Faqs

For the frequently asked questions and its answers on a particular visa, please see the relavant information below:

VISITOR / BUSINESS

VISA TYPE

Athletes, amateur & professional / Business visitors / Domestic employees or Nanny/ Tourism, vacation, pleasure visitors, medical treatment

B

STUDENT

VISA TYPE

Academic / Vocational

F/M

Au pairs,  Professor, Scholar, Teacher (Exchange Visitor)

J

WORK

VISA TYPE

Australian professional specialty

E-3

Specialty occupations in fields requiring highly specialized knowledge

H-1B

Free Trade Agreement (FTA) Professionals: Chile/Singapore

H-1B1

Temporary agricultural workers / Temporary workers performing other services/labor of a temporary or seasonal nature

H-2A/H-2B

Intra-company transferees

L

Religious workers

R

NAFTA professional workers: Mexico/Canada

TN

FAMILY

VISA TYPE

Fiancé(e) / Spouse of U.S. Citizen

K

OTHER NONIMMIGRANT

VISA TYPE

Diplomats and foreign government officials / Employees of a designated international organization, and NATO

A/G/NATO

Transiting the United States

C

Crewmembers

D

Treaty traders/treaty investors

E

Media, journalists

I

Foreign national with extraordinary ability in Science/Arts/Education/ Business

O

Performing athletes, artists, entertainers

P

International cultural exchange visitors

Q

Witness against Terrorists and Criminal Organizations

S

Victims of Trafficking and Violence

T

Victims of Criminal Activity

U

B VISA

Q. Is it permissible to enroll in school while in B-1/B-2 status?
A. No, it is not.  The regulations, at 8 CFR 214.2(b)(7), specifically prohibit study in the United States while in B-1 or B-2 status. Before enrolling in classes, individuals who are in B-1 or B-2 status must first acquire F-1 (academic student) or M-1 (vocational student) status.  Enrolling for classes while in B-1/B-2 status will result in a status violation.  Individuals in B-1 or B-2 status, who have violated their nonimmigrant status by enrolling in classes, are not eligible to extend their B status or change to F-1 or M-1 status. These regulations provide no exceptions. 

Q. If I am on B1/B2 status how can I obtain F-1 or M-1 status?
A. If you currently hold B-1 or B-2 nonimmigrant status and would like to enroll in classes, you may apply for a change of status to F-1 or M-1, as appropriate provided you have not yet enrolled in classes, your current status has not expired, and you have not engaged in unauthorized employment . To change your nonimmigrant status from B-1/B-2 to F-1 or M-1, you must file an Application to Extend/Change Nonimmigrant Status (Form I-539), and include the required fee and documents listed in the filing instructions. 

Q. I am on a B visa. Can I enroll for a short recreational course of study?
A. Yes, if it is not for credit towards a degree or academic certificate.

Q. If I enroll in classes before USCIS approves my Form I-539, will I be ineligible to change my nonimmigrant status from B to F or M.
A. Yes.

Q. If I am applying to extend my B-1/B-2 stay and have already enrolled in classes will USCIS approve my B-1/B-2 extension because of the status violation?
A. No.  

Q. If I am not eligible to change my nonimmigrant status to F-1 or M-1 what is my option?
A. You may apply for an F-1 or M-1 visa at a consular post abroad. You should work closely with the designated school official (DSO) to coordinate the timing of applying for change of status and enrolling in classes.

Q. How do I know if I am eligible to extend my B1/B2 stay in the United States?
A. You may apply for an extension of stay in the United States if: you were lawfully admitted as a nonimmigrant; you have not committed any act that makes you ineligible to receive any immigration benefit; there is no other factor that requires you to depart the US prior to extending status (for example,  officer at Port of entry makes a notation on I-94 that no change of status is allowed or if officer determines that you should obtain a new visa prior to extending your status); and you submit an application for extension of stay using Form I-539 before the expiration date on your I-94. Note: under very limited circumstances only USCIS will excuse a late submission.

Q. I am planning to extend my B1/B2 stay but my passport will expire before the period of extension that I am requesting. Should I have the passport valid for the entire requested period of stay?
A. Yes

Q. Can I file Form I-539, Application to extend/change my B1/B2 nonimmigrant status using USCIS ELIS?
A. Yes. USCIS ELIS is a comprehensive en-to-end system that allows applicants to electronically file a benefit request, upload and submit evidence, make payments, receive notifications from USCIS, and manage the account information.

Q. Can I get an extension o my B1/B2 if my authorized stay or visa has expired or is about to expire?
A. Usually, USCIS will not grant an extension of stay. However, if you believe that you have compelling unforeseen circumstances beyond your control that prevented you from filing on time, USCIS may grant an extension. If you stay is about to expire make sure you file the application in time for USCIS to receive it before your status expires.

Q. If I am eligible for an extension of stay and file on time will my stay of B1/B2 be extended?
A. An extension of stay is not automatic. USCIS will look at your situation, your status, the reasons you want to extend your stay and decide. If USCIS grants it, they decide how long to extend your stay. Usually, USCIS will not grant an extension if circumstances indicate than an extension is not warranted.

Q. What if I file for an extension of stay of my B1/B2 on time but USCIS does not make any decision before my I-94 expires? Will I accrue “unlawful presence?”
A. Your lawful nonimmigrant status ends, and you are out of status when the I-94 expires, even if you have timely applied to extend your nonimmigrant status. Generally, as a matter of discretion, USCIS will defer any removal proceedings until after the petition is adjudicated and USCIS decides your extension of nonimmigrant status request. Nevertheless, Department of Homeland Security may bring a removal proceeding against you, even if you have an application for extension of status pending.

Even though you are not actually in a lawful nonimmigrant status, you do not accrue “unlawful presence” for purpose of inadmissibility under section 212(a)(9)(B) of the INA, while your extension of status application is pending if it was filed prior to the I-94 expiration.

Q. I came to the USA on B1/B2 visa. After my stay and before my departure I forgot to hand over my I-94. I still have it. I am worried that when I enter next time POE might question me or not allow entry. What should I do?
A. It depends on which mode was used to enter USA. If you entered the United States via a land border port of entry or were provided a paper Form I-94 at an air or seaport and returned home with your Form I-94 (white) or, if you arrived by land under the Visa Waiver Program, Form I-94W (green) Departure Record in your passport, it is possible that your departure was not recorded properly.
If you departed by a commercial air or sea carrier (airlines or cruise ships), your departure from the U.S. can be independently verified, and it is not necessary to take any further action, although holding on to your outbound (from the U.S.) boarding pass - if you still have it - can help facilitate your reentry next time you come back to the United States.
If you departed by land, private vessel or private plane, you will need to take steps to correct the record. Include an explanation letter in English with supporting evidence and retain a copy. If you are a VWP visitor and you left the U.S. by an air or sea carrier, you don't need to worry. If you failed to turn in your I-94 Departure Record, please send it, along with any documentation that proves you left the United States to:
DHS - CBP SBU
1084 South Laurel Road
London, KY 40744
USA
Do not mail to any U.S. Consulate or Embassy, or to any other CBP Office in the USA. To validate departure, CBP will consider a variety of information, including but not limited to:
Original boarding passes you used to depart another country, photocopies of entry or departure stamps in your passport indicating entry to another country after you departed the US (you should copy all passport pages that are not completely blank, and include the biographical page containing your photograph); and photocopies of other supporting evidence, such as: dated pay slips or vouchers from your employer to indicate you worked in another country after you departed the U.S., dated bank records showing transactions to indicate you were in another country after you left the U.S., school records showing attendance at a school outside the U.S. to indicate you were in another country after you left the U.S., and dated credit card receipts, showing your name, but, the credit card number deleted, for purchases made after you left the U.S. to indicate you were in another country after leaving the U.S. Carry it with you the next time you come to the U.S. in case the CBP Officer has any questions about your eligibility to enter. Carrying those materials with you will also allow your record to be corrected at the time of entry if, for some reason, the London, Kentucky office has not yet done so.

Q. I am on B1/B2 in USA. Is it possible to go to Canada to see Niagra Falls and come back to USA using the same I-94?
A. Yes. If taking short trips (30 days or less) to Canada (or even Mexico, or the Caribbean Islands) during the course of your visit to the U.S., hold onto your I-94 or I-94 (W); it should only be turned in when you leave the U.S. to return home.

Q. I am on B1/B2. I had a medical emergency and needed doctor’s care and my I-94 expired. Would the overstay be a problem?
A. Medical emergencies requiring a doctor's care, etc. are not considered unauthorized overstays, however, you will need to bring proof of the cause of your overstay next time you travel to the U.S. in order for it to be forgiven.

Q. I am on B1/B2. My flight back to India got cancelled and I-94 expired. Should I take any precaution so that my next visit and entry into U.S. is smooth?
A. Delays beyond the traveler's control, such as cancelled or delayed flights, are not considered unauthorized overstays. Ask the airline for a letter affirming the delay or a copy of your cancelled boarding pass and bring it with you next time you travel.

F VISA

Q. I want to apply in a school in United States to study. Can I apply in any school?
A. No. The school must be a Student and Exchange Visitor Program (SEVP) certified school.

Q. I am on an F1 visa. What are the requirements if I want to renter the U.S. after travelling abroad for a personal matter?
A. You will require a SEVIS (Student and Exchange Visitor Information System) Form I-20 which is endorsed for travel and signed by DSO; you have been out of the U.S. for less than 5 months; a current passport valid for  at least six months after the date of your reentry or, if you are from one of the countries that have an agreement with the U.S. allowing entry with a passport until the date of expiration; a valid, current visa or you traveled to contiguous country or adjacent island for less than 30 days; and financial information showing proof of necessity funds to cover tuition and living expenses. Carry your most recent I-94, if reentering through a land POE. Note: if you are from a Visa exempt country, you do not need a passport or visa to renter the U.S. from the Western Hemisphere.

Q. I am on F1 visa. Can I renter if I have an expired passport or one that will expire in less than 6 months?
A. You must renew your passport before entering the U.S. In most cases, to enter U.S. you must have a passport that is valid for at least 6 months after the date you enter or renter. However, if you belong to the country that has an agreement with the U.S. that allows you to enter on a current passport up to the actual date of expiration, you should be fine to renter.

