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CLASSIFICATIONS
The Immigration and Nationality Act provides
several categories of nonimmigrant visas for a person who wishes
to work temporarily in the United States. There are annual numerical
limits on some classifications which are shown in parentheses.
H-1B classification applies to persons
in a specialty occupation which requires the theoretical and
practical application of a body of highly specialized knowledge
requiring completion of a specific course of higher education.
This classification requires a labor attestation issued by the
Secretary of Labor (65,000). This classification also applies
to Government-to-Government research and development, or coproduction
projects administered by the Department of Defense (100);
H-2A classification applies to temporary
or seasonal agricultural workers;
H-2B classification applies to temporary
or seasonal nonagricultural workers. This classification requires
a temporary labor certification issued by the Secretary of Labor
(66,000);
H-3 classification applies to trainees
other than medical or academic. This classification also applies
to practical training in the education of handicapped children
(50);
L classification applies to intracompany
transferees who, within the three preceding years, have been
employed abroad continuously for one year, and who will be employed
by a branch, parent, affiliate, or subsidiary of that same employer
in the U.S. in a managerial, executive, or specialized knowledge
capacity;
O-1 classification applies to persons
who have extraordinary ability in the sciences, arts, education,
business, or athletics, or extraordinary achievements in the
motion picture and television field;
O-2 classification applies to persons
accompanying an O-1 alien to assist in an artistic or athletic
performance for a specific event or performance;
P-1 classification applies to individual
or team athletes, or members of an entertainment group that
are internationally recognized (25,000);
P-2 classification applies to artists
or entertainers who will perform under a reciprocal exchange
program;
P-3 classification applies to artists
or entertainers who perform under a program that is culturally
unique (same as P-1); and
Q-1 classification applies to participants
in an international cultural exchange program for the purpose
of providing practical training, employment, and the sharing
of the history, culture, and traditions of the alien's home
country.
PETITIONS
In order to be considered as a nonimmigrant under
the above classifications the applicant's prospective employer
or agent must file Form I-129, Petition for Nonimmigrant Worker,
with the United States Immigration and Naturalization Service
(INS). Once approved, the employer or agent is sent a notice
of approval, Form I-797. It should be noted that the approval
of a petition shall not guarantee visa issuance to an applicant
found to be ineligible under provisions of the Immigration and
Nationality Act.
VISA INELIGIBILITY/WAIVER
The nonimmigrant visa application Form OF-156
lists classes of persons who are ineligible under U.S. law to
receive visas. In some instances an applicant who is ineligible,
but who is otherwise properly classifiable as a temporary worker,
may apply for a waiver of ineligibility and be issued a visa
if the waiver is approved.
APPLYING FOR THE VISA
Applicants for temporary work visas should generally
apply at the American Embassy or Consulate with jurisdiction
over their place of permanent residence. Although visa applicants
may apply at any U.S. consular office abroad, it may be more
difficult to qualify for the visa outside the country of permanent
residence.
Required Documentation
Each applicant for a temporary worker visa must
pay a nonrefundable US$45 application fee and submit:
1) An application Form OF-156, completed and
signed. Blank forms are available without charge at all U.S.
consular offices;
2) A passport valid for travel to the United
States and with a validity date at least six months beyond the
applicant's intended period of stay in the United States. If
more than one person is included in the passport, each person
desiring a visa must make an application;
3) One photograph 1 and 1/2 inches square (37x37mm)
for each applicant, showing full face, against a light background;
and
4) A notice of approval, Form I-797.
Other Documentation
With the exception of the H-1 and L-1, applicants
may also need to show proof of binding ties to a residence outside
the United States which they have no intention of abandoning.
It is impossible to specify the exact form the evidence should
take since applicants' circumstances vary greatly.
U.S. PORT OF ENTRY
Applicants should be aware that a visa does not
guarantee entry into the United States. The U.S. Immigration
and Naturalization Service (INS) has authority to deny admission.
Also, the period for which the bearer of a temporary work visa
is authorized to remain in the United States is determined by
the INS, not the consular officer. At the port of entry, an
INS official validates Form I-94, Record of Arrival-Departure,
which notes the length of stay permitted. Those temporary workers
who wish to stay beyond the time indicated on their Form I-94
must contact the INS to request Form I-539, Application to Extend
Status. The decision to grant or deny a request for extension
of stay is made solely by the INS.
ADDITIONAL INFORMATION
Family Members
With the exception of "Q-1 Cultural Exchange
Visitors," the spouse and unmarried, minor children of an applicant
under any of the above classifications may also be classified
as nonimmigrants in order to accompany or join the principal
applicant. A person who has received a visa as the spouse or
child of a temporary worker may not accept employment in the
United States. The principal applicant must be able to show
that he or she will be able to support his or her family in
the United States.
Time Limits
All of the above classifications have fixed time
limits in which the alien may perform services in the United
States. In some cases those time limits may be extended by the
INS in order to permit the completion of the services. Thereafter,
the alien must remain abroad for a fixed period of time before
being readmitted as a temporary worker under any classification.
The INS will notify the petitioner on Form I-797 whenever a
visa petition, an extension of a visa petition, or an extension
of stay is approved under any of the above classifications.
The beneficiary may use a copy of Form I-797 to apply for a
new or revalidated visa during the validity period of the petition.
The approval of a permanent labor certification or the filing
of a preference petition for an alien under the H-1 or L classifications
shall not be a basis for denying a visa.
FURTHER INQUIRIES
Questions about petitioning procedures, qualifications
for various classifications, and conditions and limitations
on employment should be made by the prospective employer or
agent in the United States to the nearest INS office. Questions
on the visa application to the American consular official should
be addressed to the appropriate consular office abroad by the
applicant.
UNITED STATES DEPARTMENT OF STATE
Bureau of Consular Affairs
Visa Services
February 1998
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