Nonimmigrant Visa (Employment Based)...

8Current Fees

8Nonimmigrant Visa CHART

8Nonimmigrant Visa TYPES

8BASICS

4Employment Issues
4US VISIT "Biometric Entry-Exit Inspection"
4Visa "Sticker" Validity:  Entry Document
4Visa "Status" Validity (Duration of Status):  I-94 Arrival/Departure Card

4Visa "Sticker" Validity  &  Visa "Status" Validity (Duration of Status) SIMPLE CHART
4Visa "Sticker" Validity  &  Visa "Status" Validity (Duration of Status) EXAMPLES

4Pending Nonimmigrant Visa Application "Authorized Stay"
4"Violation of Status" "Out of Status" & "Overstay (Unlawful Presence)"

4Overstay (Unlawful Presence)

8Petition Process:  OVERVIEW

4Petition Process:  US CIS APPROVAL NOTICE (I-797)

4Approval Notice Type & Visa "Sticker" CHART

4Petition Process:  Visa "Sticker" APPLICATION (Issuance, Renewal & Revalidation)

4Visa "Sticker" Issuance Concerns
4Overseas U.S. Consulate/Embassy:  New Visa Issuance and Visa Renewal
4U.S. Department of State (within the U.S.):  Visa Revalidation
....4Revalidation (Normal Procedure)
........4EVAF DS-156
........4Revalidation ("Automatic" Revalidation/Canada/Mexico & Contiguous Territory)

4Approval Notice Type & Visa "Sticker" CHART

4Canada/Mexico Third Country National (TCN) Processing
........4Canada/Mexico TCN Filing CHART
........4Country/National Specific Information (LIMITED)

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8Other Issues

4New (05) : RFE (Request For Evidence) Clarification Memo (May 2005)
4"Visa Screen Certification" Requirement (July 26, 2004) For Health Care Workers/Specialists
4E-Filing (on-line filing) of Certain Applications (New Procedures)
4"Inadmissibility Bar," Social Security Number, Entry & Exit "Monitoring System", Foreign National Database

Employment Issues

Employment-conferring nonimmigrant visas are generally limited:  the employee will work within the scope of the job title/job description/work site and for the specific employer.  However, the employer may be functioning as an agent/representative in some instances.  Unauthorized employment is not allowed, and one can not "freelance" because he/she has an approved visa "sticker" or visa "status" for one employer/petitioner.  Furthermore, foreign nationals can not simply change the employer/petitioner without obtaining prior approval (exceptions, i.e., employment authorization via F-1 "practical training" status, H-1B AC 21 "portability").  Derivative spouses of "E" and "L" holders are provided separate work authorization, although most other nonimmigrant visas do not allow spouses of principle visa holders to lawfully work (without separate authorization).
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US-VISIT (Biometric)" Entry/Departure Inspection System

The DHS (Department of Homeland Security) implemented the "U.S. Visitor and Immigrant Status Indication Technology (US VISIT)" system -- the use of biometric identification for foreign nationals entering/departing the United States.  This system requires from all foreign nationals a minimum of two biometric identifiers, such as digital photographs and fingerprints.  More importantly, the US VISIT system accesses immigration information about an individual's past/present entry, departure, and stay, and access criminal history (such as DWI and shoplifting) and other information stored in the government's databases.  During the past 2 years, implementation of the US VISIT for entry and departure have been implemented.

"Biometric Entry" Entry/Inspection Information Collection
This system requires from a majority of foreign nationals a minimum of two biometric identifiers upon entry/admission to the United States at the POE (port-of-entry):  digital photographs and digital fingerprints.

"Biometric Exit" Exit Information Collection
"Biometric exit" is similar to the biometric entry/inspection system and requires the foreign national, at the time of departure, to provide a minimum of two biometric identifiers:  digital photographs and digital fingerprints.  Currently, three methods/types of "biometric exit" system are utilized/contemplated:  at a self-service "kiosk (ATM)", "handheld scanning by WSA (Work Station Attendants)," or a combination of both.  Regardless, it appears that printed receipts, obtained through the kiosk and/or WSA may be required to be presented at the gate before boarding.

VWP (Visa Waiver Program) Travelers - Digital Photo Passport Requirement
Travelers who are not required to obtain a "visa sticker" at a U.S. Embassy/Consulate, such as visitors using the VWP (Visa Waiver Program) are strictly required to undergo US VISIT entry/exit inspection as they are not subject to background checks that accompany the "visa sticker" issuance process at the U.S. Embassy/Consulate.

i8Gov. Site: US VISIT Site (10/2005) (DHS)
i8Details/Topic: US VISIT Details
i8Details/Topic: Database of Foreign Nationals
i8Related: Entry/Admission & Inadmissibility Bars....

Mistaken Identify?
The DHS might have erroneous information about you.

`PDF4Download:US VISIT Redress/Amend Fact Sheet (06/04) (DHS)
i8Gov. Site: US VISIT Redress/Amend Information (06/04) (DHS)

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Visa "Sticker" Validity:  Entry Document

The visa "sticker" is an entry document to be admitted into the United States.
The visa "sticker" is issued by the U.S. Department of State (U.S. Consulate/Embassy).
(In the nonimmigrant visa chart, the time period indicated show commonly issued validity periods of a visa "sticker.")
For example, if a B-1/2 visa "sticker" is valid for 5 years, then B-1/2 visa entry into the United States is allowed for 5 years.
However, the duration of status in the U.S. afforded to a foreign national's specific visa "sticker" entry is not necessarily determined by the visa "sticker" validity period.  Instead, the valid period of a visa "status" is indicated on the I-94 Arrival/Departure Record document (card) issued upon entering the U.S. (or within the U.S. after receiving an Approval Notice Form I-797A, from the US CIS).
Note:  Once an individual is in the United States, it is the visa "status" I-94 Arrival/Departure Record document that determines the authorized duration of status of a foreign national.

Therefore, keep in mind the following:
1)  The visa "sticker" is normally required for ADMISSION into the U.S.,
2)  The expiration date on the I-94 card normally determines the length of authorized DURATION OF STATUS in the U.S.
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Visa "Status" Validity (Duration of Status):  I-94 Arrival/Departure Record Document

The I-94 Arrival/Departure Record card is the visa "status" document that determines the authorized duration of status of a foreign national.
The I-94 Arrival/Departure Record card is normally issued when one is admitted into the U.S., by the POE (port-of-entry) officer of the US CIS (or within the U.S. after receiving an Approval Notice Form I-797A, from the US CIS).
(In the nonimmigrant visa chart, the time period indicated show commonly issued validity periods of a visa "status.")
For example, if a B-1/2 visa "status" is valid for six months, then the B-1/2 foreign national can remain in the U.S. with valid duration of status (even if the B-1/2 visa "sticker" expires).
Note:  Once an individual is in the United States, it is the visa "status" I-94 Arrival/Departure Record document that determines the authorized duration of status of the foreign national.

No Duration of Status Expiration Date ("D/S" Duration of Stay)
The I-94 Arrival/Departure Record card will indicate an expiration date of the duration of status.
However, certain visas, such as for students (F-1, M-1, etc.) and "I" Media Representative visa, do not have an expiration date, but is marked "D/S (Duration of Stay)."  This means that there is no set expiration date.  Instead, the expiration of the duration of status of a "D/S (Duration of Stay)" document is attributed to the underlying need/purpose/duration of the visa classification.  (For example, a F-1 student's Duration of Status expiration date will be indicated on the SEVIS I-20 School ID Form/Enrollment Document, which indicates the Duration of Stay.)

Maximum Duration of Status
There are maximum duration of status periods for certain nonimmigrant visas.  However, this is normally calculated by the total amount of time spent in the U.S. under a specific type of visa.

Example:
1.  U.S. Consulate issues H-1B visa "sticker" valid until 5/5/05 (assumption:  this is the maximum period allowed for this individual for this visa).
2.  Upon entry to the U.S. on 1/1/03, I-94 visa "status" is valid until 5/5/05 (maximum period).
3.  Individual leaves the U.S. between 5/1/04 and 5/5/04 -- for one year.
4.  The period of one year, at a later time, may be recovered as "unused" periods of stay for this individual's total 6-year H nonimmigrant visa.

Therefore, keep in mind the following:

1)  The visa "sticker" is normally required for ADMISSION into the U.S.,
2)  The expiration date on the I-94 card normally determines the length of authorized DURATION OF STATUS in the U.S.

Note/I-94 Errors: The I-94 Arrival/Departure Record card is issued upon admission into the United States at a Port-Of-Entry (POE) by the US CBP (Customs & Border Protection), or within the United States by the US CIS (Citizenship & Immigration Service) with Approval Notice I-797A (if extentions/change of visa "status" is filed and approved.)  Once a nonimmigrant foreign national is in the United States, the I-94 Arrival/Departure Record card documents the individual's visa "status," category of admission, and duration of stay. Errors in the I-94 Arrival/Departure Record card (category of admission, status and duration of stay) can impact the foreign national during his/her stay in the United States, and also in the future.  (The I-94 departure section must be provided when leaving the United States.)  With the implementation of the US VISIT system (biometric tracking of arrival/departure/stay/conduct of foreign nationals in the United States), and the commencement of the US VISIT "exit" procedure, it is even more important to make sure that information contained in the I-94 Arrival/Departure Record card is accurate. 1.  An April 2005 Memorandum from the US CBP informs that corrections for I-94 issued at a Port-Of-Entry (POE) by the US CBP (Customs & Border Protection) can be requested at the actual US CBP POE or at a Local/District "Deferred Inspection" Department of the US CBP Office nearest to the foreign national's final destination.  `PDF4Download: US CBP Correcting I-94s Issued at POE (04/2005) (US CBP/DHS) i8Gov. Site: US CBP Port-Of-Entry (POE) Office Locations (04/2005) (US CBP/DHS) i8Gov. Site: US CBP Local/District "Def. Inspec." Office Locations (04/2005) (US CBP/DHS) `PDF4Download: US CBP Local/District Office List (05/2004) (US CBP/DHS) 2.  Correction for I-94 errors for I-94 cards issued by the US CIS (Citizenship & Immigration Service) [for example, issued by the Regional US CIS Service Center with an approved I-797A extension/change of visa "status" application] can be requested at the Local/District US CIS Office.  (However, if the Local/District US CIS Office cannot make a determination/correction, then the foreign national will need to file Form I-102 with the Regional US CIS Service Center.) `PDF4Download: US CIS Correcting I-94s Issued With I-797 (03/2004) (US CIS/DHS)

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Visa "Sticker" Validity  &  Visa "Status" Validity (Duration of Status) SIMPLE CHART

bbbb	What is it?	Who issues it?	Other
Visa "Sticker" (Entry Document)	The "visa" inside a passport.	US Dept. of State (US Consulate/Embassy, located overseas, or "revalidate"* in the U.S.) Note:  Some visas require the "status" to be approved, first (see below).	This is an "entry document," generally used to ENTER the U.S., until expiration, and indicates the visa category used at the time of entry.
Visa "Status" (U.S. Duration of Status Document)	The I-94 "Arrival/Departure" card, -or- the US CIS(INS) "Approval Notice," Form I-797A (that has the I-94 card).	US CIS(INS), at POE (port-of-entry), - or - the US CIS(INS) (located in the United States).	This is the "U.S. status" document," indicating the DURATION of status (and visa category during such status).
bbbb	bbbb	bbbb	*Revalidation of the visa "sticker" is limited to certain visas (and also if one has held the same visa, in the past.)  More about "revalidation." *Until July 16, 2004

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Visa "Sticker" Validity  &  Visa "Status" Validity (Duration of Status) EXAMPLES

Example:

1.  U.S. Consulate issues an H-1B visa "sticker" valid until 5/5/05.
2.  Upon entry to the U.S. on 5/5/03, the I-94 is issued and is valid until 4/4/04 (expiration date of the duration of status).
3.  In this instance, one will generally be considered as "out of status" (and "overstaying") if he/she remains in the U.S. after 4/4/04, even though the visa "sticker" is valid until 5/5/05.

