There are two (2) types of visas: (1) immigrant visas (for individuals who wish to become legal permanent residents of the US; and (2) non-immigrant visas (for individuals who intend to come to the US for a limited time, generally for employment purposes, and then to return to their home country.)
Generally, an individual who is legally in the US as a non-immigrant can change or adjust his/her visa to an immigrant visa if: (i) that person did not have the intent to immigrate at the time they entered de US as a non-immigrant; and (ii) that person meets the requirements for the immigrant visa they are seeking.
The most common types of non-immigrant visa that your clients are likely to seek are:
- A B-1/2 “Tourist Visa” – These visas can generally be gotten at local consulates without the assistance of an attorney. If, after coming to the US on a Tourist Visa, a client wishes to remain in the US, we would, most likely, be able to extend his/her B visa Alternatively, we might be able to adjust his/her status to another visa with longer duration.
- An E Visa – E visas can be used to conduct trade between the US ans countries with which the US has treaty (an E-1 Visa “Treaty Trader Visa”) or to oversee the investment of money in the US from a treaty country (an E-2 Visa “Treaty Investor Visa”). It is important to note that, a treaty must exist between the US and the country of the person seeking an E visa. An E-1 visa should be considered if a foreign national wishes to come to the US to set up a company to engage in substantial trade between the US and the foreign national’s country. An E-2 visa should be considered if a foreign national wishes to come to the US to invest.
- An H-1B Visa – This visa is appropriate if you have a client with a college degree or equivalent experience (three years of work experience equals 1 year of college) in a “specialty occupation” or, in other words, an occupation requiring a specialized body of knowledge. To be eligible for an H-1B, a US employer must be willing to sponsor/employ the client.
- An L Visa – This visa allows foreign companies to transfer employees temporarily to the US in order to aid or initiate operations in the US. The person(s) being transferred to the US must have been employed by the foreign company for at least one (1) year within the last three (3) years, and must have been employed in a managerial or executive capacity. If you have a client who owns a business in another country and wants to start a business (or purchase an existing business) in the US and “transfer” himself to the US to run that business, the visa L visa should be considered.
Immigrant visas would generally be available to foreign national who marries a US citizen or to a foreign national who has an immediate relative who is a US citizen. Additionally, in some instances a US employer can sponsor a foreign national for legal residence.
Finally, an individual can sponsor him/herself for legal permanent residence if their residence is deemed to be in the national interest of the United States. The following factors are considered by INS to determine if an individual is eligible for a National Interest Waiver:
1. Will (s)he help to improve the economy?
2. Will (s)he help to improve wages and working conditions for American workers?
3. Will (s)he help to improve education and training programs for Americans?
4. Will (s)he help to improve healthcare?
5. Will (s)he help to provide more affordable housing for Americans?;
6. Will (s)he help to improve the environment? or
7. Has (s)he obtained a request for assistance from an interested U.S. government agency?
Therefore, national interest waivers are broadly applicable and should be considered for many types of individuals including research scientists, home builders, business leaders ans healthcare specialists.