NONIMMIGRANT VISAS
VISITOR FOR BUSINESS/PLEASURE (B)
This visa is for persons desiring to enter
the US temporarily for business or pleasure.
TREATY TRADER (E1)
This E category is designated for persons
engaged in international trade between the U.S. and the
aliens? countries of nationality.
TREATY INVESTOR (E2)
This E category is designated for persons
engaged in investment between the U.S. and the aliens'
countries of nationality.
STUDENT (F1)
This category includes academic students in
colleges, universities, seminaries, conservatories, academic
high schools, other academic institutions, and in language
training.
TRAINING/STUDENT (J1)
This visa category is for persons coming to
participate in exchange visitor programs in the United States.
FIANCÉE (K1)
This visa is for persons coming to the
United States to marry U.S. citizens and reside in the U.S.
EXTRAORDINARY ABILITY
The O-1 Visa is for people for persons of
"extraordinary" ability in the sciences, arts, education,
business or athletics.
ATHLETES & ENTERTAINERS
The P-1 visa is for members of
entertainment groups, individual athletes, and members of
athletic teams.
ARTISTIC EXCHANGE
The P-2 visa is for entertainers that are a
part of reciprocal international exchanges.
CULTURALLY UNIQUE ARTISTS
The P-3 visa is for performers in
culturally unique programs.
CULTURAL EXCHANGE
The Q-1 classification applies to
participants in an international cultural exchange program for
the purpose of providing practical training, employment, and
to share the history, culture, and traditions of the alien's
home country.
RELIGIOUS WORKER
The R-1 classification applies to a
religious worker.
VISA WAIVER PROGRAM
The Visa Waiver Program (VWP) enables
citizens of participating countries to travel to the U.S. for
tourism or business for 90 days or less without obtaining a
U.S. visa.
IMMIGRATION INSPECTION AT PORT OF ENTRY
All persons arriving at a port-of-entry to
the United States are inspected by officials of the U.S.
Government. This information sheet will discuss the
Immigration Inspection.
CHANGE OF
NONIMMIGRANT STATUS
USCIS allows you to change your status in
certain cases. You will be violating U.S. immigration law and
may be subject to deportation if you do not change you status
when it is required.
You Must Qualify to Change Your Nonimmigrant
Status.
You may not change your status if you were
admitted on the following visas categories:
Visa Waiver Pilot Program
C - Alien in Transit or without a visa
D - A crewman
K - Fiancé of U.S.
citizen
S - An informant
If you were admitted on a J visa for
graduate medical training you cannot apply for a change of
status unless you receive a special waiver.
If you are on an M visa, you may not change
to an F or H.
If you are the spouse or child of someone
in the following visa categories, you do not have to apply to
change of status to attend school in the USA:
A - Diplomatic
E - International Trade or Investors
F - Academic Students and their families
G - Representatives of International Organizations
H - Temporary Workers
I - Representatives of foreign media and their families
J - Exchange Visitors
L - Intracompany Transfers
M - Vocational Students and their families
Have your employer file Form I-129 (Change
of Status) at the USCIS Regional Service Center with
jurisdiction over your case if you are trying to change to one
of the following categories: (If your employer files the
petition, make sure your spouse and children file Form I-539):
E - International Trade and Investors
H - Temporary Workers
L - Intracompany Transferees
O - Aliens of Extraordinary Ability
P - Entertainers and Athletes
Q - Participants in International Exchange Programs
R - Religious Workers
TN - Canadians and Mexicans Under NAFTA
If you are in the following nonimmigrant
categories, you should carefully read and complete USCIS Form
I-539 (Application to Extend/Change Nonimmigrant Status) and
submit any required supporting documents:
A - Diplomatic and government officials
B - Temporary visitors and business or pleasure
F - Academic students and their families
G - Representatives to international organizations and
their families
I - Representatives of Foreign Media
J - Exchange Visitors and their families
M - Vocational Students and their families
N - Parents and children of people granted special
immigrant status because of working for an international
organization
The application and correct fee should be
mailed to the USCIS Service Center that serves the area where
you are temporarily staying. If your nonimmigrant category is
work-related, then the application and correct fee should be
mailed to the USCIS Service Center that serves the area where
you will work.