Example:

1.  U.S. Consulate issues a B-1/2 visa "sticker" valid until 5/5/05.
2.  Upon entry to the U.S., I-94 is valid until 8/8/05 (expiration date of the duration of status).
3.  In this instance, one will generally NOT be considered as "out of status" (and "overstaying") if he/she remains in the U.S. until 8/8/05, even though the visa "sticker" has expired.

Example:

1.  U.S. Consulate issues a F-1 visa "sticker" valid until 5/5/05.
2.  Upon entry to the U.S., I-94 is indicated only by "D/S (Duration of Stay)" (no expiration date of the duration of status).
3.  F-1 student continues school until 6/6/09.
4.  In this instance, one will generally NOT be considered as "out of status" (and "overstaying") even if he/she remains in the U.S. until 2009, even though the visa "sticker" has expired.

Example:

1.  U.S. Consulate issues visa "sticker" valid until 5/5/05.
2.  Upon admission to the U.S., I-94 is valid until 5/5/05 (expiration date of the duration of status).
3.  If individual applies timely, a non-frivolous application for an extension of status or change of status by 5/4/05, the individual is provided an "authorized stay" and is not considered as an "overstay" (but does not have visa "status" (duration of status)).
Note:  The individual is allowed to stay in the United States because he/she has "authorized stay," but actually does not have visa "status."  (See Pending Nonimmigrant Visa Application "Authorized Stay".)

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Pending Nonimmigrant Visa Application "Authorized Stay"

An individual with a timely filed nonimmigrant visa "status" application has "authorized stay" and does not accrue unlawful presence.  (However, this is different from having visa "status.")

The US CIS has issued revised guidance on the applicability of 212(a)(9)(b) to individuals who have applied for a change of nonimmigrant status (COS) or extension of stay (EOS) and who remain in the United States after the expiration date of their I-94 Arrival/Departure Record card (while waiting a decision on their application):  The individual does not accrue any unlawful presence during the pendency of the COS/EOS application, as long as the application was:  (a) timely filed, (b) nonfrivolous, and (c) the individual did not engage in unauthorized employment prior to (or during) the pendency of the application (Note:  AC21 H-1B portability allows H-1B applicants in certain situations to work during this period, prior to approval).
Individuals who meet these criteria are considered to be in a period of "authorized stay" during the entire period that the COS/EOS application is pending, and therefore they would not be subject to either INA 212(a)(9)(b) or 222(g).

Important:  However, "authorized stay" is not the same as having a valid visa "status" (duration of status).  Therefore, if an applicant files another visa application during "authorized stay," the application will not be considered as timely filed.  This is because the first application is filed during valid "status," and the second application is filed during only a period of valid "authorized stay."
If the first application is approved, then, the applicant once again receives valid "status."  (Therefore, a second application can be filed after visa "status" is regained.  (Note:  However, if the initial application is an extension of status, and upon approval, the visa "status" indicates approval (continuation of visa "status" since the expiration of the first visa "status," it may be possible to argue that the second visa application was, indeed, filed during valid visa "status").
Note:  To be safe, if multiple applications are being considered, they should all be filed before before the expiration of the visa "status" document (I-94 Arrival/Departure Card), and if "D/S," file applications without having violated status.

`PDF4Download: US CIS Memorandum "Authorized Stay" VS "Visa Status" (04/03) (US CIS/DHS)
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"Violation of Status"  "Out of Status"  &  "Overstay (Unlawful Presence)"

There is a difference between a "violation of status" "out of status" and "overstay (unlawful presence)."

Violation of Status occurs when a nonimmigrant takes action that is not within the scope of the visa category.

......- example:  F-1 student working without authorization.

Out of Status occurs when a duration of status has expired, and/or when a "violation of status" occurs (and when such a determination is made by the US CIS).

......- example:  H-1B specialist with an expired visa "status" (duration of status) document.
......- example:  F-1 student working without authorization (violation of status) and a determination of violation made by the US CIS.

Overstay (Unlawful Presence) occurs when an individual is "out of status (expired duration of status)" (and if he/she does not have "authorized stay.")

......- example:  B-2 tourist with an expired visa "status" (duration of status) document and who files an untimely change of
...........status application (and therefore does not have "authorized stay")

There are different types of penalties for the above, including the 3/10 year "inadmissibility" bar for 180/365 days of Overstay (unlawful presence)."

Overstay (Unlawful Presence)

Overstay (unlawful presence) in the United States can affect an applicant in many different ways.  The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) created the "3- and 10- year inadmissibility" bars for individuals who are unlawfully present in the United States.  The overall consequence of being "unlawfully present" are:

1.  If in the U.S., and applying for a nonimmigrant visa, prohibit an applicant from changing or extending visa "status" in the United States.
2.  If outside the U.S., prohibit an applicant from obtaining a "visa" (nonimmigrant OR immigrant) at the U.S. Consulate/Embassy.
3.  If in the U.S., and applying for an immigrant visa ("green card"), prohibit an applicant from "adjustment of status" in the United States.  This is known as a "bar to adjustment".

The period of overstay (unlawful presence) generally begins on:

1)  expiration date* of the visa "status" (duration of status) document (I-94 Arrival/Departure Card), or
2)  violation of status**, determined by an immigration judge, or
3)  violation of status**, determined by the US CIS during the course of adjudicating a benefit application.

*No date, but "D/S (Duration of Stay)" on I-94 Arrival/Departure Card (typical "D/S" holders are F, M, J and I visa status holders).
For those who do not have an expiration date on the I-94 card, but "D/S," there can be no overstay (unlawful presence) unless (2) or (3) above.

**Violation of Status:  i.e., unauthorized employment; for a student, a failure to pursue a full course load; for nonimmigrant worker, a violation of the terms of the particular visa.

Important:  A violation of status determination must be must be made by an immigration judge or the US CIS, for the individual to be considered to be unlawfully present.  Therefore, even if a person is in "violation of status," he/she may not be considered as being an overstay (unlawfully present) -- unless there is a determination.

Students with "D/S": Students do not have an expiration date on the visa "status" (duration of status) document, but "D/S" (Duration of Stay) on the I-94 Arrival/Departure Card (typical "D/S" holders are F, M, J and I visa status holders).  Unless a violation of status determination is made, there is no overstay (unlawful presence), even if there are status violations. Therefore, if a "D/S" student files for "re-instatement" to F-1 status, he/she may trigger the US CIS to make a determination that there is a violation of status.  If this determination is made, overstay (unlawful presence) begins on the date of the determination.

Note: Even if an individual substantively qualifies for a nonimmigrant or immigrant visa "green card," there are grounds of "inadmissibility" that may ultimately disqualify him/her from obtaining the visa "sticker" or "status."  Inadmissibility greatly immigrant visa "green card" applications.

i8Related Topic: Grounds of "Inadmissibility" / Bar to Adjustment

Depending on whether the applicant, employee, and/or beneficiary is in the United States or outside the U.S., the type of visa, and the foreign national's current and prior immigration status, visa applications (visa "sticker" and visa "status") may require several steps and several agencies.

Keep in mind the following:

The visa "sticker" is an entry document to be admitted into the United States.
(The visa "sticker" is issued by the Department of State, normally at the U.S. Consulate/Embassy, overseas.)

The visa "status" is the I-94 Arrival/Departure Record card, that evidences valid duration of status in the United States.
(The I-94 card is normally issued when one is admitted into the U.S. at the POE (port-of-entry), or within the U.S., when receiving an Approval Notice Form I-797A, from the US CIS.)

Important:  Some visa categories do not require an Approval Notice from the US CIS for visa "sticker" issuance, but most employment-related visa categories require an Approval Notice, first.  (After obtaining an Approval Notice, apply for the visa "sticker" with the Department of State.)
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Petition Process:  US CIS APPROVAL NOTICE (I-797)

Some visa categories do not require an Approval Notice from the US CIS for visa "sticker" issuance, but most employment-related visa categories require an Approval Notice, first.  (After obtaining an Approval Notice, apply for the visa "sticker" with the Department of State.)

No US CIS Approval Notice Required

If an applicant, employee, and/or beneficiary is seeking a type of visa that does not require a US CIS Approval Notice, then the individual will apply directly with the Department of State for visa "sticker" issuance.

US CIS Approval Notice Type I-797(B)

If an applicant, employee, and/or beneficiary is not in the United States, but is seeking a type of visa that requires a US CIS Approval Notice, then, he/she will first obtain Approval Notice Type I-797B.  The "B" indicates that the visa classification requested has been approved, but no visa "status" has been issued.  (One reason:  visa "status" is duration of status -- in the United States.  In this case, the individual is not in the United States, so no status can be given.)
The individual will apply, with the approval notice, for a visa "sticker" with the Department of State (normally, visa issuance).

US CIS Approval Notice Type I-797(A)

If an applicant, employee, and/or beneficiary is in the United States, then the individual will normally has a visa "sticker" and visa "status."  In this case, the applicant may file an extension of status (EOS) or change of status (COS) to another visa category.  In this case, he/she will obtain an Approval Notice Type I-797A.  The "A" indicates that the visa classification requested has been approved and a new (or extended) visa "status" has been issued.  (The Approval Notice Form I-797A will include a new I-94 Arrival/Departure Record card.)
The individual will apply, with the approval notice, for the visa "sticker" with the Department of State (normally, new visa issuance, visa renewal, and visa revalidation).

Important:  Because the individual is provided with a new/extended I-94 Arrival/Departure Record card (a new visa "status" and duration of status document), he/she does not necessarily have to obtain a new visa "sticker."  (See Visa "Status" Validity (Duration of Status):  I-94 Arrival/Departure Card.)

Example:
1.  U.S. Consulate issues visa "sticker" valid until 5/5/05.
2.  Upon admission to the U.S., I-94 is valid until 5/5/05 (expiration date of the duration of status).
3.  If individual applies timely, a non-frivolous application for an extension of status or change of status by 5/4/05, the individual is provided an "authorized stay" while the application is pending.
4.  The US CIS issues Approval Notice Type I-797A with an extended and/or new visa classification and a new/extended I-94 Arrival/Departure Record card (a new visa "status" and duration of status document).
5.  The individual does not necessarily have to obtain a new visa "sticker," because the visa "sticker" is an ENTRY document (and the individual is already in the United States).

Important:  If the applicant is "out of status" when the EOS or COS application is filed, then he/she may only receive the type "B" Approval Notice. (See "Violation of Status" "Out of Status" & "Overstay (Unlawful Presence)".)

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i8DETAILS (CHART):  Approval Notice Type & Visa "Sticker" Chart

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Note/I-94 Errors: The I-94 Arrival/Departure Record card is issued within the United States by the US CIS (Citizenship & Immigration Service) with Approval Notice I-797A (if extentions/change of visa "status" is filed and approved.)  Once a nonimmigrant foreign national is in the United States, the I-94 Arrival/Departure Record card documents the individual's status, category of admission, and duration of stay.  Errors in the I-94 Arrival/Departure Record card (category of admission, status and duration of stay) can impact the foreign national during his/her stay in the United States, and also in the future.  (The I-94 departure section must be provided when leaving the United States.)  Correction for I-94 errors for I-94 cards issued by the US CIS (Citizenship & Immigration Service) [for example, issued by the Regional US CIS Service Center with an approved I-797A extension/change of visa "status" application] can be requested at the Local/District US CIS Office. However, if the Local/District US CIS Office cannot make a determination/correction, then the foreign national will need to file Form I-102 with the Regional US CIS Service Center. `PDF4Download: US CIS Memorandum "I-94 Error Correction" (03/04) (US CIS/DHS)

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Petition Process:  Visa "Sticker" APPLICATION (Issuance, Renewal & Revalidation)

Some visa categories do not require an Approval Notice from the US CIS for visa "sticker" issuance, but most employment-related visa categories require an Approval Notice, first.  (See Petition Process:  US CIS APPROVAL NOTICE (I-797).)