Q. I am in U.S. on F1. My F1 student visa has expired and has a terminated record?
A. You can stay in the U.S. on an expired F1 visa as long as you maintain your student status. However, if you are returning home or traveling to a county where automatic revalidation does not apply, you must have a valid visa to enter to return to the U.S. You should ensure that you have all the documentation you need for visa application including a SEVIS Form I-20 endorsed for travel and signed by DSO, original evidence showing proof of necessity funds to cover tuition and living expenses, evidence showing your intention to return to your home country upon program completion. If you have applied for OPT or had OPT approved, carry a copy of your Form I-20 endorsed for OPT and your EAD card if one has been issued. You can apply in a third country for a visa, but will not be able to return to U.S. until visa has been issued.
If your visa has expired and has a terminated record, do not travel outside the U.S. until your SEVIS record shows that you are in active status. If you travel, you may not be able to renew your visa or return to the U.S.

Q. As a continuing F1 student, will I need to pay the SEVIS I-901 fee if I travel outside the U.S.?
A. No

Q. I wish to travel to Canada, Mexico, or one of the islands (other than Cuba) adjacent to the United States. Can I return if my visa is expired?
A. Yes, in most cases. You can usually revalidate an expired visa automatically when returning from a visit of less than 30 days provided you have a valid SEVIS Form I-20 and a valid unexpired Form I-94 (this process is called automatic visa revalidation).

Q. What is automatic visa revalidation? When I am not eligible for automatic visa revalidation?
A. One can usually revalidate an expired visa automatically when returning from a visit of less than 30 days Canada, Mexico, or one of the islands (other than Cuba) adjacent to the United States provided one has a valid SEVIS Form I-20 and a valid unexpired Form I-94. This process is called automatic visa revalidation. Note: This process revalidates your visa (making it eligible for the single trip) but does not renew it.
You will not be eligible for automatic visa revalidation if: you applied for a new visa and it has not been issued; you applied for a new visa and were denied; you have a terminated SEVIS record indicating that you are out of status; you have been out of the U.S. for more than 30 days; and you are a citizen of Cuba/Iran/North Korea/Sudan and Syria.

Q. Which islands are considered as “adjacent islands?”
A. Saint Piere, Miquelon, The Dominican Republic, Haiti, Bermuda, The Bahamas, Barbados, Jamaica, The Windward and Leeward Islands, Trinidad, Martinique, Other British, French, and Netherlands territory or possessions in or bordering the Caribbean sea.

Q. Do I need a valid visa to visit Puerto Rico or the U.S. Virgin Islands?
A. No. You will need a valid SEVIS Form I-20 and a valid unexpired Form I-94. Be sure that you do not have a terminated SEVIS record showing that you are out of status.

Q. I want o travel outside U.S., but my SEVIS record has been terminated. Can I return if I travel?
A. Visit your DSO if you need to travel on a terminated record. If DSO has requested a data fix, DSO will put your help desk number on your Form I-20 and report your pending travel to SEVP. Note: there is no guarantee that you will be readmitted. In most cases, POE will allow you to renter if you are otherwise admissible and your DSO has properly annotated your Form I-20. It is likely, however, you will be sent for a secondary inspection for CBP to determine your eligibility to return.

Q. I am on F1 visa. Can I travel outside U.S. if I have an adjustment of status (Form I-485) pending?
A. You may be considered ineligible to return to the U.S. as an F1 student, because you have exhibited an intent to immigrate which is inconsistent with your nonimmigrant status.

Q. Can I reestablish F1 student status by obtaining a new initial I-20 and reentering the U.S.?
A. Yes. However, you will be considered an initial student for SEVIS purposes. You will have to pay the SEVIS I-901 fee and any time you have accrued towards qualification for training or employment is lost. You must have the new SEVIS I-20 showing that you are entering on a new SEVIS ID number. You should be aware that CBP will determine whether or not to admit you with the new SEVIS I-20. If you did not comply with the terms of your status during a prior stay in U.S., they may decide that you are not eligible to reenter.

Q. I am on F1. Can I renter during the 60 day grace period after finishing my program or after finishing OPT?
A. No

Q. I am on F1. Can I renter if my request for OPT is pending?
A. Yes, you may renter to search for employment.

Q. I am on F1. Can I renter if I left while on OPT?
A. If your OPT has been approved and you depart before you got a job, your OPT ends and you cannot renter unless you have a written job offer. If you have a job, you may travel and reenter to resume work at the same job or you have a written offer for another job.

Q. Can I renew my F1 visa while in United States?
A. No

Q. Can I renew my F1 visa while outside United States in a country other than my home country?
A. Yes, but the Department of State (DOS) recommends that you apply at your home country. If you exit U.S. and apply for a visa you cannot return until DOS issues a new visa. If DOS denies your application, you will not be able to return as a student.

Q. Can I go to Canada and Mexico and apply for a new visa?
A. In some cases you can. If you exit U.S. and apply for a visa you cannot return until DOS issues a new visa. If DOS denies your application, you will not be able to return as a student. Note that applying for a new visa is not the same as automatic visa revalidation.

Q. I am on 1. My spouse and children are on f2. F2. What documents do they need for admission to U.S. after traveling abroad?
A. Dependants of a continuing F1 student, previously admitted into U.S. in F2 status should have a current Form I-20 in their names that certifies admissibility (i.e. DSO signature on page 3 approving travel). Note each dependent must have an individual Form I-20. Besides, a valid visa unless you are from Canada or Bermuda, the primary (F1) must be in active status, and Form I-94 arrival/departure card.

Q. I am on F1 visa. Do my dependants have to travel with me?
A. No. However, you must be maintaining status. If you are in U.S. and has a request for OPT pending or approved, they will need additional documentation – copy of your Form I-20 with the page 3 annotations and/or EAD card and present it at the POE.

Q. I am on F1 status. What should I do to extend/change my status?
A. You may apply for an extension of stay in the United States by submitting an application for extension of stay using Form I-539 before the expiration date on your I-94 USCIS ELIS. Note: Students should contact their DSO official to extend the status.

Q. When is M-1 visa issued?
A. M-1 visa is issued for vocational students wishing to pursue non-academic or vocational studies in a community college or junior college that provides vocational or technical training and awards associate degrees; a vocational high school; a trade school or a school of nonacademic training other than language training.

J VISA

Q. Where do I apply for an Exchange Visitor J-1 visa?
A. you obtain a Form DS-2019 from a Sponsor, you may apply for an exchange visitor J-1 visa at the nearest U.S. embassy or consulate in your country of residence.  Also, if you are married, your spouse and any children can apply for an exchange visitor (J-2) visa when you apply, or join you after you are in the United States if the exchange category in which you are participating permits an accompanying spouse and/or dependents (i.e. regulations prohibit an accompanying spouse in the categories of Camp Counselor, Summer Work Travel, Au pair and Secondary School Student).   In some cases an individual sponsor’s program will not permit a spouse or dependents to accompany their participants.  If you are married and/or have dependents who you wish to bring to the United States with you, inquire about this issue when seeking a sponsor.

Q. What is the purpose of the Exchange Visitor Program?
A. It fosters global understanding through educational and cultural exchanges. All exchange visitors are expected to return to their home country upon completion of the program in order to share their exchange experiences.

Q. Can I apply for a J1 visa extension?
A. Yes. Your program sponsor may extend your program up to its maximum length. If an extension is granted, a new Form DS-2019 will be issued to you reflecting the change.

Q. I got my J1 visa stamped. When can I come to the U.S? How long can I stay after the program ends?
A. You may not arrive 30 days before the program start date shown on DS-2019. You have 30 days grace period to depart U.S. after the end of the program.

Q. What will happen to my J1 status of my exchange program sponsor terminates the program?
A. If program is terminated for just cause, the sponsor will enter the information on SEVIS and you are expected to depart the U.S. immediately. You will not be entitled to the 30 days post completion grace period because you did not successfully complete the program.

Q. What happens to the J1 visa if I withdraw from the exchange program?
A. You must immediately notify your program sponsor. The sponsor will enter the information on SEVIS and you are expected to depart the U.S. immediately. You will not be entitled to the 30 days post completion grace period because you did not successfully complete the program.

Q. My J1 visa expired during the program. What should I do?
A. If your visa expired and you do not plan to travel outside U.S., you need not renew your visa.  If you travel you will need to obtain a new J-1 visa from home country to continue the program.

Q. Can I participate in another program if my current exchange program ends?
A. The current J1 visa is applicable only for your current J1 exchange program ad under your current program sponsor. Upon completion you are expected to depart U.S. If you want to do the second j1 exchange program in a different category with a different program sponsor you must apply for a new visa for your new exchange program from the new j1 exchange sponsor in order to enter U.S. for the second program.

Q. How can I work for another employer other than the program sponsor?
A. A J1 holder may only perform the activity listed on his or her Ds-2019 or as provided for in the regulations for the specific category for which entry was obtained and with the approval of the Sponsor’s Responsible officer.

Q. Do I need a sponsor for getting a J1 visa?
A. Yes. The State Department (DOS) designates US government, academic and private sector entities to conduct educational and cultural exchange programs. To participate in Exchange Visitor program you must be sponsored by one of the designated sponsors of the DOS. Program sponsors are responsible for screening and selecting eligible foreign nationals for the program as well as supporting and monitoring exchange visitors during their stay in United States.

Q. I am a J1 holder. Am I allowed to work?
A. A J1 holder is only allowed to perform the activity listed on his or her DS-2019 and as stated in the regulations for that category of exchange.

Q. Can I apply for the waiver of the two year home residency requirement?
A. Yes. The five bases for recommendation of a waiver are:

  • No Objection Statement;
  • Request by an Interested U.S. Federal Government Agency;
  • Persecution;
  • Exceptional Hardship to a U.S. Citizen (or lawful permanent resident) Spouse or Child of an Exchange Visitor; and
  • Request by a Designated State Public Health Department or its Equivalent (Conrad State 30 Program).

You may only apply under one waiver basis.

Q. Can I extend or transfer my J-1 status after I receive a waiver approval of the Two Year Home Residence Requirement?
A. No, you cannot extend or transfer J-1 status after you have obtained the waiver approval from the State Department, however, time remaining on your current DS-2019 may be utilized. You will need to change your visa status to another category.

Q. Can I travel outside of the U.S. after I have received my waiver approval of the Two Year Home Residence Requirement?
A. Once you or your dependent(s) travel and re-enter the U.S., you or your dependent(s) will be subject to the Two Year Home Residence Requirement all over again.

