Non-immigrant vs. immigrant in U.S. immigration law

 

Non-immigrant vs. immigrant visa categories:

It is important to understand the distinction made in U.S. immigration law between immigrant and non-immigrant visa categories. Immigrant, when used in reference to the U.S. immigration system, refers to permanent residence, or categories under which an individual who establishes eligibility will be issued a green card. Non-immigrant visa categories refers to temporary visas, those that have a certain duration prescribed by law, at the conclusion of which the individual beneficiary will return to their home country.

Non-immigrant vs. immigrant intent:

To complicate the system further, non-immigrant visas are divided into two distinct categories, those that permit immigrant intent and those that require a demonstration of non-immigrant intent. When a visa category permits immigrant intent it means that it is allowable for the applicant to intend to move to the U.S. on a permanent basis, even when they are applying for or entering the country on a temporary visa, such as an H or an L visa. Other visa categories require an applicant to prove to the U.S. consular officer that the applicant has no intention to remain in the U.S. beyond the expiration of the status they are seeking.

This distinction is important, because the law is set up in such a way that for those categories that do not allow for immigrant intent (the majority of temporary visas do not) the burden of proof is on the applicant. In other words, an applicant is assumed to have immigrant intent unless the applicant can prove otherwise. In many instances, this complicates application to many temporary visa categories such an F or J categories.

Proving non-immigrant intent:

The evaluation of intent is at the discretion of the consular officer and is based on the analysis of the applicant’s “ties” to his or her home country. In certain cases, strong ties may be demonstrated, and intent is not an issue. This simply means that the assumption is made by the consular officer that if an individual has multiple strong and well-documented ties to their home country, they are more likely to return home at the expiry of their status in the U.S.

Most cases however, require a careful analysis of  the individual applicant’s financial, employment and family ties as well as careful collection and preparation of documentation to substantiate those ties at the visa interview. Demonstration of ties may also require an application of legal acumen in arguing that the existing ties should overcome the presumption of immigrant intent by the applicant. We routinely help through the analysis, collection, preparation and presentation of evidence in these situations. Please contact us and request a consultation with an immigration attorney to discuss your particular situation in detail by clicking here.

Most typically used non-immigrant work and business visa categories and their primary requirements

For a full list of non-immigrant visas please review all non-immigrant visas in alphabetical order by clicking here. Please note, only highlights of numerous visa requirements are listed below. The information on this website is general in nature and cannot be substituted for detailed consultation with an attorney, please read terms of use before reviewing the following information.

B-1 Business Visitors 

  • You must have a foreign residency overseas that you have no intention of abandoning
  • You are coming to the U.S. for a short time for business, to attend meetings or conferences, etc.
  • You will not be hired and will not work in the U.S.
  • Your payment will come from your home country – You must demonstrate strong ties to your home country

H-1B  Specialty Occupation

  • You possess a U.S. equivalent of a bachelor’s degree or higher or its equivalent
  • You have a job offer from a U.S. employer in a Specialty Occupation as designated by law, usually meaning in the position requiring a bachelor’s degree or higher
  • The position is related to your field of study
  • Your employer will pay an an actual or prevailing wage for this position, whichever is higher
  • H-4 can be obtained for spouses and unmarried children under 21 years of age of H-1B holders

For details on this category please see our H-1B service page by clicking here.

H-2B Temporary or Seasonal Worker

  • You are coming to the U.S. to perform work that is seasonal or temporary (unique construction job, summer camp, resort employee etc.)
  • Your U.S. employer ran recruitment of U.S. workers through an ad campaign to find an eligible U.S. worker but the position was not filled
  • H-4 can be obtained for spouses and unmarried children under 21 years of age of H-2B holders

TN VISA – You qualify for a TN visa under NAFTA (North American Free Trade Agreement)

For details on this category please see our TN practice by clicking here.

L-1A Intracompany Executive or Manager

  • You work in a position as a manager or executive in a company in your home country
  • You have been in this position continuously for 1 year in the past 3 years
  • Your company is related to the U.S. employer OR is opening a NEW OFFICE in the U.S.
  • Your company is transferring you to the U.S. office in executive or managerial capacity

For details on this category please see our L-1A page by clicking here.

L-1B Specialized Knowledge transfer

  • You work in a position of specialized knowledge in a company in your home country
  • You have been in this position continuously for 1 year in the past 3 years
  • Your home company is related to the U.S. employer OR is opening a NEW OFFICE in the U.S.
  • Your home company is transferring you to the U.S. office in executive or managerial capacity

I – Journalist/Media Visas

  • You are a member of the media in your country
  • You are traveling to engage in your professional activity: production of news, documentary or film, etc. – You must be paid outside the U.S. by your employer

O-1A/B Visa – Extraordinary Ability (Science, Education, Business, Athletics, or Motion Picture/Television)

  • You possess extraordinary ability in one of the areas above
  • You can demonstrate national or international acclaim
  • You are coming to the U.S. temporarily to continue in your line of work

P Visa for recognized Athletes or Entertainment Groups
If as an athlete, you cannot qualify for the O category, you may qualify for the P category

  • You are an athlete who competes individually or with a team at an internationally recognized level
  • OR, You are an entertainer who performs with or are an integral and essential part of the performance of an entertainment group
  • AND your group has received international recognition as “outstanding” for a “sustained and substantial period of time”

Q Visa for Culture Exchange

  • You are coming to the U.S. to participate in an International Cultural Exchange Program
  • Your sponsoring employer must maintain an established international cultural exchange program
  • Employer must have the ability to compensate the participants

R Visa for Ministers and Religious Workers

  • You are a minister or a person working in a professional capacity for a religious organization
  • Your occupation must be an activity related to religious functions (liturgical workers, cantors, and religious broadcasters, etc.)
  • You must have been a member of a religious denomination for a minimum of two years
  • Your religious denomination must have a bona fide nonprofit religious status in the U.S.

E-2 Treaty Investors

  • You are of a nationality of E-2 treaty country
  • You are investing a substantial amount of money in the U.S. economy
  • You are coming to the U.S. to direct and develop the enterprise you are investing into