- The visa "sticker" is an entry document to be admitted into the United States.
- The visa "sticker" is issued by the Department of State, normally at the U.S. Consulate/Embassy, overseas.

There are three types of applications for visa "stickers":  new visa issuance, visa renewal, or visa revalidation.

1.  Overseas U.S. Consulate/Embassy:  new visa issuance
2.  Overseas U.S. Consulate/Embassy:  visa renewal
3.  U.S. Department of State (within the U.S.):  visa revalidation

June 23, 2004:  Visa "Sticker" Issuance Concerns Procedures for obtaining visa "sticker" at the DOS and/or US Consulate/Embassy continue to change.  Recent requirements include mandatory appointment/interviews (in most cases) for visa "sticker" issuance/renewal at the US Consulate/Embassy, use of EVAF DS-156 forms, etc., and by October 26, 2004, the US VISIT biometric identification system must be incorporated into visa "sticker" procedure at US Consulates/Embassies (meaning, digital fingerprinting and photographing at the time of applying for a visa "sticker").  Additionally, as of September 30, 2004 US VISIT biometric entry inspection will be required for visitors entering the United States with the VWP (Visa Waiver Program), unless the VWP traveler has a MRP (machine-readable passport) with ICAO "bio data" (ICAO - International Civil Aviation Organization). In short, by the end of October 2004, DHS and the DOS seeks to ensure that foreign nationals seeking visa "stickers" and/or visa "status" (upon admission into the United State at a Port-Of-Entry), be in possession of an entry document that includes biometric identification data. The visa revalidation procedure for obtaining the visa "sticker" at the DOS, via mail (no appointment and no US VISIT-like process for obtaining digital fingerprints/photographs available) is contrary to this policy, and will no longer be available after October 26, 2004.  Additionally, because the DOS will be unable to produce visa "stickers" without biometric data after October 2004, revalidation applications must be received by the DOS on/before July 16, 2004.  Visas such as C, E, H, I, L, O or P will no longer be revalidated (however, A-1, A-2, G-1, G-2, G-3, G-4, NATO-1, NATO-2, NATO-3, NATO-4, NATO-5 and NATO-6 will continue to be processed). `PDF4Download: MNA DOS Visa Revalidation Discontinuance (04/04) (DOS) While biometric data can be collected at US CIS' ASC (Application Support Centers) and the US CBP at the POE (port-of-entry), apparently, these systems are currently different.  In the future, these different systems may be consolidated and the DOS may use them so that revalidation applications are possible.  In the meanwhile, the burden on overseas U.S. Consulates/Embassies for issues visa "stickers" will increase.

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Overseas U.S. Consulate/Embassy:  New Visa Issuance and Visa Renewal

In the past, applicants could file for a visa "sticker" (new visa issuance or visa renewal) in many ways:  1) if the U.S., mail the application to his/her home country, 2) use the "drop-off" box at the U.S. Consulate/Embassy, 3) by mail, 4) travel agency, etc.  Many of these options have disappeared, depending on the U.S. Consulate/Embassy.  Also, appointments and in-person interviews were and are available for this process, but were generally not mandatory (because the U.S. Consulate/Embassy officers had discretion to waive interviews).

As of August 1, 2003, the Department of State is limiting the officers' discretion to waive interviews; in short, appointment for visa "sticker" will become necessary for almost all applicants at all offices of the U.S. Consulate/Embassy.

Applicants who will not require appointments after August 1, 2003, are applicants who:

1.  Pose no national security concerns requiring an interview , and who:
a.  Is a child 16 years of age or under, or
b.  Is a person 60 years of age or older, or
c.  Is seeking the following visas:  A-1, A-2, C-2, C-3, G-1, G-2, G-3, G-4, NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, or NATO-6, or
d.  Is an applicant for a diplomatic or official visa as described in sections 41.26 and 41.27, respectively, or
e.  Is an applicant who within twelve months of the expiration of the applicant's previously issued visa is seeking renewal of a same visa at the consular post of the alien's usual residence, or
e.  Is given a waiver of personal appearance is warranted in the national interest or because of unusual circumstances.

Keep in mind, regardless of August 1, 2003, that in the following situation, an appointment is always required:  Where an applicant:

1.  Does not reside in the consular district where they are making application, or
2.  Previously refused visas (unless the refusal was overcome), or
3.  Are the subject of a CLASS hit, or require a security advisory opinion or other Department clearance; (exceptions can be made for A and G visas), or
4.  Identified by post as belonging to a group or sector of its visa clientele representing a high fraud risk, high refusal rate, or a security threat.

Because the rules and polices for a new and/or renewal of visa "sticker" differ at each U.S. Consulate/Embassy, and because of continuing changes, it is important to assess current and specific information if/when considering this type of application.

(See limited information "Country/National Specific Information (LIMITED)".)
(See "news/updates" News/Updates.)
(Visit the Department of State i8Gov. Site: Dept. of State.)

Important:  While an applicant normally applies for the visa "sticker" in his/her home country, it may be possible to file as a Third Country National at overseas U.S. Consulates/Embassies.
(See Canada/Mexico Third Country National (TCN) Processing.)

Important: As of January 2004, the DS-156 to be used for "revalidation" should be the EVAF (Electronic Visa Application Form) version.  By accessing the Department of State's (DOS) official site, an applicant can generate the DS-156 form via an on-line form "completion" program.  This is unlike the actual on-line filing of applications that is provided by the US CIS for limited types of applications.  The EVAF DS-156 form, after completion, creates a barcode imprint for faster processing by an officer when the application is actually submitted.  To use the EVAF DS-156, the following is required:  Internet browser supporting 128-bit encryption, use of either an ink-jet or laser printer to print the completed application form (if using Internet Explorer (Windows), the minimum version that will work with this site is version 5.0, with service pack 2; if using Netscape, the minimum version that will work with this site is version 6.2).  Adobe Acrobat Reader is also required in order to download and print the completed application form (the minimum version that will work with this site is version 5).
i8Gov. Site:  Dept. of State's EVAF DS-156 Section

Important: By October 26, 2004, the US VISIT biometric identification system will be incorporated into visa "sticker" procedure at US Consulates/Embassies (meaning, digital fingerprinting and photographing at the time of applying for a visa "sticker").  Therefore, by the end of October 2004, individual appointments will be required for virtually all applicants seeking a visa "sticker" (unless due to the age or diplomatic/government visa categories).

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U.S. Department of State (within the U.S.):  Visa Revalidation

 

The visa revalidation procedure for obtaining the visa "sticker" at the DOS (within the U.S.), via mail (no appointment and no US VISIT-like process for obtaining digital fingerprints/photographs available) is contrary to this policy, and will no longer be available after October 26, 2004.  Additionally, because the DOS will be unable to produce visa "stickers" without biometric data after October 2004, revalidation applications must be received by the DOS on/before July 16, 2004.  Visas such as C, E, H, I, L, O or P will no longer be revalidated (however, A-1, A-2, G-1, G-2, G-3, G-4, NATO-1, NATO-2, NATO-3, NATO-4, NATO-5 and NATO-6 will continue to be processed). `PDF4Download: MNA DOS Visa Revalidation Discontinuance (04/04) (DOS)

Revalidation (Normal Procedure)

If an applicant, employee, and/or beneficiary is in the United States, and the individual has a valid I-94 Arrival/Departure Record card (or issued a new valid I-94 card based on an extension of status of the same visa classification by obtaining an I-797A Approval Notice), and the prior visa "sticker" (same visa classification) has expired, he/she may be available to revalidate the visa "sticker" without departing the United States (unlike visa issuance or visa renewal).

Revalidation is available for an applicant who:

1)  is in the United States, and
2)  entered the U.S. using a A, G, E, H, I, L, O or P visa "sticker," and
3)  the A, G, E, H, I, L, O or P visa "sticker," if expired, has not expired for more than 1 year, and
4)  is in possession of a valid visa "status" document in the same visa "sticker" classification used to enter the United States.

Example:

1.  U.S. Consulate/Embassy issues an H-1B visa "sticker" valid until 5/5/05.
2.  Individual enters the U.S., using the H-1B visa "sticker."
3.  Individual, upon admission to the U.S., receives the I-94 "Arrival/Departure" Card (visa "status" document), valid until 5/5/05.
4.  Before the visa "status" document (I-94) expires, applicant timely files a non-frivolous application for an H-1B extension (until 5/5/08),
5.  Individual receives, from the US CIS, approval for the H-1B visa classification and a new H-1B I-94 visa "status" document (Approval Notice type I-797A), valid until 5/5/08.
6.  The individual is in the U.S, with an H-1B visa "sticker" that expired on 5/5/05, but with an H-1B visa "status" that will expire on 5/5/08.

Options:

a)  Individual does not need to renew/revalidate the H-1B visa "sticker," as long as he/she remains in the U.S., because the visa "sticker" is an entry document (and the individual is already in the United States), and because the visa "status" document is valid until 5/5/08, or

b)  Individual, if he/she departs the U.S., can renew the H-1B visa "sticker" at an overseas U.S. Consulate/Embassy, or

c)  Individual, without departing the U.S., can revalidate the H-1B visa "sticker," while in the U.S., at the U.S. DOS (but must do so before 5/5/06 -- because revalidation application will not be accepted if the prior H-1B visa "sticker" has expired for more than 1 year).  Note:  Revalidation will not be available after July 16, 2004 for: C, E, H, I, L, O or P visas.

Important: As of January 2004, the DS-156 to be used for "revalidation" should be the EVAF (Electronic Visa Application Form) version.  By accessing the Department of State's (DOS) official site, an applicant can generate the DS-156 form via an on-line form "completion" program.  This is unlike the actual on-line filing of applications that is provided by the US CIS for limited types of applications.  The EVAF DS-156 form, after completion, creates a barcode imprint for faster processing by an officer when the application is actually submitted.  To use the EVAF DS-156, the following is required:  Internet browser supporting 128-bit encryption, use of either an ink-jet or laser printer to print the completed application form (if using Internet Explorer (Windows), the minimum version that will work with this site is version 5.0, with service pack 2; if using Netscape, the minimum version that will work with this site is version 6.2).  Adobe Acrobat Reader is also required in order to download and print the completed application form (the minimum version that will work with this site is version 5).
i8Gov. Site:  Dept. of State's EVAF DS-156 Section

Important: Procedures for obtaining visa "sticker" at the DOS and/or US Consulate/Embassy continue to change.  Recent requirements include mandatory appointment/interviews (in most cases) for visa "sticker" issuance/renewal at the US Consulate/Embassy, use of EVAF DS-156 forms, etc., and by October 26, 2004, the US VISIT biometric identification system will be incorporated into visa "sticker" procedure at US Consulates/Embassies (meaning, digital fingerprinting and photographing at the time of applying for a visa "sticker").  Additionally, as of September 30, 2004,US VISIT biometric entry inspection will be required for visitors entering the United States with the VWP (Visa Waiver Program), unless the VWP traveler has a MRP (machine-readable passport) with ICAO "bio data" (ICAO - International Civil Aviation Organization).
In short, by the end of October 2004, DHS (Department of Homeland Security) and the DOS seeks to ensure that foreign nationals seeking visa "stickers" and/or visa "status" (upon admission into the United State at a Port-Of-Entry), be in possession of an entry document that includes biometric identification data.
`PDF4Download: MNA DOS Visa Revalidation Discontinuance (04/04) (DOS)

Important:  An applicant may also be able to file for a visa "renewal" as a Third Country National at overseas US Consulates/Embassies.
(See Canada/Mexico Third Country National (TCN) Processing.)
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Revalidation ("Automatic" Revalidation -- Canada/Mexico & Contiguous Territory)

"Automatic" Revalidation (22 CFR Section 41.112(d)) is technicallynot a visa "sticker" issuance procedure, but allows for the re-entry of an individual without the need of having a valid visa "sticker," under certain specific circumstances.