HOW DOES MY SPOUSE AND CHILD APPLY TO CHANGE THEIR
NONIMMIGRANT STATUS?
If your employer files USCIS Form I-129
(Petition for Alien Worker) for you, then your spouse and
child must carefully read and complete USCIS Form I-539
(Application to Extend/Change Nonimmigrant Status) and submit
any required supporting documents to change to a new
nonimmigrant category. It is best to submit both forms at the
same time.
You may include your spouse and any
unmarried children under the age of 21 in your USCIS Form
I-539 application if you are all in the same nonimmigrant
category, or if your spouse or children were given derivative
nonimmigrant status. Derivative nonimmigrant status means that
your spouse and children were given nonimmigrant visas based
on your nonimmigrant status. For instance, if a student is
given an F-1 "Academic Student" visa, then the spouse and
child are given F-2 "Spouse and Child of an Academic Student"
visas.
WHEN SHOULD I APPLY?
We recommend that you apply as soon as you
determine that you need to change to a different nonimmigrant
category. Please note, you must apply to change your
nonimmigrant category before you current nonimmigrant status
expires. Also, do not start new employment without first being
approved for your change of status. The date your status
expires can be found in the lower right-hand corner of your
Form I-94 (Arrival-Departure Record). You should have received
a Form I-94 when you legally entered the United States.
The USCIS is more likely to change your status if you are
in status with your current visa. If you are late filing, then
you must prove that:
The delay was due to extraordinary circumstances beyond
your control;
The delay was of reasonable length;
You have not done anything to violate your nonimmigrant
status;
You are still a nonimmigrant; and,
You are not in deportation proceedings.
Adjustment of Status
Adjustment of status is a process that permits certain
people in the United States to apply for lawful permanent
resident ("green card") status without having to go abroad.
Not everyone qualifies for this procedure. Those that do
must apply with an office of the USCIS and all further
processing will be done by that agency.
ELIGIBILITY
The status of an alien who was inspected
and admitted or paroled into the United States (See,
Arrival-Departure Record, Form I-94) may be adjusted to that
of an alien lawfully admitted for permanent residence if:
the alien makes an application for such adjustment; the
alien is eligible to receive an immigrant visa and is
admissible to the United States for permanent residence;
and, an immigrant visa is immediately available to him at
the time his application is filed.
The first thing to understand about
adjustment of status is that not everyone is eligible. The
following classes of people shall not receive adjustment of
status:
(1) alien crewmen;
(2) anyone (other than "immediate relatives" as that
term is specially defined), who continues in or accepts
unauthorized employment prior to filing an application
for adjustment of status or who is in unlawful
immigration status on the date of filing the application
for adjustment of status or who has failed (other than
through no fault of his own or for technical reasons) to
maintain continuously a lawful status since entry into
the United States;
(3) any alien admitted in transit without visa under
section 212(d)(4)(C);
(4) an alien (other than an immediate relative) who
was admitted as a non-immigrant visitor under the visa
waiver program;
(5) aliens who are deportable under section;
(6) any alien who seeks adjustment of status to that
of an immigrant through an employment based preference
and is not in a lawful non-immigrant status; or
(7) any alien who was employed while the alien was an
unauthorized alien, or who has otherwise violated the
terms of a nonimmigrant visa.
DENIALS
The second thing to understand about AOS
is that it is discretionary, not mandatory. It is possible
for a person who is technically eligible for immigrant
status to nonetheless be denied adjustment of status in the
exercise of discretion. The most common instances of such
discretionary denials involve cases where the applicant
abused the nonimmigrant process.
For example, if a person applies for
admission into a school or for a change in nonimmigrant
status within 30 days of entry, they are presumed to have
acted in bad faith. That is, they had the preconceived
intent to make the change and they used an easier to obtain
visa in order to evade the normal screening process abroad
for the visa they really wanted.
If the application occurs between 30 and
60 days after entry, no presumption is made, but there is a
strong suspicion that the person may have acted in bad
faith. The case will be scrutinized carefully. If the
application occurs more than 60 days after entry, the
presumption is that the applicant acted in good faith. Both
the USCIS and the State Department reserve the right to
re-examine such cases, however, if there is any additional
evidence of wrongdoing. If an AOS applicant has anything in
his or her past visa history that suggests that he or she
may have abused the visa process, or otherwise tried to take
shortcuts, the USCIS has made it clear that they can and
will deny such adjustment applications in the exercise of
discretion. Discretionary AOS refusals are not subject to
administrative review. While federal court review is
theoretically possible, few judges are willing to attempt to
substitute their judgment for that of USCIS officers in the
absence of gross abuse of discretion.
