US Non Immigrant Visa Application Guide

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 stark 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.

 

US nonimmigrant visas

There are two categories of US visa: nonimmigrant visas for temporary visits and immigrant visas, which allow holders to live in the US on a permanent, lawful basis.

Looking specifically at non immigrant visas, these can be further divided by purpose of visit:

• Tourism and medical treatment
• Business
• Temporary employment
• Study and exchange

 
There are a number of visas under each of the above categories, each with their own eligibility and application requirements.

 

Visa waiver program

Before considering the different types of US non-immigrant visas for entry into the USA, it is worth exploring if you are eligible to travel visa-free under the Visa Waiver Program (VWP).

In the case of a short stay of 90 days or less,

Nationals of the Visa Waiver countries will generally not require a visa where the visit will be a short stay of 90 days or less and where they have been granted ESTA approval (Electronic System for Travel Authorization).

Where the VWP does not apply, which visa best meets your needs? We look at some of the more common US non-immigrant visas.

 

B-1 Business Visa

The B-1 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.

 

B-2 Visa

To visit the USA for tourism purposes or to seek short-term medical treatment, the B-2 visa may be the most suitable option. The B-2 visa would therefore be the ideal visa for a vacation, visiting friends or relatives who live in the USA.

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.

 

B-1/B-2 Combined Visa

When travelling on a US Embassy visa, you must adhere to the purposes assigned to that visa. If you apply for a B-1 visa, the purpose of your visit must be solely for permitted business-related activity. You would not, for example, be allowed to attend a work conference and stay on to visit Disneyland. Likewise, if you enter the US on a B-2 visa, the purpose of your visit must remain with the permissible activities, and it would be against the conditions of your visa to go outside of this.

Instead, where your visit is intended to combine both business and tourism or medical treatment, a B-1/B-2 combined visa would be appropriate as this would enable you to combine purposes during your stay without breaching your visa conditions.

 

D Crewmember Visa

This visa is used by a person who works on commercial sea vessels or international airlines, either of which travel to the USA.

 

E-1 Treaty Trader Visa

The Treaty Trader visa, or the E-1 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.

 

E-2 Treaty Investor Visa

The E-2 visa is used by entrepreneurs and business owners who wish to operate a business in the USA, either through setting up a new enterprise or investing in an existing enterprise.

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.

 

E-3 Australian Professional Speciality Visa

This visa is for Australian nationals only who wish to enter the USA to work in a speciality occupation requiring knowledge in the relevant profession and the minimum of a US bachelor’s degree or equivalent in the occupation.

 

G Employees of International Organisations and NATO Visa

This visa covers G-1 to G-5 visas and the NATO-1 to NATO-6 visas.

The G visa would be suitable for government officials, diplomats and employees who will be working for international organisations in the US.

The NATO visa would be used by officials and employees of the North Atlantic Treaty Organisation (NATO) who will work for NATO in the USA, including foreign military personnel stationed in the USA.

 

I Members of the Foreign Media Visa

The I visa is used by members of the foreign media who will be visiting the USA on a temporary basis for work purposes. The resulting content form the visit will be scrutinized against qualifying I visa criteria, in that it must be informational, educational or relating to general newsgathering. The applicant’s role and skills will also be vetted to ensure they qualify as a member of the foreign media and that their skills cannot be delivered by a resident US worker.

 

R Temporary Religious Worker Visa

This visa is suitable for a person who wishes to enter the USA to work temporarily in a religious capacity.

 

Other Temporary Worker Visas

The Temporary Worker Visa is used by persons wishing to enter the USA for the purpose of employment for a fixed, non-permanent period of time.

This category covers:

• H-1B – person in speciality occupation
• H-1B1 – free trade agreement professional, for example, from Chile or Singapore
• H-2A – temporary agricultural worker
• H-2B – temporary non-agricultural worker
• H-3 – trainee or special education visitor
• L – intracompany transferee
• O – person with extraordinary ability or achievement
• P-1 – member of an entertainment group or an individual/team athlete
• P-2 – artist or individual/group entertainer under a reciprocal exchange program
• P-3 – artist or individual/group entertainer performing, teaching or coaching under a program of performance or presentation
• Q-1 – person taking part in an international cultural exchange program

 

H1B specialty 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.

 

L1 intracompany 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.

 

K-1 Fiancé or Fiancée Non Immigrant Visa

This visa allows the foreign citizen fiancé or fiancée to enter the USA to marry a US citizen within 90 days of arrival. Once married, the foreign citizen may apply for adjustment of status to permanent resident.

 

K-3 & K-4 Visas

Where your spouse is a US citizen, the K-3 visa can be used to shorten your time apart by using this non-immigrant visa to enter the USA while your immigrant visa is processed.

A K-4 visa could be used for your children, if eligible.

 

M & F Visas

To study in the USA, it is necessary to hold a student visa and the kind of visa will depend on your level of study.

The F visa covers:

• university or college
• high school
• private elementary school
• seminary
• conservatory
• other academic institution, including a language training program

 
The M visa is used for vocational studies or to attend a non-academic institution.

 

How to apply for a US non immigrant visa

While we provide a general overview of the application process for a US non immigrant visa, it is always recommended to take legal advice on your individual circumstances to ensure you select the most appropriate visa for your purposes and follow the correct application process. Issues or errors with your application can result in delayed adjudication or even refusal of your visa.

Your application begins by completing the online visa application, form DS-160 and pay the relevant processing fee(s).

Once you have completed the online form, it is important that you print off a copy of the application form confirmation page and fee payment receipt, as you will need to bring these with you to your visa interview.

The next stage, if you are between 14 and 79 years old, will be to schedule an interview at your local EU Embassy or Consulate.

You will be interviewed by a consular officer. The purpose of the interview is to ensure that you are eligible to receive your non immigrant visa. The onus is on you as the applicant to demonstrate you meet all the requirements to be granted a visa under US law.

The documentation you will need to present will depend on a number of factors, including the type of visa you are applying for. A tourist visa for example will generally require less fewer documents than the E-2 visa. Take advice on your circumstances to ensure you are presenting your application thoroughly and comprehensively.

After the interview, the consular officer will decide whether to grant or decline your visa application, or whether further information is required before a decision can be made.

 

Do you need help with a US Non Immigrant Visa? NNU can help!

The process of making a US visa application, from deciding on the right kind of visa to completing the necessary documentation and attending your interview at a US Embassy, can be lengthy and complex.

We provide specialist immigration legal advice to help navigate the complexities of the US visa application process and address any issues that may arise as a result of your application.

If you have a question about making a US visa application, or any other US immigration-related matter, please contact us for advice.

This article does not constitute direct legal advice and is for informational purposes only.