If an applicant, employee, and/or beneficiary is in the United States, and the individual has a valid visa "status" document (I-94 Arrival/Departure Record card, whether initially issued upon entry into the U.S., or issued with an Approval Notice Type I-797A, ) and the prior visa "sticker" (same visa classification) has expired, and he/she is traveling to Canada/Mexico & Contiguous U.S. Territory for less than 30 days (and returns to the U.S.), he/she is allowed re-entry without having a valid visa "sticker."

Traditionally, the "Automatic" Revalidation rule was beneficial for individuals who sought a new/renewal of a visa "sticker" at the U.S. Consulate/Embassy (could not revalidate in the U.S.), but with reasons for not wanting to apply at his/her home country.  Prior to changes in the law, an individual who was refused a visa "sticker" in Canada/Mexico, by using "Automatic" Revalidation, could safely return to the United States.

Currently, non-Canadian/Mexican citizens who have applied for and been refused visa "sticker" issuance at one of the American consulates in Canada or Mexico are barred from returning to the U.S. unless they have a valid and unexpired visa "sticker" in the passport.  (A valid I-94 visa "status" document, alone, is no longer sufficient to return to the U.S..)

Important:  Non-Canadian/Mexican citizens can continue to visit these countries for a period not exceeding 30 days and return to the U.S. without a valid visa "sticker" as long as in possession of a valid visa "status" document and not refused visa "sticker" issuance.  (This means that if one does not apply for a visa "sticker," then the "Automatic Revalidation" rule still applies.)

Important:  Nationals of designated countries (such as Iraq, Iran, Syria, Libya, Sudan, North Korea and Cuba), even if only visiting, are required to have a valid visa "sticker" for re-entry into the United States.

Important:  Canadian permanent residents in the U.S. who have not obtained nonimmigrant visas when they initially entered the United States (Canadian permanent residents were previously not required to have visa "stickers" for entry into the U.S.) and who subsequently return to Canada cannot take advantage of the "Automatic" revalidation provisions in seeking readmission to the U.S.  (This is because even if they meet all the requirements, such as a valid visa "status," seeking readmission within 30 days, valid passport, etc.), they do not (never had) have a visa "sticker," and there is nothing to revalidate.)
 

Examples (applies to travel to Canada/Mexico for less than 30 days, from the United States):

B Nonimmigrant
1.  B nonimmigrant is in the United States.  B visa "sticker" has expired, but the visa "status" I-94 card is unexpired for another 60 days.
2.  B nonimmigrant goes to Canada/Mexico for 30 days or less, only for tourism purposes.
3.  B nonimmigrant can reenter the United States,  without a B visa "sticker," by using the valid visa "status" I-94 card ("Automatic" Revalidation rule).
4.  However, if B nonimmigrant applies for a B visa "sticker," and is refused, then the B nonimmigrant cannot reenter the United States.

F-1 Nonimmigrant (Change of Status)
1. F-1 nonimmigrant is in the United States.
2.  F nonimmigrant has changed status to H-1B, and receives an Approval Notice Type I-797A with approval for the H-1B visa classification and H-1B I-94 card (a new valid visa "status" document).
3.  F nonimmigrant is now an H-1B nonimmigrant, in the United States.
4.  H-1B nonimmigrant goes to Canada/Mexico for 30 days or less, and can reenter the United States, even without a new H-1B visa "sticker."  The nonimmigrant is reentering the United States as an H-1B nonimmigrant, using the valid H-1B visa "status" I-94 card ("Automatic" Revalidation rule).
5.  However, if the H-1B nonimmigrant applies for an H-1B visa "sticker," and is refused, then the H-1B nonimmigrant cannot reenter the United States as an H-1B nonimmigrant.
Note:  If the F-1 visa "sticker" is still valid, then he/she may be able to reenter the U.S. as a F-1 nonimmigrant (but unlikely because he/she is probably not a bona fide student).

H-1B Nonimmigrant Seeking a New Visa Classification & New Visa "Sticker" Issuance
1.  H-1B nonimmigrant is in the United States.
2.  H-1B nonimmigrant has an unexpired H visa "sticker" and unexpired H-1B visa "status" I-94 document.
3.  H-1B nonimmigrant goes to Canada/Mexico for 30 days or less.
4.  H-1B nonimmigrant seeks the E-2 visa by directly applying at the U.S. Consulate/Embassy in Canada/Mexico (the E-2 visa classification does not require prior US CIS approval, therefore, no E-1 visa "status" I-94 card), but the E-2 visa "sticker" is refused.
5.  H-1B nonimmigrant can reenter the United States as an H-1B nonimmigrant because he/she is in possession of a valid H visa "sticker" and valid H-1B visa "status" I-94 document.
Note:  If the H-1B visa "sticker" is not valid, but the individual applies for an H-1B visa "sticker" (after applying for an E-2 and being refused), and the H-1B visa "sticker" is issued, then the individual can reenter as an H-1B nonimmigrant.

The Department of State has stated that individuals who apply for a visa "sticker" while outside the U.S. can no longer benefit from the provision allowing for "Automatic" Revalidation if he/she applies for a visa "sticker" and is refused, and will ensure compliance by indicating "Application Received" stamp in the passports of such applicants and to collect the visa "status" I-94 card (otherwise, the applicant may be able to state, when reentering the United States, that he/she only traveled to Canada/Mexico without applying for a visa "sticker").  The Dept. of State has cabled this instruction, with priority, to:  MEXICO CITY, OTTAWA, BRIDGETOWN, CARACAS, NASSAU, HAMILTON, KINGSTON, SANTO DOMINGO, PORT-AU-PRINCE, HAVANA, PORT OF SPAIN, CURACAO, HALIFAX, QUEBEC, MONTREAL, TORONTO, VANCOUVER, CALGARY, TIJUANA, NOGALES, MONTERREY, CIUDAD JUAREZ, NUEVO LAREDO, MATAMOROS, GUADALAJARA, MERIDA, and HERMOSILLO.
`PDF4Download: Inspector's Field Manual (Dept. of State)

i8DETAILS (CHART):  Approval Notice Type & Visa "Sticker" Chart.

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Canada/Mexico Third Country National (TCN) Filing

The visa "sticker" is issued by the Department of State, normally at the U.S. Consulate/Embassy, overseas, and there are three types of applications for visa "stickers":  new visa issuance, visa renewal, or visa revalidation.
If new visa "sticker" or visa "sticker" renewal, then the process takes place at an overseas U.S. Consulate/Embassy.
While an applicant normally applies for the visa "sticker" in his/her home country, it may be possible to file as a Third Country National at overseas U.S. Consulates/Embassies.

In particular, applying at U.S. Consulates/Embassies in Canada/Mexico & Contiguous U.S. Territories may be advantageous or convenient.
(However, advantages of using the "Automatic" Revalidation rule have been curtailed [See "Automatic" Revalidation -- Canada/Mexico & Contiguous Territory]).

Whether it is in Canada/Mexico, or another country, if an individual is filing for a new or renewal visa "sticker," the applicant is considered as a Third Country National (TCN) Applicant.  Because the rules and polices for a new and/or renewal of visa "sticker" differ at each U.S. Consulate/Embassy, and because of continuing changes, it is important to assess current and specific information if/when considering this type of application.

(See limited information "Country/National Specific Information (LIMITED)".)
(See "news/updates" News/Updates.)
(Visit the Department of State i8Gov. Site: Dept. of State.)

For Canada/Mexico TCN  Applicants:

1. US-based TCNs may not apply for a nonimmigrant visa "sticker" at the border posts if they are from any of the seven "state sponsors of terrorism" (Cuba, Iran, Iraq, Syria, Sudan, North Korea, and Libya) or if there are subject to any of the other Special Processing Requirements imposed after September 11, 2001.
2.  US-based TCNs may not apply at the border posts if they have "overstayed" or in "violation of status" (however, the embassy/consulate may consider and accept a TCN application if it is only a "lapse in status").

i8DETAILS (CHART):  Canada/Mexico TCN Filing Chart

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Country/National Specific Information (LIMITED)

Because the rules and polices for a new and/or renewal of visa "sticker" differ at each U.S. Consulate/Embassy, and because of continuing changes, it is important to assess current and specific information if/when considering this type of application.
(See "news/updates" News/Updates.)
(Visit the Department of State i8Gov. Site: Dept. of State.)

4JAPAN
4CANADA (Canadian Landed Immigrants)
4CANADA/MEXICO Third Country National (TCN) Processing

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JAPAN

The U.S. Embassy/Consulate (Dept. of State) in Japan has issued guidelines for visa "sticker" renewal/revalidation applying to all Japanese citizens.  Visit our section about this matter in the Japanese language section.
i8Details: Visa Issuance/Renewal in Japan (U.S. Consulate/Embassy) [Japanese Language Section]
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CANADA (Canadian Landed Immigrants)

The Department of State has amended regulations that allow certain permanent residents of Canada and Bermuda who share a common nationality with nationals of Canada or with British subjects* in Bermuda to enter the United States without a passport or visa "sticker."  This waiver also included citizens of Commonwealth countries, as well as citizens of Ireland.  The new regulation will remove this benefit and will require these foreign nationals to present a valid passport and a visa "sticker" when seeking to enter the United States.  (An exception to the rule, are foreign nationals entering under the Visa Waiver Program who will require a valid passport but not a visa "sticker".)
(A list of the Commonwealth countries can be found at 9 FAM 41.2. Exhibit I.)

* Hong Kong nationals holding either a British National Overseas or Hong Kong Special Administrative Region passports will require visa "stickers."

Canadian permanent residents in the U.S. who have not obtained nonimmigrant visas when they initially entered the United States (Canadian permanent residents were previously not required to have visa "stickers" for entry into the U.S.) and who subsequently return to Canada cannot take advantage of the "Automatic" revalidation provisions in seeking readmission to the U.S.  (This is because even if they meet all the requirements, such as a valid visa "status," seeking readmission within 30 days, valid passport, etc.), they do not (never had) have a visa "sticker," and there is nothing to revalidate.)
`PDF4Download: US Embassy of Canada (Canadian Landed Immigrants & Related) Information (06/03) (US DOS)

Additionally, as of December 31, 2003, Canadian permanent residents will not be able to return to Canada (enter Canada, via land or via air) unless in possession of the Canadian Permanent Resident card (PR card) or a limited use travel/re-entry document.
i8Gov. Site: Citizenship & Immigration Canada (Permanent Resident Card Information)
i8Gov. Site: Citizenship & Immigration Canada (Travel Document Information)
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CANADA/MEXICO Third Country National (TCN) Processing

The visa "sticker" is issued by the Department of State, normally at the U.S. Consulate/Embassy, overseas, and there are three types of applications for visa "stickers":  new visa issuance, visa renewal, or visa revalidation.
If new visa "sticker" or visa "sticker" renewal, then the process takes place at an overseas U.S. Consulate/Embassy.
While an applicant normally applies for the visa "sticker" in his/her home country, it may be possible to file as a Third Country National (TCN) at overseas U.S. Consulates/Embassies.
(See Canada/Mexico Third Country National (TCN) Processing.)