Q. When should I request for the No Objection Certificate (NOC) in the application process? What I cannot get the NOC?
A. You should request the No Objection Statement from your home country government once you have your waiver case number. You will receive your waiver case number when you complete the online application.
If your home country will not issue a No Objection Statement on your behalf, then you may apply for a waiver recommendation under one of the other bases, if it applies to your situation. Otherwise, if none of the other waiver bases applies, you must fulfill the two-year home-country physical-presence requirement.

Q. Can I apply simultaneously for waiver on persecution and exceptional hardship?
A. No. If you believe that you qualify for a waiver of the two-year home-country physical presence requirement under both persecution and exceptional hardship to your U.S. citizen (or legal permanent resident) spouse or child, you may apply for a waiver recommendation under only one of these two bases.

Q. I am a physician and want to work in a medically underserved area. On which basis should I apply for the waiver? How does U.S. Federal agency waiver differ from Conrad State 30 program?
A. You could apply for a waiver of two-year home-country physical presence requirement through the request of an Interested U.S. Federal Government Agency or through the request of a designated State Public Health Department or its equivalent, also known as the Conrad State 30 Program. You may apply using only one waiver basis, and it must apply to your situation.
A U.S. federal government agency may request Interested Government Agency waivers on behalf of foreign physicians to practice in health professional shortage areas or medically underserved areas; and each designated State Public Health Department, or its equivalent, may make only 30 such waiver requests per year.

Q. My waiver recommendation application was denied. Can I appeal?
A. No. Waiver recommendation applications are thoroughly considered, and the Waiver Review Division does not have a policy to reconsider applications once a final determination has been made.  You may, however, reapply using another basis for waiver, if another basis applies to your situation.

Q. I am the spouse of a J1 holder and am in U.S. on J2? Am I subject to home residency requirement?
A. Yes. A J-2 spouse or child is subject to the same requirements as a J-1 exchange visitor if J1 holder is subject to such requirement.

Q. I am on J1. My spouse and child is on J2? Do they have to apply for the waiver of home residency requirement separately?
A. No. They are automatically included in waiver recommendation application. However, J1 holder needs to list them when completing the application for waiver recommendation.

Q. My spouse is on J1 and does not want to apply for the waiver of home residency requirement? Being on J2 can my child and I apply for the waiver?
A. With a few exceptions (when the J-1 spouse dies or divorces or when a J-2 child reaches age 21), J-2 spouses and children cannot independently apply for waiver recommendations when their J-1 spouses or parents are not applying.

Q. I was a J1 exchange visor and subject to the home residency requirement. I can I serve the two years in U.S. or a third country?
A. Generally, the country which was your country of legal permanent residence when you received your J-1 status is the country to which you must return to fulfill the two-year home-country physical presence requirement. The period of time you spend in the U.S. or a third country after your exchange visitor program has ended may count toward fulfillment of the two-year home-country physical presence requirement, if you are employed by your home country’s government, in its military service, or in its career foreign service and you are serving in a country other than your home country at the behest of your home country’s government. You have to provide a written statement from an official of your home government (through the home country's embassy in Washington, DC) that you were or will be serving in the U.S. or a third country in the service of your home country and at that government's request.

 E3 VISA

Q. I am an Australian Citizen but my spouse and children are not Australian citizens? Are we eligible for E3 visas?
A. The E-3 visa classification applies only to nationals of Australia as well as their spouses and children. The spouse and children need not be Australian citizens.

Q. I am a permanent resident of Australia. Am I eligible for E3 visa?
A. No. E-3 visas are only available for Australian nationals. If you are a new Australian citizen or are in the process of becoming one, please note that you will need to possess an Australian passport by the time of your visa interview.

Q. Can I apply for E3 visa from any U.S. consulate outside Australia?
A. Yes.

Q. Can I get an E3 visa for any occupation?
A. No. It is solely to work in a “specialty occupation.” The definition of specialty occupation is one that requires a theoretical and practical application of a body of specialized knowledge; AND the attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.

Q. I have a degree and have found a job in the related profession in U.S. Do I qualify for E3 visa?
A. The job will qualify provided that it requires a minimum of a bachelor’s degree in a specialty occupation. It is not enough that an E-3 applicant holds a particular degree; the job itself must also require a bachelor-level or higher qualification.

Q. Do I need a license for the specialty occupation?
A. An E-3 applicant must meet academic and occupational requirements, including licensure in Australia where appropriate. In certain cases where a U.S. license or other official permission is required to perform the duties described in the visa application, but such permission or license is not available prior to entry into the United States, the applicant must show that he or she will obtain such licensure within a reasonable period of time following admission to the United States.

Q. I do not have a Bachelor’s degree. Can I qualify for E3 using my work experience?
A. U.S. Code of Federal Regulations 8 CFR 214.2(h)(4)(iii)(D), describes the kind and amount of experience which can be used to establish the equivalency of a university degree. As a guide, three years of professional experience may generally be used as a substitute for each year of university-level education. This means you would need to show 12 years experience in the field you are applying to work in. During visa interviews, applicants should be prepared to provide documentation outlining their work history, education, and training. A consular officer will determine whether the educational and employment information provided meets the eligibility requirements for a U.S. visa.

Q. Can I renew the E3 visa? Is there a limit to the number of times that I could renew?
A. E-3 visa applicants may be admitted for up to a two-year period, which is renewable indefinitely, provided the alien is able to demonstrate that he/she does not intend to remain or work permanently in the United States. There is no limit to the number of E3 visas that an applicant may hold over the course of their life.

Q. I am on an E3 visa. Can I change my employer? Do I have to come back to Australia for this?
A. Yes. Your new employer must file a new Labor Condition Application and a new E-3 visa application. The gap between the jobs must be 10 days or less. Form I-129 is used to apply for an extension of stay or change of employment. You need not come back to Australia for changing the employer.

Q. Can I come to USA on a Visa waiver Program (VWP) to find a job or attend the interview and then apply for E3 visa after returning to Australia?
A. Yes, you can travel on the VWP if you meet the requirements. If you do not meet the VWP requirements, you may be eligible to travel on B1/B2 visa. However, you must leave the United States before applying for E3 visa.

Q. Does my employer have to file I-129 for an E3 visa?
A. No   the employer in the United States is not required to submit a petition to USCIS as a prerequisite for the E3 visa. However, the employer must obtain a Labor Condition Application (LCA), from the department of labor by filing form ETA Form 9035.

Q. I am on an E3 visa. Can my spouse and children work?
A. Yes. E-3 spouses are entitled to work in the United States and may apply for an Employment Authorization Document (Form I-765) through U.S. Citizenship and Immigration Service (USCIS). When completing the form, applicants will need to select the visa type E1/E2, as E3 is not listed as an option.

Q. How long would my E3 visa valid for?
A. The validity of the visa will not exceed the validity period of the LCA, nor will it exceed the reciprocity period of 24 months established by the Department of Homeland Security. Any validity period extensions will be based on LCA extensions.

Q. Is there a limit to the E3 visas that could be issued each year?
A. A maximum of 10,500 E-3 visas are issued annually during each fiscal year, which runs from October 1st to September 30.  Spouses and children of applicants do not count against the quota, nor do applicants extending their E3 visas whilst still in the U.S. and working for the same employer.

Q. I am applying for an E3. Do I have to show that I do not intend to abandon my residence?
A. E-3 status provides for entry on a non-permanent basis into the United States. Similar to E-1 and E-2 visa applicants, the E-3 must satisfy the consular officer that s/he intends to depart upon termination of status.

Q. How long can I stay in USA after my job on E3 visa is over?
A. 10 days.

Q. Can I travel outside USA while on E3 visa?
A. An E-3 visa is a multiple-entry visa, so provided you have not changed employers or extended your status you may travel outside the United States and re-enter on a valid, unexpired E-3 visa. If you have a change in status and exit the United States, you will need to obtain a new E-3 visa at a U.S. Embassy or Consulate abroad before you may re-enter.

H1B VISA

Q. What is an H1B visa?
A. It is a visa for professionals who are coming to work in a specialty occupation. The offered job must be in a ‘specialty occupation’ and must require a bachelor’s degree as a minimum qualification to enter into the job. The worker may qualify based on years of employment experience that are determined to be the equivalent to a bachelor’s degree. The H1B visa allows persons who are offered a position to work for the U.S. employer in their field of occupation.

Q. How do I qualify for an H1B visa?
A. To qualify for H-1B visa, you must: demonstrate that you have the ability to work in the specialty occupation that requires the application of highly specialized knowledge; be coming to the U.S. to earn money or a livelihood working in a professional capacity; have a bachelor’s degree or the equivalent in work experience (usually three years of work experience is counted for each year of missing university education).

Q. What is the H1B cap and how does it work? 
A. The H1B cap is an annual limitation on the number of new visas available for H1B workers. The cap is currently set (by Congress) at 65,000. However, only 58,500 generally are available, as some numbers are set aside specifically for programs for nationals of Chile and Singapore. The 65,000 does not include the 20,000 additional visa numbers available to persons who have earned masters’ or higher degrees from U.S. institutions of higher education.

Q. When should H1B cases for cap-subject cases be filed? How does the timing work?
A. The cap numbers become available at the beginning of each fiscal year that starts on October 1st. However, cases can be filed six months in advance of the requested start date. Therefore, cases can be filed on the preceding April 1st. If the cap is reached by April 5th USCIS may conduct a lottery to select the petitions that will be accepted for processing. If it is not reached by April 5th then USCIS will continue to accept cap cases for the current fiscal year until the quota is reached, or until the end of the fiscal year which is September 30th.

Q. What kinds of employment arrangements qualify as cap exempt?
A. Certain employment is exempt from the need for a cap number. This is referred to as cap exempt. Cap-exempt employment includes employment "by" or "at" universities and their nonprofit affiliates, as well as nonprofit entities related to or affiliated with institutions of higher education, and governmental research organizations. Evidence must be submitted to document qualification for cap exemption. Under the recent interim guidance issued by USCIS for H1B cap exemptions for nonprofits, USCIS will defer to a prior determination of cap exemption if a petitioner can demonstrate that the USCIS previously determined it was cap exempt.

Q. What are the new exemptions to the H-1B cap?
A. The American Competitiveness Act of the 21st Century (AC21) exempts H-1B workers who are employed by or have an offer of employment from: Institutions of higher education; Related or affiliated nonprofit entity; and Nonprofit or government research organization.