ADVANTAGES OF ADJUSTMENT OF STATUS
First, it does not require that the
applicant go abroad at any time prior to the grant of lawful
permanent resident status. This is vitally important to
those applicants who have accumulated more than 180 days in
"unlawful status" and would otherwise be subject to a three
year exclusion upon their departure from the United States.
For such people, who are also eligible to file for
adjustment of status under the "grandfathering" provision of
Section 245(i) of the Immigration and Nationality Act, this
is their only real option. Were they to go abroad to apply
for an immigrant visa, they would be subject to the three
year exclusion.
The second principal advantage is that an
applicant who requires a waiver of exclusion may remain in
the United States while the waiver is being processed. As
only a tiny handful of applicants ever require waivers, this
is not of great significance to the average applicant. It
is, nonetheless, a significant advantage to those who do
require waivers.
DISADVANTAGES OF ADJUSTMENT OF STATUS
There are several significant
disadvantages to applying for AOS. First, there is the delay
involved in AOS processing. A person wishing to apply for
AOS today should be prepared to wait up to five years for an
adjudication. During this time, employer sponsored
applicants may not leave their employers or even accept
promotions.
A second disadvantage is the
discretionary decision making authority of USCIS officers.
Where one officer may see nothing, another may see
preconceived intent or presumed fraud. In such case, the
officer has the discretionary authority to deny the
adjustment of status application. This is very similar to
the authority of consular officers deciding nonimmigrant
visas (consular officers do not have similar authority when
they decide immigrant visas).
A third and final disadvantage to AOS
processing involves the legal grounds for denying an
application. Anything that would result in a denial of an
application for an immigrant visa at a consular post abroad
automatically requires a denial of an application for AOS in
the United States. In addition, there are several
independent grounds that require the denial of an AOS
application, but not the denial of a consular immigrant visa
application.
One of the greatest and most persistent
myths about AOS processing is the belief that if an AOS
application is denied, the applicant can easily return to
non-immigrant status and go on as if the AOS application had
never been made. This is simply not true. If a person is
denied AOS because of serious personal misconduct, they may
well be taken into custody immediately and held until they
can be physically removed. Even when this is not the case,
and a denied applicant is not taken into custody, he or she
must leave the United States within a very short period of
time and will find it extremely difficult to ever return. It
is the extremely rare case in which a denied AOS applicant
is allowed to remain in the U.S. or easily re-enter.
DEPENDANTS
The person who qualifies as an immigrant
is know as the principal applicant. All qualifying
dependants of the principal applicant are entitled to apply
for AOS as well. A qualifying dependant is defined as the
spouse or unmarried child (under the age of 21) of the
principal applicant.
FILING
For those who are eligible, and who wish
to use this procedure, AOS involves filing a package with
the USCIS. Employment based applicants must file by mail
with the USCIS regional service center having jurisdiction
over them. Family based applicants must file with the USCIS
Lockbox in Chicago, IL.
EMPLOYMENT AUTHORIZATION
Applicants for adjustment of status may
also ask for an Employment Authorization Document ("EAD").
When approved and sent to the applicant, an EAD permits the
holder to work in the US. EAD cards are valid for a period
of one year, but may be renewed as many times as necessary
during the time that the applicant's AOS application is
pending.
ADVANCE PAROLE
Some applicants for AOS may also apply
for and receive advance parole (permission to travel
abroad). The law provides that, with limited exceptions, any
AOS applicant who departs from the United States without
having already been granted advance parole is deemed to have
abandoned his or her AOS application. Some adjustment
applicants (holders of valid H or L visas) do not require
advance parole to travel abroad. Advance parole is granted
for periods of one year at a time and may be renewed as many
times as necessary during the time the adjustment of status
application is pending. Current USCIS policy provides that
all adjustment applicants who are eligible for advance
parole shall be granted this benefit, irrespective of their
reason for traveling abroad.