RFE (Request For Evidence) Clarification Memo (May 1, 2005)
Applications filed with the US CIS may result in an RFE (Request for Evidence) for many reasons, including determination errors (or other errors) by the US CIS.  At the same time, RFEs allow applicants who filed the application to provide additional information, clarification, documents, etc., that can address the concerns and questions raised by the US CIS (including, responding to incorrect determinations or reviews).
In April of 2004, the US CIS issued a guidance memorandum that curtailed the issuance of RFEs and allowed officers to deny an application without providing the applicant the opportunity to address specific and/or general concerns and questions raised by the US CIS.
The April 2004 memorandum caused unwarranted, peremptory denials by the US CIS.
In April of 2005, a new memorandum was issued -- rescinding the Draconian and arbitrary guidelines issued a year before -- and appropriate issuance of RFE by the US CIS have resumed.  The memorandum provides guidance to US CIS Officers:  Approvals should be granted when the application has a "preponderance of evidence" (to meet the criteria of a particular application); Denials should be issued when there is "evidence of clear ineligibility" (for example, an E-1/2 Treaty Application where these is no treaty, etc.); RFEs are issued when there is missing information/evidence (or clarification helpful).  If the officer feels that a response to an RFE would not suffice, then a NOID (Notice of Intent to Deny) will be issued (affording the applicant an opportunity).
`PDF4Download: NEW "RFE (Request for Evidence) Issuance" Guidance Memo (US CIS/DHS) (04/2005)
`PDF4Download: OLD "RFE (Request for Evidence) Issuance" Guidance Memo (US CIS/DHS) (04/2004)
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"Visa Screen Certification" Requirement (July 26, 2004)
Certification requirement for all nonimmigrant Health Care Workers

Effective July 26, 2004, all nonimmigrant heath care workers (i.e. H-1B, J, O, TN) in the following 7 categories must obtain a certification known as "Visa Screen Certificate" and present certification to the Department of Homeland Security each time they apply for admission to the United States, an extension of stay or a change of status. This change affects everyone including those who are already in the United States in valid nonimmigrant status.  The Visa Screen Certificate certifies that the foreign health care workers' education, training, licensing and experience are comparable to those of U.S. health care workers. In addition, it certifies that the foreign health care workers have English language proficiency by passing approved English examination although some foreign nationals (i.e. graduates of health care programs in English-speaking countries) are exempt from this requirement.
While this rule has been in place for several years, and immigrant health care workers have always been required to comply with the certification requirement, the Department of State and Department of Homeland Security have continued to waive the certification requirement for nonimmigrant health care workers. However, by the final rule issued by the DHS, beginning July 26, 2004, the certification requirement will apply to all nonimmigrant health care workers in the following 7 categories:

1. Nurses
2. Occupational Therapists
3. Physical Therapists
4. Speech Language Pathologists and Audiologists
5. Medical Technologists (Clinical Laboratory Scientists)
6. Physician Assistants, and
7. Medical Technicians (Clinical Laboratory Technicians)

Prior to July 26, 2004, the DHS will admit and/or approve applications for extension of stay and/or change of status for nonimmigrant health care workers without the Visa Screen Certificate for a period not longer than 1 year. The nonimmigrant workers then must obtain the Visa Screen Certificate within 1 year of the date of admission or the date of the decision to extend the stay or change the status.

The Commission on Graduates of Foreign Nursing Schools (CGFNS) is authorized to issue certificates for health care workers in all 7 categories. The National Board for Certification in Occupational Therapy (NBCOT) is authorized to issue certificates for occupational therapists. The Foreign Credentialing Commission on Physical Therapy (FCCPT) is authorized to issue certificates for physical therapists. Because the certification process is time consuming, it is advised that you apply as soon as possible.
i8Official Site: Commission on Graduates of Foreign Nursing Schools (CGFNS)
i8Official Site: National Board for Certification in Occupational Therapy (NBCOT)
i8Official Site: Foreign Credentialing Commission on Physical Therapy (FCCPT)
`PDF4Download: MNA Visa Screen Rules / Q & A (06/04)
`PDF4Download: MNA Visa Screen Rules (02/04)
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E-Filing (on-line filing) of Certain Applications (New Procedures)

The US CIS started E-filing (on-line filing) of I-765 (employment authorization) and I-90 (replacement/renewal of "green card") applications in May 29, 2003, and as of December 2003, began accepting payment via credit card (initially, only via electronic payment via financial institution).  As of May 24, 2004, E-filing has been expanded to include:

I-90 -- Application to Replace Permanent Residence Card
I-129 -- Petition for a Nonimmigrant Worker
I-129S -- Nonimmigrant Petition Based on Blanket L Petition
I-131 -- Application for Travel Document
I-140 -- Immigrant Petition for Alien Worker
I-539 -- Application to Extend/Change Nonimmigrant Status
I-765 -- Application for Employment Authorization
I-821 -- Application for Temporary Protected Status
I-907 -- Request for Premium Processing Service

E-filing does not issue approval notices electronically.  Currently, E-filing allows users to obtain a confirmation receipt, a filing receipt (fee and filing date information), and a copy of the filed application form.  Because many applications require submission of documents and evidence, depending on the type of application, documents are required to be provided (mailed in) to the appropriate US CIS office after E-filing.  This means that there may be no significant advantage (currently) for many types of applications that allow E-filing.

Advantages of E-Filing:

1.  For applications such as the I-90, I-765, and I-907, submission of additional documents/evidence by mail may not be necessary.  Moreover, the I-90 and I-765 require the applicant/beneficiary to use the filing receipt (fee and filing date information) to schedule an appointment for biometrics (digital fingerprinting and photographing) at an Application Support Center (ASC).  For these types of applications, E-filing eliminates the need for waiting for a filing receipt to be mechanically issued and mailed to the applicant (beneficiary).

2.  For converting standard-filed applications to I-907 premium processing because a conversion application would only require the submission of the I-907 application form and accompanying payment of $1,000.00.

3.  When using AC21 H-1B Portability, where the new I-129 must be "received" by the US CIS before H-1B employment can begin (E-Filing will allow the petitioner/beneficiary to obtain a filing receipt immediately after E-filing)

4.  For timely filing applications that require submission of substantial evidence and documents (E-filing provides seven (7) business days to submit documents after E-filing applications.

Also, because E-filing will generate a filing receipt with a bar-code, including the fee-in receipt, filing date and other basic information, clerical errors on the part of the US CIS possibly could be minimized.  Filing by mail, depending on the US CIS office, may be subject to delays and mistakes such as:  when the US CIS generates (and mails) a filing receipt; when an application must be transferred to multiple locations, etc.  By accompanying evidence and documents with an E-filed application form and filing receipt (with a barcode), such preliminary steps and errors could be avoided.

Finally, as the DOS (Dept. of State) and U.S. Embassy/Consulate more and more prefer (in some cases, actually require) the use of EVAF DS-156 forms, the US CIS in the future could similarly insist on the use of E-filed forms and receipts to accompany evidence and documents.  Keep in mind that E-filing system of the US CIS is different from the DOS' EVAF electronic application, the US CIS' InfoPass system, the DOL (Dept. of Labor)'s H-1B LCA application (and future PERM application) systems.  It is doubtful that these different systems, formats, etc., will ever be made uniform.

i8Gov. Site: US CIS "E-Filing" Site (DHS/US CIS) (05/24/04)
i8Gov. Site: InfoPass Official Site (DHS/US CIS)  (03/17/04)

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For I-765 & I-90 E-filing, the applicant must:

a)  reside in the United States,
b)  have a bank account and/or credit card,
c)  minimum information:  A# (if applicable), I-94 Arrival/Departure "Status" card (small white card inside passport) number, last date of entry/port of entry, etc.

An applicant cannot E-file I-765 "work authorization" if requesting under:

Category 274a.12(a):  (1) Lawful Permanent Resident, (2) Legalization Temporary Resident, (9) K-3 Nonimmigrant Spouse of U.S. Citizen or K-4 Dependent, (12) Temporary Protected Status (TPS) - Angola, Burundi, El Salvador, Liberia, Montserrat, Sierra Leone, Somalia, Sudan, (14) LIFE Legalization, (15) V-1, 2 or 3 Nonimmigrants
Category 274a.12(c):  (1) Dependent of A-1 or A-2 Foreign Government Officials, (4) Dependent of G-1, G-3 or G-4 Nonimmigrants, (7) NATO Dependent, (10) NACARA Section 203 Applicants who are eligible to apply for NACARA relief with INS, (14) Deferred Action, (19) Temporary Treatment Benefits - Angola, Burundi, El Salvador, Liberia, Montserrat, Sierra Leone, Somalia, Sudan, (21) S Nonimmigrant, (23) Irish Peace Process, (24) LIFE Legalization, (25) T Dependents

An applicant cannot E-file I-90 "green card" if:

(1)  Card was issued before age of 14 and applicant has reached 14th birthday, or
(2)  Applicant is applying for a waiver of the filing fee.

For I-765 & I-90 E-filing, the process is:

1)  I-765 and I-90 applications, filed electronically, on-line.
2)  Print out completed form and sign.
3)  Print out the Confirmation Receipt and Filing Receipt (the US CIS office also will mail applicant a I-797 receipt by mail).
4)  Follow instructions on the Confirmation Receipt (call the US CIS National Customer Service Center @ 800-375-5283, provide Filing Receipt Number) and schedule an appointment at the local Application Support Center (ASC).
5)  During your appointment at the ASC, digital photograph, signature and fingerprints will be taken (take 1 signed completed form and Confirmation Receipt, for I-90s, take 2 signed submitted form and Filing Receipt).
6)  If approved, the "work authorization card" and/or "green card" will be mailed to applicant.

i8Gov. Site: US CIS "E-Filing" Site (May 04) (US CIS)
`PDF4Download: US CIS "E-Filing" Memo (April 03) (US CIS)
 

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Related Concerns & Topics

i8Related Topic: Bar to Adjustment "Inadmissibility Grounds"
Even if a foreign national applicant substantively qualifies for a nonimmigrant or immigrant visa "green card," there are grounds of "inadmissibility" that may ultimately disqualify him/her from obtaining the status.

i8Related Topic: Social Security Number -- SSA, SSN, ITIN (TIN) & I-9

i8Related Topic: Foreign National Entry & Departure Monitoring/Tracking System "US VISIT"

i8Related Topic: Database of Foreign Nationals

B-1:  For individuals visiting temporary for "business", i.e., engaging in commercial transactions such as attending conferences, business meetings, executing contracts, undertaking negotiations.  Can not be "gainfully employed" in the U.S.; payment/salary to B-1 nonimmigrant should be made abroad.  The B-1 or B-2 visa holders are normally allowed into the U.S. for a 6-month period.

Note:
Must have financial support and intent to depart.  Additionally, some port-of-entry offices (Western Region) may disqualify admission of a B-1 nonimmigrant (or corresponding Visa Waiver Program nonimmigrant [see below]) if the foreign national is entering the United States and will be:  a) compensated from a U.S. source (beyond reimbursement for expenses or per diem), or b) even if uncompensated, perform services for which a U.S. worker would have to be hired or are the services inherently part of the U.S. labor market, or c) services primarily benefiting the U.S. entity as local work or hire as contrasted with benefiting the foreign national him/herself or the foreign employer in furtherance of international trade).
`PDF4Download: US CIS Western Regional Memorandum "Admission of B-1/WB Visitors"  (05/02) (US CIS/DHS)

B-2:  For individuals visiting temporary for "pleasure", i.e., engaging in tourism, visiting relatives, attending conventions, language students (less than 18 hours a week).  The B-1 or B-2 visa holders are normally allowed into the U.S. for a 6-month period.  Spouses and dependents of a nonimmigrant visa, such as H-1B, are eligible for an H-4.  However, "cohabitating partners", who are not spouses or dependents, can apply for the B-2 visa.

Note:
Must have financial support and intent to depart.

Cohabitating Partners:
The Department of State (DOS) has issued guidance that emphasize that "cohabitating partners" may apply for the B-2 nonimmigrant visa.  "Cohabitating Partner" means individuals who are not spouses or dependents, but who have lived/resided on a long-term basis, with the principle visa holder.  The DOS states that this is true for "both opposite and same-sex partners."  (Note:  The individual, however, must overcome INA 214(b).)

Medical Treatment:
The VSC (US CIS) indicates that while there are is maximum duration of status for B-2 holders who are receiving medical treatment , or accompanying an individual who is receiving medical treatment.  However, any period over one year will be subject to scrutiny, because the US CIS may make a determination that the B-2 visa holder may have immigrant intent (intent to reside permanently in the U.S., which is contrary to the "temporary/nonimmigrant" nature of the B-2 visa).  With respect to medical treatment related B-2 visas, the duration of status can be longer than a year if sufficient evidence of the need for medical treatment and  ability to financially fund the treatment are presented.  For Medical Treatment B-2s, it is important to prove that there is no U.S. government financing for medical expenses (however, the patient can receive donations from a local church or other non-profit organization that is offering support).