Q. I am on L1/L2 visa and would like to apply for an H1B. Am I subject to the cap? What about if I apply it under premium processing?
A. As you are applying for the H1B for the first time you are subject to the cap. The same goes for a student on EAD or H4 applying for the H1B.  Premium processing has nothing to do with the cap. You still would be subject to cap.

Q. Will I be subject to the cap even if USCIS receives my application before the cap is reached?
A. It does not matter whether USCIS received your application before cap is reached. The cap should not have reached when your application is approved.

Q. My employer filed for H1B but is not providing any information. How can I find the details?
A. You cannot get the details from USCIS as the petition was filed by employer. Note that H1B is your employer’s petition and not yours. Only employer or its attorney can contact USCIS.

Q. My H1B is approved for start date of October 1st. When can I apply for the H1B visa at the U.S. Consulate?
A. Within last 90 days of the start date.

Q. My H1B was approved but have not gone for the stamping. The cap is reached. Will I be able to get the stamping?
A. H1B cap is counted by USCIS when approving the H1 visa. You can get the stamping done.

Q. I am already in U.S. with an H1B working for an employer. Am I subject to the H1B cap?
A. It depends. Typically, if one is in H1B status and has already been counted against the H1B cap, s/he is not subject to the H1B cap. Individuals, who have only held H1B status with cap-exempt employers, like universities or nonprofits associated with institutions of higher education, are not deemed to have already been counted against the H1B quota.

Q. What are the new H1B filing exemptions?
A. An amended H-1B petition is not required to be filed when the petitioning employer undergoes a corporate restructuring (merger, acquisition or consolidation), where the new corporate entity succeeds to the interest and obligations of the original petitioning employer and where the terms and conditions of employment remain the same but for the identity of the petitioner.

Q. Can I have multiple H1B sponsors?
A. Yes. But each employer must file a petition.

Q. I would like to pay all the USCIS fees for filing an H1B petition by my employer. Is this allowed? 
A. No. The employer must pay the training fee for the petition, if applicable. Try not to enter into a reimbursement agreement with the employer. The employer must pay the fraud fee, if applicable, and it is recommended that the employer also pay the base filing fee. It is always a better practice for the employer to pay all fees.

Q. What are the determining factors for H1B prevailing wage?
A. The job title, educational and work experience requirements, job duties, and job location.

Q. How long is the H1B visa issued for?
A. H-1B visa is initially granted for three years. The maximum number for H-1B visa is six years. One has to stay outside for at least one year before reentering. However, if a labor certification, I-140 or employment based adjustment application has been filed for more than 365 days, prior to the expiration of his current period of H-1B status, petitioner can request further extensions. Even though the labor certification or I-140 was not filed before 365 days of expiration of the 6 year term but if an I-140 is approved, the worker may still get the extension either for one year or three years depending on certain circumstances. The I-140 does not have to be from the same employer.

Q. I am currently under OPT on F1 visa.  When should I file my H-1B petition?
A. You may choose to file for H-1B status while in your practical training itself. If you file your H-1B petition aiming at the October 1st start date while in the practical training, you will have your H-1B ready by the time you are out of training. If the H-1B petition is filed before the expiry of F-1 you will not be out of status. If your OPT expires before the H-1B is approved, you cannot legally work until the H-1B is approved.

Q. I am a graduate and have finished the entire course work but still have to submit my thesis which I will submit in May. Am I eligible to apply for H1B under the Master’s quota?
A. No. You should have all requirements of the degree completed. It is not necessary to have the physical diploma in one's possession. After completion of all requirements of the degree you may obtain a letter of completion from the school and apply for H1B if the quota is still open. One should not apply for the masters' cap if the degree requirements will not be completely fulfilled by April 1st.

Q. I am currently on F1 OPT work permit.  If my work permit expires, do I have to stop working until the H1B approval comes through? 
A. Yes, you must stop working upon the expiration of the EAD or the OPT if an H1B cap case petition was not filed requesting a change of status prior to the expiration of the completion of the school program or end of OPT indicated on EAD card. If a petition for a change of status is timely filed for an October 1st start date (i.e. filed before the OPT period ends), then one may continue working between the expiration of the employment authorization and start of the H1B status (October 1st). If the petition is denied then one will no longer be eligible to remain and work in the U.S. pursuant to cap gap.
Note: You will not receive a new I-20 or be able to renew your EAD card. You should, however, keep the DSO at the school updated as to the status of the cap case and provide with copies of receipts and approval notices so that the SEVIS records can be properly maintained. Also note, if your H1B petition requesting a change of status is filed within the 60 day grace period that follows the conclusion of OPT employment or the F-1 academic program, you may legally remain in the U.S. until the start of the H1B but will not have employment authorization. If the H1B is denied then you will have to depart the U.S. If you are unable to file the H1B cap case and request a change of status petition prior to the conclusion of your F-1 status or 60 day grace period, you should try to maintain status by enrolling in another program or changing to another nonimmigrant category, such as H-4, in order to remain in the U.S. In these circumstances you should depart the U.S. prior to the expiration of your status and be prepared for consular processing. Upon approval, the U.S. consulate abroad will be notified where you may apply for an H1B visa. If your petition and change-of-status request are approved (from F-1 to H1B), then the approval notice will have an I-94 card attached at the bottom.

Q. I was in H1B status and changed to F-1 status. I am now ready to work in H1B status again. Am I eligible to get six more years of H1B status? 
A. It depends on whether you have completed six years of H1B in U.S.  In such cases, the six-year clock in H1B status is not reset unless one leaves the United States for at least one year. Individuals who previously held H1B status in the last six years, and subsequently left the U.S. for at least a year, generally have the option of either using the time remaining in H1B status without being subject to the cap or applying for another six years of H1B employment subject to the cap.

Q. Can I pursue further university education while on H-1B?
A. Yes.

Q. What is H1B portability and what are it’s’ limitations?
A. H1B portability provisions allows a nonimmigrant worker who was previously issued H-1B visa or otherwise accorded H-1B status to begin working for a new H-1B petitioner when the new employer files (USCIS must have received it) H-1B petition for the alien.  The foreign worker must have been lawfully admitted into the U.S. Subsequent to such lawful admission; the foreign worker must not have been employed without authorization. The new employer must have filed a ‘non-frivolous’ petition while the foreign worker was in authorized period of stay.

Q. When can I begin working for my new employer after filing the H1B petition? 
A. If you are currently in H1B status with another company, then you may be legally allowed to start working for the new employer upon USCIS’ receipt of the H1B petition. Otherwise, you generally must await an approval of the H1B petition and a change of status. If your H1B petition is approved as a change of employer (with I-94 card updated at the bottom of the approval notice), you may continue to work for the new employer until the expiration date on the I-94 card / H1B approval notice. If your H1B petition is approved without an I-94 card, you may have to immediately stop working, depart the United States, apply for an H1B visa at a U.S. consulate in the home country, and finally be readmitted in H1B status before being authorized to continue working for the employer.

Q. I have an H1B approval. Can I work for my employer in anywhere in the United States? 
A. You are only authorized to work at the specific location or in the metropolitan area listed on the Labor Condition Application (LCA) certified with the U.S. Department of Labor (DOL), and filed with the H1B petition. There must be a certified LCA for each location at which you will work, attesting that the employer will comply with the prevailing wage requirement for that local area. DOL regulations and USCIS regulations differ with regard to an H1B employee's change in work sites. The USCIS regulations require an amendment to the H1B that includes certification of the new location and the DOL regulations provide that certifying the LCA prior to the move is sufficient (i.e. an amended petition is not required).

Q. I am on H1B status and would like to file another H1B petition with another employer, but I want to wait before I start work. Is it possible? Is there an obligation on my part to inform my current employer?
A. Yes. There is no obligation to begin work immediately. One must maintain lawful status by working for one of the companies that has an approval for that individual. There is nothing to prevent one from waiting to begin work.  As long as the prior employer has not revoked the H1B petition with the USCIS, or the petition has not expired, it still is legal to be working for the prior company. When to join is up to you and your new employer.
You do not have to tell your current employer about the new filing.

Q. I have an H1B Visa stamped for company A. Can I work for company B?
A. Legally no unless you have an H1B approved or at least filed (USCIS must have received it) by Company B.

Q. My spouse is in H-4 status and has an employer who is willing to give a job. Can she begin working? 
A. No. H-4 is a non-working status. In order to be legally authorized to work in the U.S., she must have the employer file an H1B petition with a request to change of status specifically. If the petition is approved with the change of status (I-94 card attached), she can start working on the start date on the approved petition. If the petition is approved but change of status is not approved (not issued the I-94 card), then she needs to travel abroad to obtain the H1B visa before returning to the U.S to work.

Q. I am currently on L1 status and applied for change of status to H1B. Can I continue to work on L1 after the H1B is approved?
A. If the H1B was approved with the change of status you are not in L1 status anymore. You should not work after the H1B start date on L1 as it constitutes unauthorized employment.

Q. I intend to go for the H1B stamping. What are the documents required to apply for H-1B visa at the consulate?
A. A passport valid at least for six months as on the date of interview; documents sent by your employer including the approval (I-797) notice, complete copy of H-1B petition filed with USCIS, current dated appointment letter from Employer, current Federal Tax Returns of the employer, copy of the official evaluation of your degrees and all original transcripts, and work experience letters, if applicable.

Q. I have an H1B stamped from my old employer and received an H1B approval for the new employer. Do I need a new H1 visa stamping or can I travel with old employer’s H1B stamped visa?
A. If your previous employer’s H1 visa stamp has not expired, you could use that visa stamp along with the new employer’s H1B petition and approval to travel back into U.S.

Q. I have a valid H1B visa in my passport and if I leave the United States, can I come back and work for a different employer? 
A. No, as you must have the new company's H1B petition approved through the USCIS, since each H1B petition is employer specific. This applies to any company for which you might work, whether or not you already hold H1B status. However, if your visa has not expired in the passport, but now has a new H1B petition approved to work for another employer, it is possible, in most cases, to use the old H1B visa and show the new employer’s H1B approval notice to obtain a new I-94 card at the POE. The new I-94 card should have an expiration date that matches the expiration date on the new H1B approval notice.
NOTE: Sometimes POE officials make mistakes and issue an I-94 card valid until the expiration date of the visa. In such case you should request at that time that the officer indicate the correct date.

