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U.S. Visas: An Overview

 
World Champion Gymnast Natalia Kalinina
Nonimmigrant Visas

     
Nonimmigrant visas are labeled in alphanumeric combinations (e.g. B-1, B-2, F-1, F-2, H-1B, etc.). Each visa classification represents a particular purpose of use. For example, a student typically is given an F-1 visa while his or her spouse would receive an F-2 visa. Only a limited number of visa categories apply to people in the arts, entertainment or sports fields. These are the “O” and “P” visa categories, although the H-1B category may often apply as well.

  The O-1 classification is given to the principal applicant (“beneficiary”) who qualifies as an “alien of extraordinary ability” with unique or special abilities in education, business, athletics, the sciences or the arts. O-1 status will be granted for the duration of the event (for which supporting evidence must be provided) but may not exceed three years. Extensions of stay in O-1 status may be granted in increments of one year to complete the same event or activity for which the beneficiary was initially admitted.

  The O-2 classification is given to individuals accompanying the principal O-1 visa holder in order to assist in the event or performance (such as stage managers, sound engineers, technician, wardrobe assistants, etc.). The O-2 visa holder must be an “integral part” of the performance and must have “critical skills and experience with the O-1 artist or athlete.” The O-2 visa holder may not work separate and apart from the O-1 principal.

  O-3 classification is reserved for immediate family members of O-1 and O-2 visa holders.

  P-1 classification generally is made available to internationally known athletes, individually or as part of a group or team, and entertainment groups. It is used by individuals coming to perform at specific athletic competitions at an internationally recognized level of performance or to perform with, or as an integral part of, the performance of an entertainment group that has been recognized internationally as being outstanding in the discipline for a sustained and substantial period of time, who has had a sustained and substantial relationship with the entire group (ordinarily for at least 1 year) and who provides functions integral to the performance of the group.

  P-2 classification is for performing artists visiting in the U.S. under a reciprocal exchange program.

  P-3 classification applies to an alien artist or entertainer who is coming temporarily to the U.S., either individually or as part of a group, to perform, teach, or coach under a commercial or noncommercial program that is culturally unique.

  P-1S, P-2S, and P-3S classifications are for accompanying support personnel.

  P-4 classification is for dependents of aliens in the foregoing categories.

P status is granted for the duration of the event (for which supporting evidence must be provided) but may not exceed one year. Extensions of stay may be obtained in certain circumstances.

  H-1B classification, in part, is for individuals who are coming to the U.S. to perform services in a “specialty occupation” (a professional position requiring a U.S. bachelor’s degree or foreign equivalent) or as a fashion model of distinguished merit and ability. H-1B status is valid for an initial period of three years and may be extended for an additional three years for a total maximum stay in H-1B status of six years.


Immigrant Visas (U.S. Lawful Permanent Residence / “Green Card”)

     There are many different methods for obtaining lawful permanent residence status in the United States. Acquisition of permanent residence usually depends upon an ability to demonstrate an offer of permanent employment from a U.S. employer or a relationship to a U.S. citizen or permanent resident.
There are essentially five employment-based immigrant categories. Only three of the categories will be discussed here.

  First Preference (“Priority Worker) classification is divided into three categories: (1) individuals with extraordinary ability; (2) outstanding professors and researchers; (3) certain multinational executives and managers. Individuals of extraordinary ability applying in the first sub-category (EB-11) must demonstrate that they are at the very top of their field in the sciences, arts, business, education or athletics. They are not required to obtain Department of Labor (“DOL”) approval of an Application for Alien Labor Certification as is required in some of the other categories, but must prove an intent to continue work in the area of expertise. Self-sponsorship (i.e. petitioning for oneself without a petitioner or employer) is acceptable. Outstanding professors and researchers (EB-12) must demonstrate that they are recognized internationally as outstanding in the academic field specified in the petition. No labor certification is required for this category, although an offer of employment is needed from a university or institution of higher learning, or a department, division, or institute of a private employer offering a permanent research position. The researcher or professor must have at least three years of experience in teaching and/or research in the field of expertise. Multinational executives and managers (EB-13) qualify based on an intracompany relationship between their foreign and U.S. employers.

  Second Preference classification is reserved for: 1) professionals with an advanced degree (who must have either a U.S. academic or professional degree, or foreign equivalent, above a bachelor’s level, or a U.S. bachelor’s degree, or foreign equivalent, in addition to five years of progressive experience in the specialty field) and 2) persons of exceptional ability in the sciences, arts or business who can demonstrate a degree of expertise significantly above that ordinarily encountered. There is a list of seven categories in the immigration regulations itemizing the types of documentation that should be provided to evidence the exceptional ability. In general, the applicant must have a full-time permanent job offer to apply in this visa category. Every petition under this second preference classification must be accompanied by an individual labor certification from the Department of Labor (“DOL”) or by an application for Schedule A designation (if applicable). (See discussion below regarding labor certifications). The labor certification must demonstrate that the job requires a professional with an advanced degree (or the equivalent) or an individual of exceptional ability. The requirement of a job offer, and thus of a labor certification, may be exempted if such an exemption would be in the national interest. Although there are currently no immigration regulations defining “national interest” there are proposed regulations and case law upon which CIS adjudicators rely in making the determination.

  The Third Preference category is divided into three sub-categories: (1) professionals; (2) skilled workers; and (3) other workers. Labor certification from the DOL is required prior to the filing of the immigrant visa petition (Form I-140). The labor certification process requires a U.S. employer to test the U.S. labor market by advertising for the position being offered to the foreign national in order to prove that there is a shortage of qualified, willing and able American workers for the position. This process can be complicated and very lengthy. To qualify as a professional, the position offered must require an individual with at least a bachelor’s degree, or equivalent. To qualify as a skilled worker, the position must require someone with at least two years of training or experience. It is not enough that the employer state that two years of training or experience is necessary; it must be a standard requirement for the industry. The other worker category applies to individuals offered permanent positions that require less than two years of experience or training.

Law Office of Lisa Palter  Mill Valley, CA   T: (415) 380-8215  info@lisasvisas.com