Obtaining a Non-Immigrant Visa - Immigration America

A non-immigrant visa is permission by the United States government, given to a citizen of a foreign country to enter the United States temporarily. In most instances, a visa is issued by a United States consulate (USC) in a foreign country – generally the country of the applicant’s nationality or citizenship.

On the other hand, immigrant visas are visas which enable a person to live and work permanently in the United States. An immigrant visa is typically called a "green card." See the article on "Obtaining an Immigrant Visa", also on this website.

A non-immigrant visa is exactly what its name implies. It is a permission to a person to temporarily enter the United States for a certain purpose. For example, "B" visas are issued to business visitors and tourists. "F" visas are issued to students, "H" visas are issued to temporary workers, "P" visas are issued to performers and "J" visas are issued to exchange visitors. In addition, each visa type may have one or more sub-types. An appendix at the end of this chapter lists the more commonly issued non-immigrant visa types.

There are several common features to the above non-immigrant classes. For example, in almost every class, the alien’s spouse and child or children are permitted to also obtain non-immigrant visas under the same classification. For example, spouses and children of F-1 students are classified as F-2 dependents. Similarly, spouses and children of L-1A or L-1B multi-national managers or executives or other employees are classified as L-2 dependents.

The activities of non-immigrants in the USA are restricted. For example, B-1 or B-2 business visitors or tourists cannot engage in any employment in the United States, with certain extremely limited exceptions for B-1 business visitors. If a non-immigrant is found violating the terms of his or her stay, that alien may be deportable. Additional penalties such as inadmissability for future non-immigrant visas is another likely consequence. It is possible to change from one non-immigrant category to another after entry to the USA. However, certain non-immigrant classes (example-visa waivers) do not permit such a change.

There are hundreds of United States consulates around the world and many countries have more than one consulate. The United States Department of State (DOS) issues non-immigrant visas through its officers at the consulates.

Applying for a non-immigrant visa:

In order to apply for a non-immigrant visa to the United States, you must have a valid passport. In addition, most consulates will require that you fill out Form OF-156 or a similar form, which is obtained at the consulate, usually on the morning that you appear at the consulate to apply for a visa. An applicant for a non-immigrant visa fills out Form OF-156 and submits it at the consulate. The applicant will usually be interviewed by a consular officer, usually on the same day. Likewise, a decision to issue the visa or to deny the application will be made either the same day or within the next few days.

What is asked at the visa interview?

Every applicant for a visa to the United States is presumed to be an "immigrant." The term "immigrant" means someone who intends to live permanently in the United States. It is the applicant’s burden to prove to the interviewing officer that he or she is not an intending immigrant, but rather qualifies as a non-immigrant. Only if the officer is satisfied that the applicant qualifies as a non-immigrant, will the officer approve the non-immigrant visa.

Proving Non-Immigrant Intent:

In order to prove that you are not an immigrant, you must establish that you have all the typical criteria that the DOS evaluates in determining whether you are an immigrant or a non-immigrant. These criteria include the following:

Your ties to your home country – do you have family and/or business connections and relationships which will act as a powerful "magnet" to bring you back to your home country at the conclusion of your stay in the USA?

Ties to the USA – do you have parents or an adult son or daughter who are US citizens? Do you have a boyfriend or girlfriend in the United States? Immediate family relationships or romantic connections with the United States may cause the consular officer to believe that a non-immigrant visa is simply a ruse for the applicant to enter the United States, thereafter apply for an immigrant visa, and thereby circumvent lengthy immigrant visa backlogs.

Ability to support oneself in the United States: if a visa applicant cannot show sufficient funds to support himself in the United States during the course of a visit, the visa application is likely to be rejected. This is because the consular officer will likely believe that the non-immigrant may have to turn to unauthorized employment or is likely to become a "public charge" (a person needing government assistance for his or her expenses) and should therefore be denied a non-immigrant visa.

Prior visit to the United States – a visa applicant who has previously visited the United States and has followed all the rules and regulations of the Department of State and the Immigration and Naturalization Service (INS) has a far better chance of obtaining a non-immigrant visa than an applicant who has either never visited the United States or has visited the United States and has violated the law in the United States. The law can be violated by something as simple as remaining in the United States for a period longer than was authorized by the INS or the DOS. Indeed, violation of a visa is grounds for the revocation of that visa (Immigration and Nationality Act, Section 222(g)).