Q. I just got the H1B approved with start date of October 1st. Can I transfer my H1B to a new employer? What if I started working on October 1st and after 8 weeks decide to change employer and have no pay stubs?
A. It is possible to file for an H1B transfer before October without paystubs from the first employer.
There is no guarantee of approval and risks associated with it are high. USCIS can consider it as benching. If you are on an H1B you need to be paid and will need pay stubs for the H1B transfer.

Q. I am currently employed by Company X. I got a new offer from Company Y and Y filed for H1B transfer which is pending. I have now received a better offer from Company Z and want to join. Do I have to wait for the approval from Company Y to transfer to Company Z?
A. No. Using Company X’s approval and last few pay stubs, and receipt from Company Y, you should be able to get the transfer to Company Z as long as you are in valid status.

Q. I am currently on H1B changing employers. I want to travel to my home country. Is it legal for me to leave?
A. Generally, yes, this may be possible. Safest bet is to avoid travel. The timing of your trip can complicate the situation as there have been changes in USCIS’s interpretations affecting those who travel abroad while a petition is pending.

Q. I got my H1B approved and would like to go for stamping. But I want my spouse and children (dependants) also to do the stamping at the same time. Is it possible? Can my mother be a dependant and get H4 stamping?
A. Yes. It is recommended that dependants accompany you for their visa interview at the same time you got for stamping. Mother cannot get H4 as she is not considered as a dependant of the principal applicant.

Q. I am on an H1. My son wants to study in USA. Should he get an F1?
A. If your son is on an H4 he does not need an F1 to study. Dependants can attend school and study on H4.

Q. I have an appointment for H1B stamping scheduled next week along with my wife. My wife just had a new baby. Can I take my new born baby for the appointment?
A. Yes as consulates makes exception sin such cases. However, you may have to fill an application form for new born baby accompanying its parents for interview.

Q. I was on an F1 and now I have changed to H1B. My wife is still on an F2. Does my wife need to change her status to H4?
A. Yes. If in the U.S. she can apply for change of status using Form I-539. If she is outside USA, she needs to get an H4 stamping on her passport.

Q. Do H4 holders maintain status as long as principal alien maintains status, or are they required to file/maintain their status in change of employer of situations by principal applicant?
A. H4 nonimmigrant classification is not employer specific and hence H4 holders remain in valid status which is contingent on the continued validity of the H1B principal applicant’s status.

Q. I have been laid off recently while on H-1B status. Can I remain legally in the U.S. by changing status to another nonimmigrant visa category?
A. Yes, you may apply for Change of Status to another nonimmigrant visa category for which you qualify. USCIS officers have been allowed to exercise their discretion to grant you another nonimmigrant status, if you apply for change of status.

Q. I am on H1B. What is my status if I am laid-off?
A. If you are laid-off or have resigned from your current employer, you will lose your status immediately. It is advisable to leave the U.S. as soon as possible to avoid legal issues. You will not be able to change your status to any other visa in such case. However, if you decide to follow the petition , the better practice is to request the USCIS for forgiveness for any short period or request for approval of the petition subject to the condition that you would go for consular processing (go out of the country for interview and visa stamping).

Q. I am on H1B. I am still employed by my company but not being paid. What is my status?
A. As per the law, you should get paid from day one you are employed and cannot be without a salary unless you are on unpaid vacation or sick leave. If you are not able to find another employment quickly, it is advisable to leave the U.S. You can complain to Department of labor (DOL) for payment of back wages if your employer refused to pay your salary.

Q. I used to work for company A earlier. I left and joined company B which has not laid me off. My petition with company A is still valid (not revoked). Can I join company A back again and work?
A. Yes. But note that DOL may take a stand that you were never terminated by company A and may ask A to pay back wages for the period you never worked for A.

Q. I am working on H1B and might be laid off soon. I have my EAD. Can I work for a new employer by filing an H1B transfer if I do not want to use my EAD. What If I do not find a job for two months after being laid off?
A. It is advisable to use EAD and secure an employment without your new employer having to file an H1B immediately. You will remain in authorized period of stay since you have an I-485 pending even if you are unable to find employment. As long as you chose to remain in valid H1B status you can have your new employer file the H1B petition and start working as soon as it is submitted.

Q. My employer does not have any project for me and I have not received any pay for last 4 months. Employer forced me to give a letter of absence for 4 months back. Am I out of status?
A. Yes, for the 4 months you were not paid. You must have been working for the petitioning employer and getting paid the salary that was agreed upon as per the Labor Condition Application and H1B petition.

Q. I was on H1B and recently laid off by my employer. My friend told me that until USCIS revoked the H1B petition I could get paid from my employer. Also, if my employer paid a severance package and as part of that package I receive my regular pay checks for another 3 months, I will not be out of status. Is this correct?
A. Your employer is required to pay you only as long as the employer-employee relationship exists and not until USCIS revokes the petition. They need to pay you till your last day of work.
You are considered out of status the day you stopped working. Sometimes USCIS does not look into any gaps of the pay stubs and you may be lucky filing an H1B with a new employer with the pay stubs you received as part of the severance package. But there is no guarantee.

Q. Can I re - enter the U.S. with the same H-1B visa and work with another company?
A. Yes, you may enter the U.S. with an H-1B visa from a different employer to join a new employer, but only if the new employer has filed an H-1B petition with USCIS (USCIS must have received it) on your behalf.

Q. I am on H4 and recently applied for H1. Now company does not have the financial strength to give me a job. Even though the H1B got approved I could not join them. Am I in valid H1 status or should I apply for an H4 again?
A. Since the company no longer has a job for you are no longer in H1B status. You should file H4 using Form I-539 as soon as possible.

Q. I am on H1B and just got terminated. Are there a grace period? What if some new employer files for a new H1B?
A. If you are terminated there is no grace period. It is better for you to change your status to B1/B2 and find a new job. Then change back to H1B once a new employer has a job for you and files the petition.

Q. Can I find a new employer and file a petition while my present employer has laid me off and sent a revocation letter to USCIS?
A. USCIS normally takes time to act on the revocation letter. You should find a new employer who could file a petition for you as soon as possible or you should change your status to some other status like B1/B2. If you did not continuously maintain status you may not be able to get an I-94 authorizing additional stay. In that case you may have to get the visa stamped from abroad.

Q. When is an employer considered H-1B-dependent?
A. An employer is considered H-1B-dependent if it has:
• 25 or fewer full-time equivalent employees and of which at least eight are H-1B nonimmigrant workers; or
• 26 - 50 full-time equivalent employees and of which at least 13 are H-1B nonimmigrant workers; or
• 51 or more full-time equivalent employees of whom15 percent or more are H-1B nonimmigrant workers.

Q. When must an employer determine dependency?
A. The employer must determine dependency when filing either:
• A Labor Condition Application (LCA); or
• A Petition for a Nonimmigrant Worker (Forms I-129/I-129W) based on an LCA; or
• A request for an extension of H-1B status for a nonimmigrant worker based on an LCA.

Q. Is there a simple calculation to determine whether employer is H1B dependent? If an employer must fully calculate dependency, how is this performed?
A. Yes. An employer whose dependency is not readily apparent or is borderline may use the “snap-shot” test. The snap-shot test requires a comparison of the total number of all H-1B workers to the number of the total workforce (including H-1B workers). If a small employer’s snap-shot calculation shows that the employer is dependent, the employer must then fully calculate its dependency status. If a large employer’s calculation exceeds 15% of its workforce, that employer must fully calculate its dependency status.
This full calculation must take into consideration the total number of H-1B workers (a “head count” of both
full-time and part-time workers) and the employer’s total work force in the United States (including both U.S. workers and H-1B workers) and must be measured according to full-time equivalent employees.

Q. What is a “willful violator employer”?
A. “Willful violator” or “willful violator employer,” means an employer that meets all of the following standards:
A finding of violation by the employer is entered in either of the following two types of enforcement proceeding:
A Department of Labor proceeding under the Immigration and Nationality Act (INA) § 212(n)(2); (8 U.S.C. § 1182(n)(2)(C); OR a Department of Justice proceeding under INA § 212(n)(5); (8 U.S.C.§ 1182(n)(5).) 

  • The agency finds that the employer has committed either a willful failure or a misrepresentation of a material fact (two of the Labor Condition Application (LCA) attestations; and  
  • The agency’s finding is entered on or after October 21, 1998.

Q. Are willful violator employers subject to additional attestation requirements?
A. Yes. A willful violator employer must comply with additional attestations under any LCA it files within five years of the willful violation finding. The only exception is when an LCA is filed for and used exclusively for exempt H-1B workers.  Willful violators and H-1B-dependent employers which file an LCA must meet the following additional requirements:

  • The employer has not displaced a U.S. worker at the time of filing an H-1B visa petition;
  • Before placing an H-1B worker at a secondary employer’s work site, the employer has inquired as to the secondary employer’s intent to displace a U.S. worker; 
  • The employer has taken good faith steps to recruit U.S. workers; and 
  • The employer has offered the job to any equally or better qualified U.S. worker who applies for the job for which the H-1B worker is sought.

Note: Willful violators are subject to random investigations by the Department of Labor for a period of up to five years from the date that the employer is determined to be a willful violator. Also, the Wage and Hour Division maintains a current list of such H1-B willful violators.

Q.  Is there any new ‘displacement’ or ‘no lay-off’ attestation rule for to H-1B dependent employers?
A.  Yes. There are two new ‘displacement’ attestations that apply to H-1B dependent employers:
The employer has to attest that it did not displace and will not displace as U.S. worker employed by it within the period beginning 90 days before and ending 90 days after the filing of the H-1B petition based on the Labor Condition Application. It also has to attest that it will not place the H-1B worker with another employer where no such disclosure was made.

Q. My employer is committing H1B violations especially regarding wages and work hours. What should I do?
A. File a complaint against the employer and report the violations to the Department of Labor’s Employer Standards Administration.

Q. What should I do if there is a change in my H1B working conditions?
A. Most changes will not affect your H-1B status as long as you continue to work on H1B for the employer.  You may change H-1B employers without affecting status for which your new H-1B employer must file a new I-129 (Petition for Nonimmigrant Worker), before you start working for him. Any merger/sale of your H-1B employer’s business should not affect your status However, due to the change if you are working in a capacity other than the specialty occupation for which your employer petitioned, it is a violation.