VWP (Visa Waiver Program):
An individuals does not need a B-1 or B-2 visa if they can use the VWP (Visa Waiver Program) for travel to the United States for less than 3 months.  Those who require the B-2 visa because VWP is unavailable, or because the duration is more than 3 months, normally are given a 6-month period of B-1/B-2 stay in the United States.  Once in the U.S., extensions are possible, but too many may be considered as not "temporary."  However, the Department of State has issued guidance stating that:  "the fact that the period of stay in a given case may exceed six months or a year is not in itself controlling, provided the consular officer is satisfied that the intended stay actually has a time limitation and is not indefinite in nature."
(See Visa Waiver Program (VWP).)

Changes to B-1/B-2 Visas (Affecting Intended F & M Students):
On April 12, 2002, the US CIS published new rules imposing new restrictions on B-1/B-2 visitors and those who seek to obtain student visas (after entering the U.S. using a B-1/B-2 visa).

Interim Rule: Prohibition on Attending School Prior to Change of Status from B-1/B-2 to F-1 or M-1
Before the interim rule, visitors admitted under B-1/B-2 visas were allowed to begin attending school before the US CIS approved their request to change status to F-1 or M-1 students.  The interim rule does not eliminate the ability of B-1/B-2 visitors to change their status to F-1 or M-1 students.  However, it prohibits B-1/B-2 visitors from attending school without first obtaining US CIS approval.  The US CIS is instituting this change as a direct result of the terrorist attacks of September 11.

Proposed Rule: New Requirements for Change of Status from B-1/B-2 to F-1 or M-1
In addition to the interim rule, the US CIS issued a proposed rule that requires B-1/B-2 visitors to notify the US CIS of their intent to attend school in the U.S. when they initially enter the US as B-1/B-2 visitors. Furthermore, if they have already received any I-20 forms from schools, they must produce the forms to the inspecting officers at the time of admission.  Inspecting officers will make the proper notification on I-94 Entry/Departure card that the B-1/B-2 visitors are prospective students.
(See F-1 Student Visa.)
(See M-1 Student Visa.)

Proposed Rule: Minimum Admission Period Eliminated
Currently, visitors admitted under B-1/B-2 visas are routinely granted a 6-month period of admission, regardless of the time they actually intend to stay in the United States.  The proposed rule will eliminate the automatic 6-month admission period for B-2 visitors, and only provide a period of time that is necessary as explained by the visitor.  If B-2 visitors cannot explain to the satisfaction of the inspecting officers, they will be granted a 30-day period of admission only.  If B-2 visitors can establish the need for a period of stay longer than 30 days, an appropriate period of admission will be granted up to 6 months.

Proposed Rule: Maximum Period of Admission Reduced
The US CIS is also proposing to reduce the maximum period of admission for B-1/B-2 visitors from 1 year to 6 months.

Proposed Rule: Changes to Standards for Extension of Stay
The maximum period for each extension of stay application will remain 6 months for B-1/B-2 visitors.  However, the proposed rule will limit the conditions under which B-1/B-2 visitors can request an extension of stay.  B-1/B-2 visitors will be eligible for an extension of stay only in cases that have resulted from unexpected or compelling humanitarian reasons.  In addition, they must prove that they have adequate financial resources to support their stay in the U.S. and that they are maintaining a residency abroad which they have no intention of abandoning.

8May 30, 20048 Use of B-1 and/or VWP in Lieu of "I" Media Representative Nonimmigrant Visa The "I" Nonimmigrant Visa is for individuals who are "representatives of the media" (of a foreign press, radio, film or media agency), normally for purposes that are not  "entertainment" oriented.  There is a need to show affiliation (documentation) to foreign sponsor (foreign media organization, association, source, etc.), and a direct application with the U.S. Embassy/Consulate (overseas) is possible.  (No need to obtain prior approval from the US CIS in the United States, if the applicant is overseas).  The US CBP (Customs and Border Protection) announced in May of 2004 that representatives of media not in possession of an "I" visa may enter the United States with a B-1 nonimmigrant visa or use the VWP (Visa Waiver Program) [if the individual is eligible for VWP].  However, the law explicitly prohibits the use of the B-1 in lieu of the "I" visa, and the DOS (Department of State) issued a reminder in May of 2004.  Nonetheless, if necessary, it is not impossible to enter the U.S. with a B-1 or VWP if an "I" visa is not in possession. Note:  However, such entry is not recommended, and if undertaken, the individual will be allowed to do so only for one-time, and subsequent admission to the U.S. will require possession of a valid "I" visa.  (Applicants seeking to enter by using the B-1 and/or the VWP will have to establish all the requirements of an 'I" visa at the POE [port-of-entry].) `PDF4Download:"Use of B-1 and/or VWP in Lieu of I Visa" Memo (US CBP/DHS) (05/2004)

This is not a visa (no change of status, no extension of stay allowed), but is issued for those individuals with B-1 or B-2 intent, and who wishes to enter the U.S. for less than three (3) months.  You must be a national of a qualifying country (individuals who are ineligible for VWP, or those who require US stays of more than 3 months, may seek the B-1/B-2).  Individuals seeking VWP entry must have return-ticket out of the United States (or ticket to another country).  There is no need to apply for visa "sticker" issuance from the US CIS, or visa "sticker" from the U.S. Consulate/Embassy

Visa Waiver Program (VWP) Countries:
Andorra (MRP), Iceland, Norway, Australia, Ireland, Portugal, Austria, Italy, San Marino, Belgium (MRP), Japan, Singapore, Brunei (MRP), Liechtenstein (MRP), Slovenia (MRP), Denmark, Luxembourg, Spain, Finland, Monaco, Sweden, France, the Netherlands, Switzerland, Germany, New Zealand, United Kingdom

Note:
Countries  with the (MRP) designation are required to have machine-readable passports (MRP) as of October 1, 2003 for travelers to enter the U.S on the visa waiver program.  All other countries visa waiver program travelers above must have a MRP as of June 26, 2005 except Belgium, which has had an MRP requirement for VWP travelers since May 15, 2003.

MRP:  Machine-Readable Passport Requirement (June 26, 2005)
A machine readable passport (MRP) has biographical data entered on the data page according to international specifications.  The size of the passport and photograph, and arrangement of data fields, especially the two lines of printed OCR-B machine readable data, meet the standards of the International Civil Aviation Organization, Doc 9303, Part 1 Machine Readable Passports.

MRP-Passport:
VWP visitors are required to possess a MRP-passport (Machine Readable Passport) as of June 26, 2005.  Those who have a nonimmigrant visa "sticker" are not required to have a MRP-passport.
`PDF4Download: US VISIT & VWP Passport Requirements (DHS) (10/2005)
`PDF4Download: US VISIT VWP: MRP-Passport Press Release (Oct./04) (DHS)

One-Time Waiver of MRP-Passport Requirement:
The DHS has announced that a 1-time waiver of the MRP-passport requirement may be granted to a visitor seeking VWP entry.
`PDF4Download: US VISIT VWP:  VWP 1-Time MRP-Passport Waiver (Oct./04) (DHS)

MRP-Passport & Digital Photo Requirement:
As of October 26, 2005, VWP travelers are required to have MRP (machine-readable passports) that include a digital facial photo (unless passport is MRP and was issued prior to October 26, 2005).
`PDF4Download: US VISIT & VWP Passport Requirements (DHS) (10/2005)

MRP-Passport with ICAO-Biometric Information:
As of October 26, 2006, VWP travelers are required to have "e-Passports."  An e-/biometric-Passport has a "biometric" or a "biometric identifier" (an objective measurement of a physical characteristic of an individual) which, when captured in a database, can be used to verify identity or check against other entries in the database.  The best known biometric is the fingerprint, but others include facial recognition and iris scans.  The standard determined by the International Civil Aviation Organization (ICAO) utilizes facial recognition technology and stores it on a contactless chip embedded in the passport.  Exceptions will be allowed for individuals who have a MRP passport that was issued prior to October 26, 2005 and to those who have a MRP passport with a digital facial photo if issued between October 26, 2005 and October 26, 2006.
`PDF4Download: US VISIT & VWP Passport Requirements (DHS) (10/2005)

VWP -- "WB"
Visitors for Business are allowed to be admitted for the following types of activities:

- Participating in commercial business transactions which do not involve gainful employment in the U.S, for example, negotiating contracts or consulting with business associates You cannot receive a salary or wages from a U.S. source.
- Participating in scientific, educational, professional or business conventions, conferences or seminars;
- Conducting independent research;
- Appearing as a witness in a court trial.

VWP -- "WP"
Visitors for Pleasure are allowed to be admitted for the following types of activities:

- Visiting friends and relatives, touring or vacationing, visits for rest;
- Visits for medical treatment.
- Participating in conventions, conferences or convocation of fraternal or social organizations;
- Amateurs participating in sports, musical, and other events or contests, who will receive no money or other remuneration in return.

