What is a US Nonimmigrant Visa?
If you are a non-US national and you want to visit, live or work in the United States, you will need to consider what visa options are available to you. The following guide looks at the differences between the immigrant and the nonimmigrant visa, as well as the different types of nonimmigrant visa that may be available to you.
What is the difference between an immigrant and nonimmigrant visa?
Generally, under US immigration law, a citizen of a foreign country who wishes to enter the United States must first obtain a visa, either a nonimmigrant visa for temporary stay, or an immigrant visa for permanent residence.
A nonimmigrant visa is only for a time-limited period. While in some cases this type of visa can be renewed or extended, you must continue to meet all applicable visa requirements throughout your stay in the United States.
In contrast, an immigrant visa, otherwise known as a green card, will permit you to live and work in the United States indefinitely, although this will still not grant you the same rights as a US citizen.
What are the main categories of nonimmigrant visa?
There are several different types of nonimmigrant visa available. Below we look at some of the main classifications, from visitor visas to long-term work visas.
Business visa
The Business visa, or B1 visa, is a nonimmigrant visa that allows you to visit the United States for the purposes of undertaking certain business activities, including attending seminars, conferences or meetings. You are not, however, permitted to undertake gainful employment under this type of visa.
When applying for a B1 visa there are specific requirements that must be met under US immigration law. In particular, you must be able to demonstrate that:
- The purpose of your trip is to enter the US temporarily for business activities.
- You have funds to cover any expenses during your trip.
- You plan to remain for a specific limited period.
- You have a residence outside the US, as well as other binding ties, that will ensure your departure at the end of your visit.
To apply for a B1 nonmmigrant visa you will need to complete Form DS-160, an online application form, pay the necessary fee and schedule an interview with your US Embassy or Consulate in the country where you reside.
Tourist visa
The Tourist visa, or B2 visa, is a nonimmigrant visa that allows you to visit the United States for the purposes of tourism, pleasure or visiting friends and family. That said, under a B2 visa you can also partake in additional activities including undergoing medical treatment, undertaking a short course of study, participating in social events hosted by fraternal, social or service organisations, or even performing as an amateur entertainer or athlete, so long as you don’t get paid.
When applying for a B2 visa, as with a B1 visa, there are again specific requirements that must be met under US immigration law, including having adequate funds to cover any costs and proving your intention to depart the US at the end of your trip. The application process is also the same, whereby you will need to submit Form DS-160 and attend an interview.
In either case, for both the B1 and B2 visitor visas, if the reason for your trip is not recreational in nature or for business purposes, or otherwise falls outside the scope of the permitted activities, you will need to apply for a different type of nonimmigrant visa. Below we look at some of the main types of nonimmigrant visas for undertaking paid employment.
Treaty Trader visa
The Treaty Trader visa, or the E1 visa, is a nonimmigrant visa for citizens of countries with which the US maintains a treaty of commerce and navigation. This type of visa was established to facilitate economic and commercial interaction between the US and other treaty countries, including the UK.
Under an E1 visa, you must be coming to the United States to engage in substantial trade in qualifying activities, principally between the US and the treaty country. Accordingly, E1 visa holders must enter the US “solely to carry on substantial trade”, rather than for any other purpose.
To be eligible for an E1 visa, as either a treaty trader, or as a senior or skilled employee of a trader, you must show the following:
- As an individual or business, you must possess the nationality of a country with which the US maintains a treaty of commerce and navigation. The nationality of a business is determined by the nationality of the individual owners of that business.
- The trade constitutes an actual traceable exchange of qualifying commodities such as goods, moneys or services between the US and the treaty country.
- The trade is substantial based on an existing trading relationship, where there have been numerous transactions establishing a continuing course of international trade. There is no set limit to the amount of trade that must take place, although greater emphasis is placed on the number of transactions over the total monetary value.
- The trade is principally between the US and the treaty country. You will need to show that over 50% of the total volume of your international trade is between the treaty country and the US.
- Where applying as an employee, that you are destined to an executive or supervisory position, or that you possess skills essential to the firm’s operation in the US.
- Whether as a treaty trader or an employee, that you intend to depart the US when your E1 visa status comes to an end.
There are a number of steps involved in applying for an E1 Treaty Trader visa, in particular E1 visa applicants will need to complete online Form DS-160. Having submitted this form and paid the non-refundable application fee, you will need to schedule an appointment with the US Embassy or Consulate in the country where you reside.