Q. What should I do if my H1B visa has expired?
A. There is no need to be concerned if the visa in your passport has expired and not the H1B status. You would need to apply for another visa at a U.S. consulate abroad the next time you travel outside the United States. Your legal status in the U.S. depends upon the expiration date on the I-94 card, written by the immigration officer at the port of entry. As long as it is valid and you continue to work for the sponsoring employer under the terms of the petition, then you should be fine. If your status has expired then you should contact an attorney immediately your options.

Q. I was on H1B status and my spouse in H-4 status. Spouse did not apply separately to extend her H-4 status and has been out of status for over 6 months. What should she do?
A. She is subject to the 3-year or 10-year bar for failure to maintain lawful status beyond 180 days. She should contact an experienced U.S. immigration attorney immediately.

Q. My wife and I are on H1B status. I would like to change my status to H-4. Is it possible? 
A. Yes. You should file an application with the USCIS to change status from H1B to H-4 for which both your spouse and you must be maintaining current legal status in order for the USCIS to approve the change of status. Also, you could obtain an H-4 visa at a U.S. consulate abroad and use it to reenter the U.S.

Q. Can I start my own company being on an H1b status and work for the new company? 
A. If you wish to work for your own company a new H1B petition must be filed. Note that the H1B petition may not be successful because the petition may not be able to establish the existence of employer / employee relationship. This relationship must be present and often it may be difficult to establish in a closely-held, corporate entity. USCIS will seek evidence of the petitioner's (your company’s) right to control the beneficiary's (your) employment. Based on the new updated guidance from USCIS, it may be possible for an entrepreneur to qualify for H1B classification. Also note that you may be able to passively invest without filing an H1B petition.

Q. Is it true that USCIS closely scrutinizes petitions filed by small IT consulting firms? How can such firms ensure successful H1b approvals?
A. Show that the company has specific H1B-level work for consultants at the time of filing. For consultants working at back office on a project, provide detailed information on the project, including its technical specifications, the end-product, and a business plan / market analysis (potential market targets, expected revenue source, anticipated project length, etc). Ensure that company has other means to pay wages of consultants if the project will not earn revenue in a relatively short period of time. For consultants placed off site / end clients, the location should be stated in the H1B petition as well as in the certified labor condition application (LCA) that accompanies the petition. Besides, provide strong evidence of the specific project that is immediately available to consultant at the time of filing the petition or the requested start date by submitting contracts, purchase/work orders, end client/vendor letters, and other supporting documentation to demonstrate that there is an H1B position available to the consultants and that the consultants services are needed for the entire duration of time requested in the H1B petition.  For more than one work location or project, provide a detailed itinerary/schedule indicating when the consultants would be working on the specific projects at each location. Further, provide complete evidence for each project or assignment that consultants would be assigned in order to evidence that there is a bona fide specialty occupation available for period requested in the LCA.
One cannot generally change locations and file new LCAs in response to a request for evidence (RFE) or while a petition is pending with the USCIS. If there is a location change after a petition is approved, or other details of the employment change, one may need to file an H1B amendment petition.

Q. I am an employer who terminated an H1B employee. Am I responsible for return transportation for the terminated H1B worker? Should I notify USCIS about H-1B employee’s termination of services?
A. As an employer you are liable for “the reasonable costs of return transportation of the alien abroad” if the H-1B worker is terminated before the end of the period for admission. You should notify USCIS of the termination.

Q. Can I immigrate permanently to the U.S. when on H-1B visa?
A. Yes, you may apply for Adjustment of status while on H-1B visa. You may be the beneficiary of an immigrant visa petition, or take other steps towards Lawful Permanent Resident status without affecting H-1B status. Under the law you could exhibit both immigrant and nonimmigrant intent (dual intent) at the same time. During the time your application for Green Card status is pending, you may travel on your H-1B visa rather than obtaining Advance Parole. You could also enter U.S. after travel on advance parole.

H1B1 VISA

Q. Is H1B1 visa a single entry visa? How long is it issued for?
A. It is a multiple entry visa and valid for maximum of 18 months.  

Q. I want to apply for H1b1. What criteria must I meet?
A. The position must be a specialty occupation; that is, a position requiring theoretical and practical application of a body of specialized knowledge.  You must have a post-secondary degree involving at least four years of study in your field of specialization.  In some instances, a combination of specialized training and experience can constitute alternative credentials. You cannot be self-employed or be an independent contractor. Your period of employment in the United States must be temporary and as such, must demonstrate non-immigrant intent. 

Q. Am I required to file any petition with the USCIS to obtain the H1B1? What about LCA?
A. There is no requirement that a petition first be filed with the USCIS. Chileans and Singaporeans may apply directly at a U.S. consulate for an H1B1 visa. A petition may be filed with the USCIS to change status to H1B1, or to extend H1B1 status. As with the H1B visa, a labor condition application (LCA), certified by the U.S. Department of Labor, is required.

H2A/H2B VISA

Q. What is H2A/H2B visa program?
A. Those are programs that allows U.S. employers or U.S. agents who meet specific regulatory requirements to bring foreign nationals to the United States to fill temporary agricultural jobs.

Q. Who can file an H2A petition?
A. A U.S. employer, a U.S. agent as described in the regulations, or an association of U.S. agricultural producers named as a joint employer can file Form I-129, Petition for Nonimmigrant Worker, on a prospective worker’s behalf. Petitioner must submit with the H-2A petition, a single valid temporary labor certification from the U.S. Department of Labor.  A limited exception to this requirement exists in certain “emergent circumstances.”

Q. Who may qualify for an H2A classification?
A. To qualify for H-2A nonimmigrant classification, the petitioner must offer a job that is of a temporary or seasonal nature; demonstrate that there are not sufficient U.S. workers who are able, willing, qualified, and available to do the temporary work; show that the employment of H-2A workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.

Q. Who can file an H2B petition?
A. A U.S. employer, or U.S. agent as described in the regulations, must file Form I-129, Petition for Nonimmigrant Worker, on a prospective worker’s behalf.

Q. Who may qualify for an H2B classification?
A. To qualify for H-2B nonimmigrant classification, the petitioner must establish that there are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work; the employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers; its need for the prospective worker’s services or labor is temporary, regardless of whether the underlying job can be described as temporary.  The employer’s need is considered temporary if it is a(n):
One-time occurrence (Not employed workers to perform the service or labor in the past, and will not need workers to perform the services or labor in the future; or an employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker) OR
Seasonal need (traditionally tied to a season of the year by an event or pattern; and of a recurring nature.  Note: Employment is not seasonal if the period during which the service or labor is needed is  Unpredictable; Subject to change; or Considered a vacation period for the employer's permanent employees)  OR
Peakload need (regularly employs permanent workers to perform the services or labor at the place of employment; needs to temporarily supplement its permanent staff at the place of employment due to a seasonal or short-term demand; and the temporary additions to staff will not become part of the employer's regular operation) OR
Intermittent need (has not employed permanent or full-time workers to perform the services or labor; and occasionally or intermittently needs temporary workers to perform services or labor for short periods).

Q. What is the period of stay under H2A/H2B classification?
A. Generally, USCIS may grant such classifications for up to the period of time authorized on the temporary labor certification.  Such classifications may be extended for qualifying employment in increments of up to 1 year each.  A new, valid temporary labor certification covering the requested time must accompany each extension request.  The maximum period of stay in H-2A/H2-B classifications is 3 years. A person who has held H-2A/H-2B nonimmigrant status for a total of 3 years must depart and remain outside the United States for an uninterrupted period of 3 months before seeking readmission as an H-2A/H-2B nonimmigrant.   Additionally, previous time spent in other H or L classifications counts toward total H-2A/H-2B time.

Q. Are there any employment-related notifications that petitioning employer must comply with USCIS?
A. Yes. Petitioners of H-2A/H-2B workers must notify USCIS within 2 workdays if any of the following occur:
No show: The  worker fails to report to work within 5 work days of the latter of the employment start date on the petition, or the start date established by the employer; 
Absconding: The worker leaves without notice and fails to report for work for 5 consecutive workdays without the consent of the employer; 
Termination: The worker is terminated prior to the completion of the H-2A/H-2B labor or services for which he or she was hired; or
Early Completion: The worker finishes the labor or services for which he or she was hired more than 30 days earlier than the date specified in the petition.

L VISA

Q. I applied for an L1 visa. The consular officer returned my approved petition to U.S. Citizenship and Immigration Services. What does that mean?
A. If, during the interview process, the consular officer had reason to believe that you did not qualify for the visa or that there was misrepresentation in the petition process, the consular officer will return the approved Form I-129 (Petition for a Nonimmigrant Worker) to U.S. Citizenship and Immigration Services (USCIS) of the Department of Homeland Security with the recommendation that the petition be revoked. Your case will remain suspended while USCIS makes a decision, and you will be unable to travel to the United States in the meantime. If USCIS decides to reaffirm its approval of the Form I-129, the Nonimmigrant Visa Unit will contact you and ask you to make an appointment for a follow-up interview with a consular officer.

Q. Can I enter the United States on my L visa before I begin my employment is scheduled to begin?
A. Yes.  You may enter the United States up to 10 days before your employment is authorized to begin as indicated on your Form I-797 (Notice of Approval).  However, you may not work in the United States except during the validity period of the petition.

Q. Can I change employers while in the United States in L nonimmigrant status?
A. Yes.

Q. Can my spouse or child travel with me?
A. Spouses and/or children under the age of 21 can receive a derivative (L-2) visa to accompany you in the United States.

Q. Can my stepchild apply for a derivative (L-2) visa?
A. Yes, if the marriage creating the stepchild relationship occurred before the child’s eighteenth birthday.  Your child’s application materials must include a copy of your marriage certificate establishing the stepchild relationship.

Q. Can my wife on L-2 work in the United States?
A. Yes, spouses in derivative L status may seek employment authorization from U.S. Citizenship and Immigration Services (USCIS) of the Department of Homeland Security.

Q. I am on an L1 visa. Can I transfer or change jobs?
A. Yes. The new employer should file a new petition.

Q. I am an employer. Can I move my L1 employee to another work site? Can I have the employee’s wok location changed?
A. Yes. But you need to show control and management of the employee. The work location can be changed as long as the job duties remain the same. However, you must notify the USCIS by filing an amendment petition.

Q. I was on L1 visa and got laid off?
A. There is no grace period and you are out of status the day you are without work. You may have to immediately find a job or change to B1/B2 or other nonimmigrant category.

