a)(9)(B) of the Immigration & Nationality Act, effective
April 1, 1997, created two "Bars" to admissibility for aliens who
were "unlawfully present" in the United States, i.e., overstayed
a period of authorized admission by a period specified in the law,
accepted unauthorized employment, or entered without inspection
[inspection means inspection by an immigration officer.
"Bar", in this instance, means "prohibition"
and "Admissibility" means entry into the United States
for any purpose, either nonimmigrant, or as an immigrant permanent
resident. Since (with the exception of INA 245(c) exempt persons)
persons who are out of visa status, and persons who entered uninspected
(illegally) can neither change status or adjust status to permanent
residence within the United States, they must all leave the United
States to apply for immigration benefits. It is upon leaving the
United States that the Bar to Admissibility raises, and the person
is prohibited from returning to the United States until they have
satisfied the requirements of the Bar to Admissibility.
Note that even if a person manages to make it back tot he USA without
the Bar to Admissibility issue being spotted (such as on a Visa
Waiver), this does not waive the Bar to Admissibility, and that
person may be caught by the immigration service if they apply for
future immigration benefits.
THERE ARE TWO DIFFERENT BARS TO ADMISSIBILITY
. . . . .
BAR 1:
An alien unlawfully present for more than 180 days but
less than one year, but who left the United States voluntarily
before removal proceedings began, is inadmissible for three
(3) years from the date of departure or removal from the
United States.
BAR 2:
An alien unlawfully present for 365 days or more is
inadmissible for 10 (ten) years from the date of departure
or removal from the United States.
__________________________________________________
The "Bar to Admissibility", under the definitions
contained in
Immigration & Nationality Act Section 212(a)(9)(B) applies to:
- a person who entered the United States without inspection
(illegally)
and stayed longer than the requisite period of time, or .
. . .
- a person who overstayed a nonimmigrant visa for longer than
the
requisite period of time, unless they qualify for a Waiver*,
or . . . .
- a person who engaged in unauthorized employment in violation
of
the terms of their nonimmigrant visa, cannot be admitted for
permanent
residence until the applicable departure time requirement
of the "bar"
has been satisfied, by remaining outside the United States
for a period
of three (3) or ten (10) years, unless they qualify for a
Waiver*.
____________________________________________________________________________________
* EXCEPTIONS (WAIVER) TO
THE BAR, OR
SATISFYING THE BAR TO ADMISSIBILITY REQUIREMENTS
The Bar to Admissibility can be satisfied by the alien leaving
the United States for the required period of time.
In addition, exceptions to the Bars to Admissibility exist for minors,
asylees, family unity beneficiaries, spouses, parents, and minor
children of U.S. citizens, spouses, and minor children of lawful
permanent residents, and battered spouses and children.
Also, the "unlawfully present" periods are tolled for up to 120
days for those who were admitted or paroled and who thereafter filed
a "nonfrivolous" application for change or extension of status before
their authorized stay expired, and were not employed without employment
authorization.
A person who made an uninspected entry (entered illegally without
being inspected by an immigration officer) into the United States
is not eligible for the Waiver of the Bar to Admissibility while
they are in the United States, even if they are in one of the otherwise
excepted categories.
Adjustment of status to that of Permanent Resident is not allowed
within the United States for persons who entered illegally without
inspection by an immigration officer. They MUST go to the U.S. Embassy
or Consulate in their home country for issuance of a Permanent Residence
Visa, after the Relative Petition is approved by the Immigration
Service and an interview is scheduled.
Upon proper application at the U.S. Embassy or Consulate at the
time of the permanent residence interview, the "Bar to Admissibility"
may be waived for an immigrant who is the spouse or minor child
of a U.S. Citizen or the spouse of a lawful permanent resident who
made an unlawful entry, if extreme hardship would result
to the qualifying U.S. Citizen or permanent resident alien relative.
As a practical matter, his type of waiver is routinely given at
the U.S. Consulate outside the United States without strict application
of the hardship rule.
The law relating to the Bar to Admissibility and its exemptions
are very complex. We advise seeking the advice of competent legal
counsel for assistance in all family and business related immigration
matters.
Please see our Contact
Page for our email address.
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