Nonimmigrants : Immigration Outline

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Definition: Anyone wishing to come to U.S. presumed immigrant (§ 214(b)).  “Imm” defined as anyone except listed categories of non-imms in § 101(a)(15).

Exs: Foreign gov officials (A); visitors for business/pleasure (B-1, B-2); students (F, M); Int’l reps (G); Cit fiancés (K).

32 mill nonimm admissions in 2001; 90% visitors for business and pleasure (½ don’t need visas – special countries).

Must show bona fide residence elsewhere and intent to return (desire to stay legally doesn’t preclude this).

Three paths: Apply @ consulate; come from a waived country; adjust from another nonimm visa while here.

Definitions and Basics

A nonimmigrant is a noncitizen who seeks entry to the U.S. for a specific purpose to be accomplished during a temporary stay.

Most important requirement in many categories is that the noncitizen “has a residence in a foreign country which he has no intention of abandoning.”

However, courts have held that “dual intent” is acceptable if it’s the intent to stay in the U.S. permanently if lawful means arise.

Nonimmigrant overstays are about 1/3 of the undocumented population.

No fixed limits on nonimmigrant admissions, except H-1B and H-2B categories.

Major Nonimmigrant Visa Categories – INA § 101(a)(15)

A – Foreign government officials

B – Visitor for business (B-1) or pleasure (B-2). Constitutes almost 90% of all nonimmigrant admissions.

Most B-1 visitors enter under the visa waiver program. B-1s may NOT enter to perform skilled or unskilled labor – it should be conference and negotiation. This can be a confusing line (what about drawing up a contract?)

The point is that B visas should not be used as an easier alternative to H visas.

C – Transit aliens (passing through the country)

D – Alien crewmen

E – Treaty traders (E-1) and investors (E-2)

F and M- Students and their spouses and children. Second biggest category. M is for vocational studies.

H – Temporary workers and trainees, spouses and children

H-2A: Temporary agricultural workers. Requires labor certification, but you don’t have to recruit U.S. workers as hard as you’re going to recruit foreign workers. Lots of wage and working condition problems with these workers.

H-2B:  Temp workers for temp jobs. Available only if unemployed persons capable of performing the job can’t be found in the U.S. (Landscaping is a common job.) One-year admission, 2 extensions possible. 66,000 a year max.

H-1B: Temp workers for a “specialty occupation.” § 214(i). Requires equivalent of U.S. bachelor’s degree or higher in the specialty. Instead of full labor certification, requires an “attestation” by the employer about conditions and pay. Limit of 65,000 a year (was 195K), universities and nonprofits exempt.

K – Fiances of U.S. citizens (“sweetheart” visa)

L – Intracompany transfers, spouses and children

T – Victims of trafficking, spouses and children. Capped at 5K.

U – Victims of criminal activity, spouses and children. Capped at 10K. T and U visas are eligible to adjust to permanent residency after 3 years if they continue cooperation with law enforcement.