Q. As an employer do I have to pay the prevailing wage or pay a certain amount to the transferee?
A. No. However, you may have problems with Department of Labor if you pay lower wages. As an employer you should make sure that reasonable wage depending upon the structure, size and business practices is paid to the transferee.

Q. What is the maximum period that I can be on L1 visa?
A. If you are on L1A, the max is 7 years and if you are on L1B, the max is 5 years. Usually, the initial approval is granted for three years or less. You then need to apply for a renewal.

Q. I am an employer and opened a new branch office in United States. I want to send my employee as a manager to supervise the operations. Since there is only employee in the new branch, will L1A be difficult?
A. It may not be difficult as establishing the new office category has new set of rules. These provisional rules are designed for such new office which at the time of filing is not fully established or able to support a full time manager or executive. You may have to show office lease, business plans etc to show that company will develop in future so as to afford such a managerial position. However, the initial duration of such L1A will be given only for one year.

Q. I am on L1. Can I study?
A. Yes

Q. Is my corporation eligible for a Blanket Petition?
A. Probably yes, if your corporation is a business that frequently uses L1 visas a lot and is a large multinational with 3 or more branches, subsidiaries or affiliates. You need to show one o more of the following: combined US annual sales of $25 million; a US workforce of 1,000; or has received at least 10 L petitions in last 12 months.

R VISA

Q. How long can I work on R1 visa?
A. One can work for five years in R1 status. Usually it is granted in two periods of 30 months.  An R1 visa holder who has spent five years in the United States may not be readmitted to or receive an extension of stay in the United States under the R visa classification, unless the R1 visa holder has resided abroad and has been physically present outside the United States for one year. However, if R1 visa holder was outside of the United States for any period of time during the five years, he or she could recapture the number of days spent outside of the United States.

Q. Does USCIS inspect the religious organization sponsoring the R1 visa?
A. An onsite inspection may be conducted by USCIS as a condition for approving the R1 status to see whether the sponsoring organization is genuine and a job for the religious worker is available. Inspection may also be conducted to see whether the religious worker is indeed working and is getting paid the wage offered.

Q. I am on R1 visa. Can my spouse on R2 visa work?
A. R2 visa holders are not permitted to work.

Q. Can my religious organization file the R1 petition under premium processing?
A. Yes, only if an onsite inspection was conducted on the religious organization by USCIS earlier.

Q. Can I file R1 visa petition on my own?
A. No, you need a religious organization to file it.

Q. Can I file my own religious worker immigrant petition?
A. A U.S. employer, or the religious worker on his or her own behalf must file Form I-360 (Petition for Amerasian, Widow(er), or Special Immigrant), to request special immigrant religious worker classification.

Q. Is there a cap for special immigrant religious workers entering the United States solely for the purpose of carrying on the vocation of a minister?
A. There is no cap.

Q. To qualify as a special immigrant religious worker, must the foreign national be a member of the religious denomination that has a bona fide non-profit religious organization in the United States for at least 2 years IMMEDIATELY/BEFORE the filing of a petition with USCIS.
A. Yes. Note: for R1 nonimmigrant visa, the two years of denominational membership need not be immediately/before the fining of the I-129 petition.

Q. Should the religious worker have been working in position of offered continuously for at least 2 years immediately before the filing of the immigrant petition with USCIS?
A. Yes. However, a break in the continuity of the work during the preceding two years will not affect eligibility so long as the foreign national was still employed as a religious worker; the break did not exceed two years; and the nature of the break was for further religious training or for sabbatical that did not involve unauthorized work in the United States. However, the foreign national must have been a member of the petitioner’s denomination throughout the two years of qualifying employment. Note that for the two years the religious worker must have worked after the age of 14, either abroad or in lawful immigration status in the United States.

Q. My prospective religious organization denomination does not have any specific theological education and does not issue any ordination certificate. What should I submit in lieu of that?
A. The denomination should provide the religious denomination’s requirements for ordination to minister, a list of duties performed by virtue of ordination, the denomination’s levels of ordination, if any, and evidence of the religious worker’s completion of the denomination’s requirements for ordination.

Q. Can I file I-485 (Adjustment of Status) along with the I-360 petition (Petition for Amerasian, Widow(er), or Special Immigrant) even though my position is that of a Minister?
A. No. You can apply it only after the approval of I-360 petition.

Q. Can religious workers other than ministers file I-360 immigrant petition?
A. Yes. However, they should immigrate or adjust to permanent resident status before the sunset date. Current sunset date is September 30, 2015.

TN VISA

Q. What is TN visa?
A. The nonimmigrant NAFTA Professional (TN) visa allows citizens of Canada and Mexico, as NAFTA professionals, to work in the United States in prearranged business activities for U.S. or foreign employers.

Q. I am a permanent resident of Canada/Mexico/ Am I eligible for TN visa?
A. No. Only citizens of Canada/Mexico are eligible for TN visa.

Q. What are the criteria for a citizen of NAFTA to work in a professional occupation in United States?
A. Citizen of a NAFTA country may work in a professional occupation in the U.S. provided the profession is recognized under NAFTA; and the alien possesses the specific criteria for that profession; andthe prospective position requires someone in that professional capacity; andthe alien is going to work for a U.S. employer. If all of these conditions are met, then a TN may be issued.

Q. What is the eligibility for TN non immigrant status?
A. Applicant is a citizen of Canada or Mexico; the profession is on the NAFTA list;  the position in the United States requires a NAFTA professional; the applicant will work in a prearranged full-time or part-time job for an employer; and applicant has the qualifications, meeting the specific requirements, education, and/or experience, of the profession.

Q. Is self employment allowed under TN visa?
A. No

Q. I am a Canadian citizen. Do I require a TN visa? If so, where do I get it?
A. Canadian citizens usually do not need a visa as a NAFTA Professional, although a visa can be issued to qualified Canadian TN visa applicants upon request.  A Canadian citizen without a TN visa can apply for TN nonimmigrant status at a U.S. port of entry.

Q. When is a NAFTA Professional (TN) visa required for a Canadian citizen?
A. A Canadian without TN nonimmigrant status, who resides in a third country with a non-Canadian spouse and/or child(ren), and who plans to enter the United States as a NAFTA professional at the same time as the family member(s), will need a TN visa in order for the family members to be eligible to apply for derivative TD nonimmigrant visa(s). 

Q. I am a Mexican citizen. Do I require a TN visa? If so, where do I get it?
A. Mexican citizens require TN visas to request admission to the United States in this status. You have to apply at the U.S. embassy or consulate in Mexico.

Q. I am a professional and would like to come to US and work. Do I require a bachelor’s degree?
A. It depends on the profession you plan to work in United States. With some exceptions, each profession requires a baccalaureate degree as an entry-level requirement. If a baccalaureate is required, experience cannot be substituted for that degree. In some professions, an alternative to a bachelor's degree is listed. For some professions, experience is required in addition to the degree.

Q. Can I stay permanently in USA on TN visa? Will I face any issues if I want to apply for a green card in United States?
A. "TN" status will only be granted if the period of stay is temporary. You cannot exhibit immigrant intent. If CBP or consular officer comes to know that you have an immigrant petition filed, you may not get a TN visa or may not be eligible to get an extension.

Q. Am I eligible for an extension of sty under TN visa?
A. Yes. Applications for extension of stay are processed by the USCIS. When applying for them, Canadian itizens have two options: they may have their employer file a form at the closest regional Bureau of Citizenship and Immigration Services office. This option does not require leaving the U.S. OR Canadians may return to Canada to re-apply at the port of entry with the same documentation that is required for an original application. Either option is permissible.

K VISA

Q. What is a K-1 visa?
A. The fiancé(e) K-1 nonimmigrant visa is for the foreign-citizen fiancé(e) of a United States (U.S.) citizen. The K-1 visa permits the foreign-citizen fiancé(e) to travel to the United States and marry his or her U.S. citizen sponsor within 90 days of arrival. The foreign-citizen will then apply for adjustment of status to a permanent resident (LPR) with the Department of Homeland Security’s (DHS) U.S. Citizenship and Immigration Services (USCIS). 

Q. What is a fiancé’(e)?
A. Under U.S. immigration law, a foreign-citizen fiancé(e) of a U.S. citizen is the recipient of an approved Petition for Alien Fiancé(e), Form I-129F, who has been issued a nonimmigrant K-1 visa for travel to the United States in order to marry his or her U.S. citizen fiancé(e). Both the U.S. citizen and the K-1 visa applicant must have been legally free to marry at the time the petition was filed and must have remained so thereafter. The marriage must be legally possible according to laws of the U.S. state in which the marriage will take place.

Q. I am a U.S. citizen. Is it required that I should have met my fiancé(e) for filing the petition?
A. Yes. In general, the foreign-citizen fiancé(e) and you must have met in person within the past two years. USCIS may grant an exception to this requirement, based on extreme hardship for the U.S. citizen sponsor to personally meet the foreign-citizen fiancé(e), or, for example, if it is contrary in the U.S. citizen sponsor’s or foreign-citizen fiancé(e)’s culture for a man and woman to meet before marriage.

Q. I am a U.S. citizen. What is the Form that I have to file for my fiancé(e)? Can I file it in US consulate abroad?
A. You, the U.S. citizen sponsor, must file Form I-129F, Petition for Alien Fiancé(e), with the USCIS office that serves the area where you live. Form I-129F cannot be filed at a U.S. Embassy, Consulate, or USCIS office abroad.

Q. I am on K1. How do I bring my children to United States?
A. Eligible children of K-1 visa applicants may apply for K-2 visas. Separate applications must be submitted for each K visa applicant, and each K visa applicant must pay the visa application fee.

Q. Am I required to do the medical examination before the consulate can issue me a K1 visa?
A. Yes. Before the issuance of an immigrant or K visa, every applicant, regardless of age, must undergo a medical examination which must be performed by an authorized panel physician. You will be provided instructions regarding medical examinations from the U.S. Embassy or Consulate where you will apply for your visa, including information on authorized panel physicians. If possible get the vaccinations required. Although such vaccinations are not required for K visa issuance, they will be required when adjusting status to that of legal permanent resident following your marriage. Take the vaccination at the time of the medical examination.