8October 26, 20058 US VISIT Digital Photo Passport Requirement for VWP Travelers (October 26, 2005) The DHS (Department of Homeland Security) implemented the "U.S. Visitor and Immigrant Status Indication Technology (US VISIT)" system -- the use of biometric identification for foreign nationals entering/departing the United States.  This system requires from all foreign nationals a minimum of two biometric identifiers, such as digital photographs and fingerprints.  More importantly, the US VISIT system accesses immigration information about an individual's past/present entry, departure, and stay, and access criminal history (such as DWI and shoplifting) and other information stored in the government's databases.  During the past 2 years, implementation of the US VISIT for entry and departure have been implemented. "Biometric Entry" Entry/Inspection Information Collection This system requires from a majority of foreign nationals a minimum of two biometric identifiers upon entry/admission to the United States at the POE (port-of-entry):  digital photographs and digital fingerprints. "Biometric Exit" Exit Information Collection "Biometric exit" is similar to the biometric entry/inspection system and requires the foreign national, at the time of departure, to provide a minimum of two biometric identifiers:  digital photographs and digital fingerprints.  Currently, three methods/types of "biometric exit" system are utilized/contemplated:  at a self-service "kiosk (ATM)", "handheld scanning by WSA (Work Station Attendants)," or a combination of both.  Regardless, it appears that printed receipts, obtained through the kiosk and/or WSA may be required to be presented at the gate before boarding. VWP (Visa Waiver Program) Travelers - Digital Photo Passport Requirement Travelers who are not required to obtain a "visa sticker" at a U.S. Embassy/Consulate, such as visitors using the VWP (Visa Waiver Program) are strictly required to undergo US VISIT entry/exit inspection as they are not subject to background checks that accompany the "visa sticker" issuance process at the U.S. Embassy/Consulate. As of June 26, 2005, VWP travelers are required to have MRP (machine-readable passports). As of October 26, 2005, VWP travelers are required to have MRP (machine-readable passports) that include a digital facial photo (unless passport is MRP and was issued prior to October 26, 2005). A VWP Traveler who do not meet the above requirements are required to obtain a "visa sticker" (such as the B-1/2) at the U.S. Embassy/Consulate and will not be able to enter the United States under the VWP.  (The following 27 countries are currently in the VWP:  Andorra, Austria, Australia, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom (including citizens with the unrestricted right of permanent abode in England, Scotland, Wales, Northern Ireland, the Channel Islands and the Isle of Man).) As of October 26, 2006, VWP travelers are required to have "e-Passports."  An e-/biometric-Passport has a "biometric" or a "biometric identifier" (an objective measurement of a physical characteristic of an individual) which, when captured in a database, can be used to verify identity or check against other entries in the database.  The best known biometric is the fingerprint, but others include facial recognition and iris scans.  The standard determined by the International Civil Aviation Organization (ICAO) utilizes facial recognition technology and stores it on a contactless chip embedded in the passport.  Exceptions will be allowed for individuals who have a MRP passport that was issued prior to October 26, 2005 and to those who have a MRP passport with a digital facial photo if issued between October 26, 2005 and October 26, 2006. `PDF4Download: US VISIT & VWP Passport Requirements (DHS) (10/2005) i8Gov. Site: US VISIT Site (10/2005) (DHS) i8Details/Topic: "US VISIT" System i8Details/Topic: Database of Foreign Nationals i8Related: Entry/Admission & Inadmissibility Bars.... 8November 1, 20048 "VWP (Visa Waiver) Travelers:  MRP-Passport Requirement The Department of Homeland Security (DHS) has implemented the "U.S. Visitor and Immigrant Status Indication Technology (US VISIT)" system, which is the biometric identification for foreign nationals entering/departing the United States.  This system requires from all foreign nationals a minimum of two biometric identifiers:  digital photographs and digital fingerprints.  The US VISIT system will access immigration information about an individual's past/present entry, departure, and stay, and access criminal history (such as DWI and shoplifting) and other information stored in the government's databases.  Depending on the information, the foreign national will be refused entry into the United States. Individuals entering the United States via the VWP (Visa Waiver Program) were initially waived the US VISIT entry/exit inspection system. The DHS announced that it will require US VISIT processing for VWP travelers starting on September 30, 2004, at air and sea ports of entry. Additionally, VWP visitors are required to possess a MRP-passport (Machine Readable Passport) as of June 26, 2005.  (A MRP-passport is not the same thing as having ICAO-biometric information in the passport. A machine-readable passport is one that can be "read" mechanically when swiped through a passport reader (it contains two lines of text on the bottom of the data page which can be read by the US CBP/DHS).  By October 26, 2005, ICAO-biometric information, in addition to the MRP-passport, will be required.) The DHS has announced that a 1-time waiver of the MRP-passport requirement may be granted to a visitor seeking VWP entry (see below PDF). The following 27 countries are currently in the VWP:  Andorra, Austria, Australia, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom. (For citizens with the unrestricted right of permanent abode in England, Scotland, Wales, Northern Ireland, the Channel Islands and the Isle of Man) Important:  A "biometric" or a "biometric identifier" is an objective measurement of a physical characteristic of an individual which, when captured in a database, can be used to verify identity or check against other entries in the database.  The best known biometric is the fingerprint, but others include facial recognition and iris scans.  A biometric passport will take a biometric (in the case of VWP, the standard determined by the International Civil Aviation Organization (ICAO), is facial recognition technology) and store it on a contactless chip embedded in the passport.  The Port-of-Entry (POE) inspector can scan the passport to obtain the passenger's bio-data.  The passport can thus be read in three ways: with the MRP reader, with the biometric scanner, and the old fashioned way with human eyes. The ICAO-biometric information in an MRP-passport is October 26, 2005. Also, by October 26, 2004, the US VISIT system will be incorporated into visa "sticker" applications at US Consulates/Embassies (meaning, digital fingerprinting and photographing at the time of applying for a visa "sticker"). When applying for the visa "sticker," the "IDENT" database will be accessed. By December 31, 2004, US VISIT will be implemented at the 50 most highly trafficked land ports of entry (see below for a list of the 50 most highly trafficked land ports of entry). `PDF4Download: US VISIT VWP: MRP-Passport Press Release (Oct./04) (DHS) `PDF4Download: US VISIT VWP:  VWP 1-Time MRP-Passport Waiver (Oct./04) (DHS) i8Details/Topic:"US VISIT" System 8August 23, 20048VWP ("No Visa") Travelers Who Have Overstayed  VWP (Visa Waiver Program) nationals may visit the United States temporarily, even without a visa "sticker."  While no change of status or no extension of stay is allowed, those individuals of participating VWP countries who have B-1 or B-2 intent, and who wish to enter the U.S. for less than three (3) months, can enter the U.S. without a visa "sticker" (issued by the Dept. of States).  As of October 26, 2004, VWP travelers must be in possession of a MRP (Machine-Readable Passport).  In the future, the traveler will also be required to have a MRP passport with biometric identifiers.  (Currently, while many may have a MRP passport, the biometric information is not included.  Therefore, as of September 30, 2004 US VISIT biometric entry inspection will be required for visitors entering the United States with the VWP (Visa Waiver Program) so that confirmation and collection of biometric information can be made). Currently, if a VWP traveler has overstayed a previous visit to the United States under the VWP program, the foreign national is subject to detention, handcuffing and is denied entry into the United States.  However, Commissioner Bonner of the US CBP (Customs and Border Protection) has announced that CBP officers will have discretion to grant no-risk travelers who overstayed under the VWP on a prior visit a one-time parole.  Commissioner Bonner stated:  "U.S. Customs and Border Protection is a law enforcement agency, but enforcement must always be tempered with common sense. If individuals are not a potential terrorist threat or criminal threat; nor are likely to contribute to the illegal population, and the overstay was short and inadvertent or for reasons beyond the applicant's control, CBP officers and supervisors have the authority to parole them into the U.S..."  CPB officers are now given discretion in the field to parole those who pose no risk for terrorism, criminality, or those who will become economic migrants. `PDF4Download: VWP Overstay / One-Time Parole (08/04) (DHS/US CBP)

8June 23, 20048Visa "Sticker" Issuance Concerns As of September 30, 2004 US VISIT biometric entry inspection will be required for visitors entering the United States with the VWP (Visa Waiver Program), unless the VWP traveler has a MRP (machine-readable passport) with ICAO "bio data" (ICAO - International Civil Aviation Organization).

8September 25, 20038 MRP (machine-readable passport) Requirement Postponed for 21 Countries The Dept. of State (with the Dept. of Homeland Security) has officially announced the postponement of the MRP requirement (see below) for "visa waiver (VWP)" travelers for nationals of 21 countries:  Australia, Austria, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Monaco, Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Spain, Sweden, Switzerland, and the United Kingdom. Nationals of other countries wishing to visit the U.S. must either have a MRP for "visa waiver (VWP)" entry (if qualifying country), or a visa.

8June 16, 20038 Entry & Departure:  Machine-Readable Passport Required for Visa Waiver Program (VWP) Under the Visa Waiver Program (VWP), the citizens of certain countries may visit the U.S. for business or pleasure for up to 90 days without a visa "sticker."  Effective October 01, 2003, all travelers who wish to travel to the U.S. under the Visa Waiver Program (VWP) must possess a machine-readable passport (MRP) issued by their government and present it at the U.S. port of entry. Those who do not possess such a passport must apply for a nonimmigrant visa (such as an B-1/2) at the U.S. Embassy/Consulate (Dept. of State) prior to traveling to the United States. Visa Waiver Program (VWP) countries:  Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, the United Kingdom and Uruguay. (The list changes occasionally; please check the Department of State website for updated lists.) Also:  If you enter the U.S. under this program, you cannot extend your stay past 90 days except for very limited circumstances, and you cannot change to another nonimmigrant status while in the United States. In addition, you cannot adjust status unless an immigrant petition is based on an immediate relative relationship. Therefore, if you are a citizen of a qualified country but plan to stay past 90 days or to change your status in the U.S, you may want to consider obtaining a nonimmigrant visa such as B-1 or B-2. Also:  Citizens of Belgium who wish to travel to the U.S. under the Visa Waiver Program must possess a machine-readable passport issued by the Government of Belgium effective May 15, 2003. Otherwise, they are required to apply for a nonimmigrant visa prior to traveling to the United States.

...
...
Strategic Difference:  B-1/B-2 and Visa Waiver Program
The B-1 or B-2 allows individuals to extend the stay in the U.S. (by filing an extension) or to change status (to an F-1, L-1, etc.).  VWP holders, because it is not a visa, cannot file an extension nor change status.  In the past, individuals seeking to attend school, but could not apply for an F-1 student visa, entered the U.S. on a B visa, first.  Business people who wanted to start a business also entered the U.S. on a B visa to begin initial preparations.
...
...
INSPASS (INS Passenger Accelerated Service System): This is NOT a visa (no change of status, no extension of stay allowed), but is issued for those individuals with B-1 (not B-2), E-1, E-2, L-1 or business visitor status under the VWP, and who travel to the U.S. three or more times a year.
Note:
Must apply form I-833.

For individuals to attend school (which can issue I-20 Form).  Can NOT attend public elementary school or publicly funded adult education program.  Public secondary school is exempted, but only under specific guidelines.  Public post-secondary schools are permitted if school is charging non-resident tuition.

Note:
Must have financial support and intent to depart.

Employment:
- On-Campus Employment
- Off-Campus Employment for Severe Economic Hardship
- Internship
- Practical Training (P/T)

- Curricular P/T:  For work/study, internship, cooperative education.  Not applicable for English language training
- Optional P/T:  Normally used after graduation; maximum of twelve (12) months.  Must complete within fourteen (14) months of graduation.

If individual leaves U.S. for six (6) months thereafter and re-enters the U.S. under F-1 pursuant to another program*, optional P/T may once again be obtained (*under certain circumstances).

For individuals to attend "vocational" school (which can issue I-20M-N Form,) i.e., junior/community college, business/vocational school, etc.  Can NOT change educational objectives.

Note:
Cannot change to H-1B nonimmigrant visa, if applicant relying on education from M nonimmigrant visa.

Note:
Must have financial support and intent to depart.

Employment:
Practical training after completion of study, not exceeding six (6) months.

J-1 visa is available to people who enter the United States to participate in an approved educational or cultural program.
The J-1 category may be used by a wide range of nonimmigrants including students, short-term scholars, trainees, teachers, professors, research scholars, foreign physicians, camp counselors, au pairs, and international and government visitors.
The J-1 exchange visitor program is highly regulated and overseen by the Department of State (DOS).
In general, J-1 exchange visitor must:  a) have a residence abroad which he/she has no intention of abandoning, and b) be coming to the U.S. temporarily to participate in a program designated by the DOS for the purpose of teaching, instructing, lecturing, studying, researching, consulting or receiving training.
Additionally, some J-1 visas have a two-year home country residency requirement.

Note:
Must have financial support and intent to depart.  Must have sufficient medical insurance for accident/illness.

Note:
Certain J nonimmigrant visa holders must return to his/her home country for two (2) years, and can not change or adjust status (exceptions may be possible if this requirement is waived).

Family:
Spouse/Child may receive employment authorization in certain circumstances.

Employment:
- On-Campus Employment,
- Off-Campus Employment for Severe Economic Hardship,
- Internship,
- Practical (Academic) Training
 

8November 7, 20038 Limitation of J-1 Nonimmigrant Visa (Single Program, 18 months) The J-1 nonimmigrant visa is generally for individuals (student, trainee, professor, physician, etc.) to participate in an "exchange visitor program."  J-1 visa is available to people who enter the United States to participate in an approved educational or cultural program.  The J-1 exchange visitor program is highly regulated and overseen by the Department of State (DOS); the DOS has confirmed that foreign nationals may not participate in a second J-1 training program under the Exchange Visitor Program regulations -- foreign nationals' participation in the Exchange Visitor Program is limited to a single consecutive J-1 training program, which can be of any length but may not exceed 18 months. The regulations do not allow foreign nationals to participate in multiple programs even if a cumulative period of the programs does not exceed 18 months.

The E visa is based on a treaty between the applicant's (individual and/or company) home country (nationality) and the United States, to engage in trade or investment (providing goods and/or services).
In general, the E-1 is for "treaty-traders" and the E-2 for "treaty-investors."
Normally, the applicant will obtain the E visa to trade or invest in the United States, but employees of businesses in the United States that qualify under the E requirements can also obtain E status to work.
(This is a nonimmigrant visa, and it is NOT the "immigrant investor visa" that requests for permanent residency "green card" status.  The E visa can be approved for up to five years initially, with indefinite extensions.)

Family:
Spouse receives employment authorization.

E-1 Treaty-Trader:
The trade must be "substantial trade which in international in scope principally between the U.S. and the foreign state of which s/he is a national."  Trade can include the following:  goods, services, international banking, transportation, communications, accounting, design, consulting, tourism, technology transfer, etc.
Substantial means at least 50% of the trade is between the United States and the foreign country of the nationality of the business.  The amount of trade is not necessarily determined on the number of trading activity, but may be the "volume" and "amount" of trade.  It must also be an active and continuing trade.  (For example, a one-time substantial trade may be considered insufficient.)

