Temporary
Visas
A person who is permitted to enter the United States on a temporary basis is
known as a nonimmigrant. Generally, it is much more difficult to obtain a Green
Card or be permitted to enter as a legal permanent resident or immigrant.
There are many temporary-entry classifications. Each has a special purpose
with a unique criteria and qualification process. Each is identified by a letter
of the alphabet ranging from A to S. There are also special classifications such
as TN (for NAFTA) and NATO. Each has its own processing rules which must be
followed carefully.
The temporary classifications break down into several groups such as
visitors, students, business professionals and extraordinary or
internationally-recognized persons and foreign government representatives. Each
group contains several individual classifications with their own criteria and
process to follow. For example, a visitor for pleasure may receive and automatic
six month entry while a skilled professional may be admitted for an initial
period of three years. Only two classifications specifically permit a person to
hold temporary status and apply for a Green Card at the same time; both are in
the Business Professionals group. Also, only certain classifications permit an
alien to enter to work.
If temporary employment is involved and, before an INS petition may be
processed, Department of Labor clearance is usually required. This is called
either Labor Certification or Labor Condition Application depending on the
classification. This labor clearance may require an employer to demonstrate that
there are no U.S. workers available and willing to do the job.
In the case of some H-1B applications, it is not necessary to demonstrate
that qualified U.S. workers are unavailable, although the employer must attest
that the alien will be paid at least the going rate for the job, that he or she
is fully qualified, that the hiring is not related to a strike or lockout, that
other employees are advised of the hiring and so on. However, employers who have
an H-1B workforce which is above certain limits must follow a much stricter set
of rules including ensuring that qualified U.S. workers are not available. These
employers who are called H-1B-dependent employers, are also subject to severe
penalties if they fail to follow the rules.
The Immigration and Naturalization Service or INS requires the filing of an
application or petition in many cases such as for those wishing to work, marry,
attend university or college, vacation, work for a foreign government or obtain
asylum or refugee status. The INS role is to ensure that an intended
nonimmigrant is qualified for entry. In some cases application is made at the
U.S. Port of Entry while in other cases it is filed at an INS office in the U.S.
or at a consulate abroad.
Although the INS petition is filed in the United States, notice of approval
is usually sent to the U.S. Department of State's Embassy or Consulate in the
alien's home country where an interview may take place and a visa is issued. The
final step is to take the visa to a U.S. Port of Entry where the alien will
examined and may be admitted for a specific period of time and given status in a
pre-determined classification.
If an alien is in the United States in some legal status, processing may be
carried out without leaving the country.
After receiving permission to enter on a temporary basis, an alien must
always remain "In Status." A nonimmigrant must not stay beyond the end of the
approved period of stay without getting an extension or obtaining status in
another classification. Nonimmigrants, like immigrants should learn and follow
the rules for maintaining status in their specific classification.
