NONIMMIGRANT (TEMPORARY) VISAS

• The foreign national must be in possession of a valid passport.
• In most instances, a foreign residence must be maintained by the foreign national.
• The foreign national may be required to show proof of financial support.
• The foreign national must be admissible or have obtained a waiver for any ground of inadmissibility.
• The foreign national must abide by the terms and conditions of admission.

A nonimmigrant visa allows a foreign national to enter the United States temporarily for a specific purpose. The purpose must be temporary. The foreign national must show nonimmigrant intent and agree to depart at the end of his/her authorized stay or extension.

A person can only be admitted to one status. Once in the U.S., the nonimmigrant visa holder is restricted to the activity or reason for which his or her visa was issued, unless and until granted either a change of status to a different nonimmigrant visa or an adjustment of status to legal permanent residency.  

Some temporary worker categories are limited in total number of petitions which can be approved on a yearly basis.  

Visa retrogression occurs when more people apply for a visa in a particular category or country than there are visas available for that month. Retrogression typically occurs toward the end of the fiscal year as visa issuance approaches the annual category, or per-country limitations.  KLF assists with visa retrogression strategies. 

Before you can apply for a temporary worker visa at a U.S. Embassy or Consulate,  an employer must file on your behalf and your petition must be approved.   

• Only a few nonimmigrant classifications allow you to obtain permission work in this country without an employer having first filed a petition on your behalf.  Such classifications include the nonimmigrant E-1, E-2, E-3 and TN classifications, as well as, in certain instances, the F-1 and M-1 student and J-1 exchange visitor classifications.  

The complex interplay of government agencies can seem counterproductive and counterintuitive for obtaining & maintaining status of nonimmigrant workers.   

We use the term 'visa' to refer to status as well as for its real meaning, which is a travel document allowing entry.  Employers and employees must track the expiration of status date and, if applicable, the expiration of visa date.  These may not match.  

For example, a person can be granted a five-year visa from the Department of State but be given only a two-year period of stay on the I-94 upon entry through Customs and Border Protection. Before the I-94 expires, the employee must either travel and re-enter on the visa, receiving a new two-year I-94, or file a petition with USCIS to extend his or her stay.

In another case, someone who changes status in the United States from one nonimmigrant category to another  will acquire a new status but will not be issued a new visa.  A visa, which is technically a travel document that allows entry, requires attention (authorization from the State Department) before vacationing outside the U.S. in the new status.  

KLF is here to assist you. 

Here is the procedure for an H-1B employee as an example:

• The U.S. Department of Labor (DOL) guides the wage and terms a sponsoring employer can offer. 
• Next, we submit a petition along with a job offer and the employee's qualifications to the U.S. Citizenship and Immigration Services (USCIS), describing the job offered and the prospective employee’s qualifications.  

If the employee is inside the U.S.,:

• If your prospective employee is already in the U.S. in another nonimmigrant status , neither an entry visa nor anther government agency are needed.  Once the petition is approved, the USCIS will issue Form I-94 that grants the employee a period of stay in H-1B status.  The employee loses his or her prior nonimmigrant status and now has a replacement status. 

If the employee is outside the U.S.,:

• If your prospective employee is outside the U.S., we need approval from the Department of State and the Customs and Border Protection (CBP_.  The DOS will grant the visa allowing travel and entry into the U.S., and the CBP will issue Form I-94 at the place of entry, admitting the employee for a period of stay in H-1B status. 

• The  L, O, P, Q, and R nonimmigrant worker categories follow the same basic pattern as H, but without the involvement of the U.S. Department of Labor (DOL) .
• The L and TN categories are unique because the employer’s petition can be presented directly to CBP, without the prior involvement of USCIS. 
• The E visa category requires no prior employer petition for a prospective employee outside the U.S., but the visa application your employee presents to the State Department consulate abroad will be far more substantial than an H or L visa application, which are based on approved USCIS petitions.

As of October 2, 2020, Form I-129 is separated into the following forms:

• I-129H1:  Petition for H-1B or H-1B1 Nonimmigrant Workers
• I-129H2A & I-129H2B Petitions for H-2A and H-2B Workers 
• I-129L Petition for L Nonimmigrant Workers
• I-129O Petition for O Nonimmigrant Worker
• I-129E & TN Application for  E & TN Nonimmigrant Workers
• I-129MISC Petition for H-3, P, Q, or R Nonimmigrant Workers