E-2 Treaty-Investor:
An "active" investment is required into a "bona fide" enterprise, and a mere transfer of funds into a bank account is insufficient (however, the investment capital can be protected while the application is pending).  Notwithstanding any such protection, it must be committed and subject to loss, and the source of the funds must be made known.  The amount must be substantial and sufficient, in relation to the nature of the enterprise, to develop, continue, or expand a business that is not "marginal."  "Substantial" investment varies, from $50,000.00 to $300,000.00.  Service enterprises are considered to require less investment, but the investment amount and active enterprise must not merely support the visa applicant and his/her family members in the United States.

For individuals who will be a trainee working/training primarily to receive instruction and not for gainful employment.  Training should not be available in trainee's home country.  Need to provide detailed information in regard to training program, i.e., description of the type of training and supervision provided; training program's structure (schedule, evaluation, etc.), etc.  If high-salary, may be detrimental to application.

Note:
Must have financial support and intent to depart.

Note:
Limited for two (2) years, and if two (2) years utilized, must depart U.S. for six (6) months.  Can not use work experience gained under H-3 for H-1B purposes.

Note:
H-3 Trainee can NOT apply for employment-based immigrant "green card" visa for the same employer for the same job.

Employment:
Primarily for training, therefore, employment must be incidental and limited in scope.

H-2A: Temporary workers performing "agricultural labor or services ... of a temporary or seasonal nature"

H-2B: Temporary workers performing "other temporary services or labor."

Employers:
1. Employer must demonstrate that there are NO U.S. / Permanent Resident "Green Card" Holder workers who are capable of performing  such service/labor in the U.S.
2.   The job/position offered must be temporary.

(1)  To determine whether job is temporary, the US CIS does not look to the nature of the  duties, but rather, to the nature of the employer's immediate and temporary NEED.
(2)  However, continuos temporary need is equal to a permanent need -- which will prohibit the approval.
(3)  Generally, applications are for one (1) year or less.

Employees:
1. Applicant must be coming temporarily to the U.S.
2. Applicant must be performing temporary services/labor.
3. Not available to doctors.

Note:
The process entails filing a "temporary" labor certification application with the Department of Labor.
This is different from the relatively quick labor CONDITION application for the H-1B application.
This is also different from the "permanent" labor certification application for some of the Employment Based Immigrant "Green Card" application.
However, similar to the "permanent" labor certification application, a showing must be made (i.e., advertisement) that there are no available U.S. citizens or "green holders" who can fulfill the job.

Note:
Limitations of the employment period apply -- prior H/L visa holders for more than 3 years can not obtain the H-2B unless he/she has been out of the U.S. for 6 months.

The H-1B visa petition is filed by a U.S. employer who seeks the temporary services of persons whose "professional/specialized" work requires a bachelors or higher degree (or equivalent combination of education and work experience) in a specific occupational specialty.  It is usually is granted initially for three (3) years and extensions can be obtained, for up to a total of six (6) years.

Employers:
Employers may be organizations, companies, individuals, etc., (with Federal Tax ID numbers).  Start-up companies may be possible if documentation to support need for professionals and capacity to pay employee.  Employers may be able to function in an "agent/representative" capacity.  Multiple work sites may be possible.

Employees:
Some occupations may require evaluations to determine where it can be considered as "professional/specialist."
If no degree, sufficient work experience or combination of education and work experience, may be possible to use, based on obtaining appropriate evaluations.

Procedure:
Three steps are normally involved:
 1. Determining The Appropriate "Job Title," "Job Description" and "Wage Rate."
 2. Filing The Labor Condition Application (LCA).
 3. Filing The H-1B Petition.

Employment:
Employment may be part-time; possible to have concurrent employment (i.e., more than one employer.)
After six (6) years of H-1B, if individual leaves the U.S. for minimum of one (1) year, possible to apply for H-1B again (for a total of six years).

On September 3, 2003, President Bush signed into law the United States-Chile Free Trade Agreement Implementation Act (Pub. L. No. 108-77) and the United States-Singapore Free Trade Agreement Implementation Act (Pub. L. No. 108-78). Under the immigration provisions of the Acts, a new H-1B1 nonimmigrant category was created that provides 1,400 visas annually for Chileans and 5,400 visas annually for Singaporeans.  These provisions become effective on January 1, 2004.

There are a number of important differences between the Chile and Singapore Free Trade Agreements and the existing H-1B nonimmigrant specialty occupation worker category:

1. There is no petition requirement with the CIS on behalf of a Chilean or Singaporean desiring free trade nonimmigrant (H-1B1) status.

2. Unlike the H-1B category, which generally requires possession of a relevant professional license as a condition to admission, the H-1B1 category does not require such licensure as a prerequisite to admission as an H-1B1 nonimmigrant.

3. Unlike H-1B specialty occupation workers, who may be admitted for up to three years initially, with extensions available normally up to six years, professionals from Chile and Singapore may be admitted initially for a maximum of one-year, and they may extend their H-1B1 stay an indefinite number of times, in one-year increments, as long as they continue to demonstrate that they do not intend to remain or work in the United States permanently.

For individuals entering the U.S. to work for a U.S. subsidiary/affiliate of a "parent" company in the following capacity:  managerial (L-1A) or executive (L-1A) or specialized skill (L-1B).  The U.S. subsidiary/affiliate may be a start-up company.

Employers:
Must establish affiliation to "parent" company, i.e., majority ownership of both companies.  Start-up companies will limit the employee's initial L nonimmigrant period to one (1) year.  There is no limitation on size of company.  However, both parent and U.S. subsidiary/affiliate must be actively engaged in business.

Employees:
Does not need to have degree per se, but must establish qualification for managerial, executive, or specialized skill capacity).  Also, the individual must have been employed continuously at "parent" company for at least one (1) year within the past three (3) years.

Family:
Spouse receives employment authorization.

For individuals who have "extraordinary ability in the science, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim."  In the arts, "extraordinary" is defined as "exceptional" ability.  The intended employee does not need to have a degree -- but sufficient documents to establish his/her merit and ability is necessary (i.e., published materials by or about individual, letters of support, affiliations with organizations, etc.).  Artists should also see the P nonimmigrant visa category.

Employers:
The employer may be functioning in an "agent/representative" capacity.

Flexibility:
For those occupations not easily classifiable as "professional/specialized," or for those occupations which do not normally require degrees, and for those individuals who have stellar professional experience but lack a degree, the O-1 nonimmigrant visa may be a possible option.  Also, while the standard of "extraordinary ability" is indeed high, a careful review of the exact field and work experience may allow individuals to utilize this category.  As an extreme example, someone may be considered extraordinary as a "Japanese Hip Hop Rap Singer" but not as an extraordinary "Pop Singer."  (In this instance, the latter would be much more difficult to prove -- the field of "popular singer" may be too broad.)

Procedure:
1.  Obtain documentation, letters of support, and evaluations if necessary.
2.  Submit petition copy for a "consultation/advisory opinion" to the local labor union.
3.  Submit to the US CIS the "consultation/advisory opinion" and petition package.

For an individual who performs with or is an essential/integral member of a "group" (minimum of 2 members) which has garnered international recognition.  Normally necessary to establish minimum 1 year relationship with the group.  Group may be in the field of entertainment, i.e., performance, musical, etc.  Can not file individually but as a "group member."  Enters the U.S. for the group to provide its services.  Requires U.S. petitioner (agent/representative).  Itinerary/schedule needed.  Documentation to establish relationship and group activity (and repute) necessary.

For an individual (entertainer, artist, musician) in a culturally unique field of endeavor.  He/she does not have to be part of a group.  Enters the U.S. to provide his/her services (to perform, teach or coach) which is culturally unique.  Requires U.S. petitioner (agent/representative). Itinerary/schedule needed. Documentation to establish "culturally unique" activity necessary.

Individuals who are "representatives of the media" (of a foreign press, radio, film or media agency).  Normally for purposes which are not "entertainment" oriented.  Need showing of affiliation (documentation) to foreign sponsor (foreign media organization, association, source, etc.).  There must be reciprocity between countries allowing "I" exchange.

Note:
May extend indefinitely.

Family:
Spouse/Child working without employment does not violate status.

Employment:
May be employed by U.S. affiliate of foreign sponsor under certain circumstances.

8May 30, 20048 Use of B-1 and/or VWP in Lieu of "I" Media Representative Nonimmigrant Visa The "I" Nonimmigrant Visa is for individuals who are "representatives of the media" (of a foreign press, radio, film or media agency), normally for purposes that are not  "entertainment" oriented.  There is a need to show affiliation (documentation) to foreign sponsor (foreign media organization, association, source, etc.), and a direct application with the U.S. Embassy/Consulate (overseas) is possible.  (No need to obtain prior approval from the US CIS in the United States, if the applicant is overseas).  The US CBP (Customs and Border Protection) announced in May of 2004 that representatives of media not in possession of an "I" visa may enter the United States with a B-1 nonimmigrant visa or use the VWP (Visa Waiver Program) [if the individual is eligible for VWP].  However, the law explicitly prohibits the use of the B-1 in lieu of the "I" visa, and the DOS (Department of State) issued a reminder in May of 2004.  Nonetheless, if necessary, it is not impossible to enter the U.S. with a B-1 or VWP if an "I" visa is not in possession. Note:  However, such entry is not recommended, and if undertaken, the individual will be allowed to do so only for one-time, and subsequent admission to the U.S. will require possession of a valid "I" visa.  (Applicants seeking to enter by using the B-1 and/or the VWP will have to establish all the requirements of an 'I" visa at the POE [port-of-entry].) `PDF4Download: "Use of B-1 and/or VWP in Lieu of I Visa" Memo (US CBP/DHS) (05/2004)

Provisions of NAFTA and the Immigration and Nationality Act (INA) allow citizens of Canada and Mexico who are qualified in specific professions to temporarily enter the U.S. under TN nonimmigrant status, and their dependent family members are granted TD nonimmigrant status.  (The requirements for Mexican TN professionals differ from those of Canadian TN professionals.)  While similar to the H-1B "Specialist/Professional" Nonimmigrant Visa, in general, the procedure for filing the application is less burdensome.  Additionally, unlike the H-1B, there is no limitation of stay (no "status" limitation).  However, the validity is limited to 1-year periods, and TN (TD) holders are subject to "nonimmigrant intent."  (While some nonimmigrant visas have 'dual intent' -- allowing for nonimmigrant AND immigrant intent to be held by the individual at the same time, such as the 'H' and 'L' visas -- the TN is "nonimmigrant intent," only.  This means that the TN holder cannot file/petition for an immigrant "green card" visa.  In this case, many change to the 'H' nonimmigrant visa, first.)  Furthermore, unlike the H-1B, there is no cap on the number of Canadian professionals admitted under TN status (Mexican nationals have a 5,500 annual cap until the end of 2003).

Note:  Beginning on January 1, 2004, Mexican TN procedures will change.  Mexican nationals seeking TN status will apply at a U.S. consulate/embassy in Mexico and will not need prior approval of Form I-129 or LCA (labor condition application ETA-9035).  The annual cap of 5,500 will also be eliminated.  (The Department of Homeland Security (DHS) plans to publish an interim rule that will provide information on the new procedures.)  (Canadian nationals will continue to benefit from being able to apply directly at the port-of-entry (into the United States).)

Note: Note that fees, forms and filing procedures change frequently.
 

8October 26, 20058 US CIS Announces Fee Increase (October 26, 2005)... The US CIS announced a revised fee structure for immigration benefits applications.  The new fee structure becomes effective on October 26, 2005 and will add an average of $10.00 to each application and petition in order to account for inflation. `PDF4Download: Filing Fee Increase: Press Release and Chart (DHS/USCIS, FR) (09/26/2005)..

Recommended U.S. Immigration-related Web Sites

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