At interview, you will be required to produce documentation in support of your E1 visa application, including but not limited to your passport, a copy of Form DS-160 confirmation page, as well as Form DS-156E which requires detail of the treaty trader enterprise. You should also expect that the consular officer will request additional and extensive documentation to determine whether you satisfy the E1 nonimmigrant visa requirements.
Treaty Investor visa
As with the E1 visa, the Treaty Investor or E2 visa is a nonimmigrant visa for citizens of countries with which the US maintains a treaty of commerce and navigation. Under an E2 visa, however, you must be coming to the United States to develop and direct the operations of an enterprise in which you have invested, or are in the process of investing, a substantial amount of capital.
Accordingly, E2 visa holders must enter the US “solely to develop and direct the operations of an enterprise” in which they have invested, or to work in that enterprise as an executive, supervisor or essentially skilled employee.
To be eligible for an E2 visa, you must show the following:
- You are a national of a country with which the US maintains a treaty of commerce and navigation.
- You have invested, or are in the process of investing, a substantial amount of capital in a bona fide enterprise in the United States.
- The investment is more than a marginal enterprise solely for earning a living for you and your family.
- You are seeking to enter the US solely to develop and direct the investment enterprise. Under the “fifty percent rule” you will need to show at least 50% ownership of the enterprise, or possession of operational control through, for example, a managerial position.
- As with an E1 visa, where you are applying as an employee, you will need to show that you are destined to an executive or supervisory position, or that you possess skills essential to the firm’s operations in the US.
- Whether as a treaty investor or an employee, you will need to show that you intend to depart the US when your E2 visa status comes to an end.
The process for applying for an E2 Treaty Investor visa is not dissimilar to an E1 visa, whereby applicants must establish that the investment enterprise meets the requirements of US immigration law and complies with the many requirements for the E2 visa category. Again you should expect that the consular officer will request additional documentation to determine your eligibility for this visa.
Intra-Company Transfer visa
The Intra-Company Transfer visa, or the L1 visa, is a nonimmigrant visa for an employee of a multinational company or organisation who is being temporarily transferred to a parent, branch, affiliate or subsidiary of the same company in the United States. The L1 visa can also be used where an employee of an international company is looking to open a new office in the US.
There are two different types of L1 visa: the L1A and the L1B. To be eligible for an L1A visa, you must work in a managerial or executive capacity and be destined to a similar position within the US office. For the L1B visa, you must have specialised knowledge about the products, services, processes or procedures used by your employer, and again be intending to work in the same or similar capacity in the US affiliated office.
In either case, you must have been employed with the multinational company or organisation continuously for a full year within the three years preceding the nonimmigrant visa application. Additional criteria must also be fulfilled where you are looking to open up a new office.
As with many nonimmigrant visas, a petition must be filed by your US employer and approved by the US Citizenship and Immigration Services (USCIS) before applying for your visa at a US Embassy or Consulate. This can be done using Form I-129, Petition for a Nonimmigrant Worker. Once approved, a visa application can then be submitted using Form DS-160.
Speciality Occupation visa
The Speciality Occupation visa, or the H1B visa, is a nonimmigrant visa if you are travelling to the US to undertake a role for a US employer in a speciality occupation that requires theoretical or technical expertise.
To be eligible you will need a bachelor’s or higher degree, or equivalent thereof, in the specialty for which authorisation is being sought. It is for USCIS to determine whether the employment constitutes a specialty occupation, and whether or not you are qualified to perform those services.
Prior to filing a petition for a H1B visa with USCIS, your prospective employer must first file a labor condition application with the Department of Labor. Once the labor certification has been received, and the petition subsequently approved, you can then apply for your nonimmigrant visa using Form DS-160.
This article does not constitute direct legal advice and is for informational purposes only.
Author
Founder & Principal Attorney Nita Nicole Upadhye is a recognized leader in the field of US business immigration law (AILA) and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with both US and UK operations to meet their workforce needs through corporate immigration.
Nita successfully acts for corporations and professionals, entrepreneurs, artists, actors, and athletes from across the globe, providing expert guidance on all aspects of US visa and nationality applications, and talent mobility to the USA.
Nita is an active public speaker, thought leader, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