Other Grounds for Denial of a Non-Immigrant Visa:

As already referenced above, one of the grounds for rejection of a non- immigrant visa application is the consular officer’s determination that the applicant will become a "public charge." Other grounds include lack of family ties, financial ability to support oneself while in the USA, or close family or a romantic relationship in the United States. Other grounds for a denial of a non-immigrant visa include overstays while previously in the United States, employment without legal work authorization, criminal history, communicable or infectious diseases, and visa fraud. This is not an exhaustive list; these are only a few of the examples of the grounds for denial of a non-immigrant visa application. A detailed list of the grounds for exclusion/denial of a non-immigrant visa application can be found in § 212 of the Immigration and Naturalization Act (INA).

The Secrets of a Successful Visa Application:

Be well prepared – have clear, legible photocopies of all documents and originals wherever possible. Have detailed lists of family relationships, ties to your home country, and lists of assets.

Have a well-defined plan for what you wish to do when you visit the United States. If you are going to enter as a student, be specific about your goals. If you are going to visit the United States for a business, have specific business plans, meetings or visits to trade shows lined up. If you are entering the United States to visit a friend or relative, be specific about where you plan to stay, what you plan to do, sights you intend to see.

Have adequate proof of your financial ability to support yourself while in the USA. This might include a commitment from your United States citizen or permanent resident friend or relative who agrees to be your host for the duration of your trip.

Do not lie – consular officers are very well experienced and well trained. It will obviously hurt an applicant enormously to be found to have lied in the event of a consular interview. Also, be aware that even though you may obtain a non-immigrant visa and enter the United States, subsequent visa proceedings may be difficult or impossible because statements you have made during your initial visa interview overseas conflict with your activities while in the USA.

The DOS issues visas for different duration and for different numbers of "entries" to the USA. For example, an H-1b visa from India is valid for the duration of the H-1b classification and for multiple entries to the USA. An H-1b visa for a Chinese professional is valid for only 3 months and up to two entries to the USA during that 3 month period. The "I-94" (white/green card) issued on entry to the USA will state the duration of a non-immigrant’s authorized stay in the USA, which may or may not be the same duration as authorized by the visa. The date on the I-94 is the controlling date in all non-immigrant visa cases.

Procedures on Entering the United States:

Even though you have been issued a visa at an overseas consulate, you are subject to "secondary inspection" at the time you enter the USA. The INS inspector can – and will – order you to leave the United States if additional facts come to light which indicate that you should not have been issued a non-immigrant visa in the first place. If you are eligible for entry to the USA, the inspecting officer will "date-stamp" and validate your Form I-94, as described above.

Every year millions of foreign visitors enter the United States for a variety of reasons. The key to a successful non-immigrant visa application is to be prepared, be honest and know exactly what you want.

APPENDIX: Types of commonly used non-immigrant visas

A: Ambassador/diplomat from another country to the USA

B: (1) Business visitor; (2) Visitor for pleasure (Tourist)

C: Transit Visa – traveling through the USA en route to another country.

D: Crewman (on board a vessel docking at US ports)

E: (1) Treaty trader; (2) Treaty investor

F: Student

H: Temporary worker, divided into various other sub-classes, including H-1b professional employee; H-2 unskilled temporary worker, H-3 trainee, or H-1c (new) Nurse practitioner visa

J: Exchange visitor – sometimes subject to a 2-year home-country residency requirement upon completion of the period of stay in the USA

K: Fiancee visa (see article titled "Love Knows no Boundaries: Getting a Fiancee Visa" , also on this website)

L: (1A): Multinational manager or executive; (1B): Multinational employee with specific technical expertise (see related article titled "The L-1A visa: Back Door to Permanent Residency" , also on this website.

M: Vocational student

O: Aliens of extraordinary ability or achievement (this is a non-immigrant visa, not to be confused with the immigrant EB-1 or EB-2 category of "extraordinary or exceptional ability alien", described further in the article "Are You Extraordinary or Exceptional?" )

P: Artists, athletes, and entertainers, together with assistants and family

Q: Cultural exchange visitor (show the culture and heritage of the country of origin to viewers in the USA for a period not to exceed 15 months)

R: Religious worker visa

TN: "Trade NAFTA" visa, for citizens of Canada or Mexico, to enter the USA for up to 1 year and work for a US employer. (Please see the article titled "The TN Visa: An option for Canadian Professionals" )

Visa Waiver Program: The US Congress authorized the entry to the USA without a visa for visitors for pleasure from a limited list of countries. The countries include most European Union members, Australia, New Zealand, and Brunei. A visitor entering under the visa waiver can remain in the USA for maximum of ninety days.

Note: The above is not an exhaustive listing of non-immigrant visa categories, but is only intended to give you an idea of the types of visas available so as to help you determine what visa classification may be most appropriate for your particular intent.

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