Q. Is my U.S. citizen sponsor required to show proof of financial support for issuance of my k1 visa?
A. Yes. You will be required to present evidence to the Consular Officer that you will not become a public charge in the U.S. You may present evidence that you are able to financially support yourself or that your U.S. citizen sponsor is able to provide support. The Consular Officer may request that a Form I-134, Affidavit of Support be submitted by the U.S. citizen sponsor. Note: Your U.S. citizen sponsor will need to submit Form I-864 to USCIS with the application for your adjustment of status to that of legal permanent resident following the marriage.

Q. Do the same Income requirements apply to Form I-134 as to Form I-864?
A. No. The 125 percent of the federal poverty guideline minimum income requirement, the most recent year's tax return, and other requirements only apply when Form I-864 is needed. Applicants presenting Form I-134 will need to show that their U.S. sponsor's income is 100 percent of the federal poverty guidelines.

Q. My K1 visa expired – Can it be extended?
A. I-129F petition is valid for four months from the date of approval by USCIS. A Consular Officer can extend the validity of the petition if it expires before visa processing is completed.

Q. What next after I receive my K-1 Fiancé(e) Visa?
A. If you are issued a K-1 visa, the Consular Officer will give you your passport containing the K-1 visa and a sealed packet containing the civil documents you provided, plus other documents prepared by the U.S. Embassy or Consulate. It is important that you do not open the sealed packet. Only the DHS immigration official should open this packet when you enter the United States. As the K-1 visa holder, you must enter the U.S. either before or at the same time as any qualifying children holding K-2 visas. With your visa, you can apply for a single admission at a U.S. port of entry within the validity of the visa, which will be a maximum of 6 months from the date of issuance. You must marry your U.S. citizen sponsor within 90 days of your entry into the United States.

Q. Does my U.S. Citizen sponsor need to file separate petitions for my children?
A. No. Your eligible children may apply for K-2 visas based on the approval of Form I-129F, Petition for Alien Fiancé(e), that your U.S. citizen sponsor filed on your behalf. He or she must list the children on the petition. Separate visa applications must be submitted for each K-2 visa applicant, and each applicant must pay the K visa application fee. After your marriage, your children will need to file separately from you for adjustment of status. They cannot be included on your application for adjustment of status.

Q. Are my children on K2 required to travel with me?
A. Your children may travel with (accompany) you to the United States or travel later (follow-to-join). Like you, your children must travel within the validity of their K-2 visas. Separate petitions are not required if the children accompany or follow to join you within one year from the date of issuance of your K-1 visa. If they want to travel later than one year from the date your K-1 visa was issued, they will not be eligible to receive K-2 visas, and separate immigrant visa petitions will be required. If your child has a valid K-2 visa and you have already adjusted status to that of permanent resident, your child may still travel on the K-2 visa.

Q. After I enter on K1 visa am I eligible to work?
A. After admission, you may immediately apply for permission to work by filing a Form I-765, Application for Employment Authorization with the USCIS Service Center having jurisdiction over your place of residence. Such work authorization would be valid for only 90 days after entry. However, you would also be eligible to apply for an extended work authorization at the same time when you file for permanent residence. In this case, you would file Form I-765 together with Form I-485 as soon as you marry.

Q. What happens if we do not marry within 90 days?
A. Fiancé(e) status automatically expires after 90 days. It cannot be extended. Your fiancé(e) should leave the United States at the end of the 90 days if you do not marry. If your fiancé(e) does not depart, he or she will be in violation of U.S. immigration law. This may result in removal (deportation) and/or could affect future eligibility for U.S. immigration benefits.

Q. What is a K3/K4 visa?
A. The visa issued for the alien spouse of a U.S. citizen and his or her minor children to be admitted to the United States as non-immigrants while they are awaiting the adjudication of a Form I-130 Petition for Alien Relative.

Q. What are the eligibility criteria for issuance of K3/K4 visa? What if I have a step child?
A. To be eligible for a K-3 nonimmigrant visa, an individual must be married to a U.S. citizen and have a pending Form I-130, Petition for Alien Relative, filed by the U.S. citizen spouse on his or her behalf.
Your child may be eligible for a K-4 visa if he or she is unmarried, under 21, and is the child of a qualified K-3 nonimmigrant visa applicant.  In order for a K-4 who is a step-child of a USC to immigrate as a relative of the USC step-parent (whether through adjustment of status in the United States or an immigrant visa abroad) the marriage between his or her parent and the USC must have occurred before his or her 18th birthday.

Q. Do I have to file a separate Form I-129F for my child to obtain a K4? What about Form I-130?
A. You need to file a Form I-130 on behalf of your non-citizen spouse with the Chicago Lockbox. You will then receive a Form I-797, Notice of Action, indicating that USCIS has received the Form I-130. Note: Form I-130 does not need to be filed on behalf of the child of a K-3 beneficiary in order to obtain a K-4 visa. However, it is advisable that the USC petitioner file a separate I-130 on the child’s behalf concurrently with the I-130 that he files for the spouse.   Form I-130 does, however, need to be filed on behalf of the child of a K-3 beneficiary in order for the child to be eligible for permanent resident status.  

Q. I am on K3 and my child is on K4. Our visas will expire within 2 weeks. Are we eligible to apply for employment authorization?
A. Upon admission, K-3 and K-4 nonimmigrant visa holders may obtain employment authorization.  They can obtain evidence of eligibility to work legally in the United States by filing Form I-765, Application for Employment Authorization. Upon filing an application for adjustment of status, K-3 and K-4 nonimmigrant visa holders may also apply for employment authorization based on that pending application even if the K-3 or K-4 nonimmigrant status expires.

Q. What are the limitations on K3/K4 visas?
A. When the K-3’s I-130 reaches the Department of State, an immigrant visa is immediately available to him or her such that he or she and his or her children are no longer eligible for K-3/K-4 nonimmigrant status, but rather must immigrate as lawful permanent residents.  If the K-4 does not have an approved I-130 at the Department of State at that time, he or she will be ineligible to immigrate with the spouse of the USC. Even though there is no requirement that a separate Form I-130 be filed on the child’s behalf for the purposes of obtaining a K4 visa, it is advisable that the USC petitioner file a separate I-130 on the child’s behalf concurrently with the I-130 that he files for the spouse.   The Department of Homeland Security only admits K-3 or K-4 nonimmigrant visas holders for a 2-year period. K-3 or K-4 nonimmigrant visa holders may apply to USCIS for an extension of status in 2-year increments as long as the marriage-based I-130 visa petition or a corresponding application for adjustment of status or visa application is still pending adjudication.

Q. Would my K3 visa automatically expire?
A. Yes your authorized stay automatically expires 30 days after any of the following events: if USCIS denies or revokes the Form I-130 visa petition, USCIS denies a Form I-485 filed by you or Department of State denies your immigrant visa application and your marriage is terminated through divorce or annulment. Note: A K-4’s authorized stay automatically expires when the K3’s status expires.

Q. What happens if my child turns 21 or gets married before obtaining immigrant status?
A. Your child on K-4 visa will be admitted to the United States for 2 years or until the day before his or her 21st birthday, whichever is shorter. Child’s K-4 status will expire when he or she turns 21. If you as a USC petitioner filed a Form I-130 for the child before child turned 21, he or she may continue to be eligible for adjustment of status under the Child Status Protection Act.
The K-4 nonimmigrant’s status automatically expires 30 days after he or she marries.

Q. I am on K3 and my child is on K4 visa? Do I have to apply for advance parole if I have to travel outside USA?
A. You and your child may travel outside the United States and return using K-3 or K-4 nonimmigrant visa. The only time advance parole is necessary is if the K-3 or K-4 nonimmigrant visa has expired and each of have an adjustment of status application that remains pending.

Q. I am on K3 and my child o K4 visa. Can we change our status in the United States?
A. No. You and your child cannot change status in the United States to another nonimmigrant visa category.

Q. What happens to my K3 visa and my child’s K4 visa after approval of our adjustment of status?
A. If adjustment of status is approved, both of you will become a lawful permanent resident of the United States. If, at the time of approval, your marriage is less than 2 years old, the K-3 or K-4’s permanent resident status is issued on a conditional basis. You and your spouse will then be required to file a Form I-751, Petition to Remove Conditions of Residence within the 90 day period prior to the expiration date on the green card.

A/G/NATO VISA

Q. What is required for a consulate to issue an A1 or A2 visa?
A. One must be travelling to the United States on behalf of their national government to engage solely in official activities for that government. The particular duties or services that will be performed must be governmental in character or nature.

Q. Am I required to attend an interview at the US Consulate for obtaining an A1 or A2 visa?
A. Embassies and consulates generally do not require an interview for those applying for A1 and A2 visas. However, a consular officer can request an interview. Note hat personal employees, attendants and servants of A visa holders, that is, applicants for A3 visas are required to be interviewed.

Q. Ca I adjust status from a diplomatic visa status?
A. Yes. Section 13 of the INA allows it. You must show that you entered the United States as an A-1 or A-2; duties were diplomatic or semi-diplomatic in nature; there is a compelling reason why you or your immediate family cannot return to the country which accredited you as a diplomat; you are a person of good moral character; you are admissible to the United States for permanent residence; and granting you a green card would be in the national interest of the United States. While applying for adjustment of status, you must submit Form I-566 (Interagency Record of Request) and Form I-508 (Waiver of Rights, Privileges, Exemptions, and Immunities).

Q. How is immediate family member defined under G visa?
A. Immediate family members are defined as the spouse and unmarried sons and daughters of any age who are members of the principal applicant's household, even if they are studying in another location. They also include close relatives of the principal applicant or spouse related by blood, marriage or adoption and are not members of some other household, will reside regularly in the household of the principal applicant and are recognized as dependents by the sending Government. 

Q. Does an immediate family member, who is not a member of the principal applicant’s household qualify for a diplomatic visa?
A. No, if a relative is not a member of the principal applicant's household, then they do not meet the definition of "immediate family" member. This is true, even if for example, a niece/nephew will reside with the principal applicant in the U.S. in order to attend school. In such cases, she/he must seek the appropriate visa for the purpose of their travel.

Q. What if the family member has until recently been a member of another household but has joined the household of the principal applicant?
A. The fact that your relative has been, even in the recent past, a member of some other household does not preclude him or her from being considered a member of your household. You must be able to show that you are financially responsible for the new family member. The relative must show that they are joining your household out of necessity, rather than convenience.

Q. My son is adopted and is at boarding school.  Does he qualify as a member of the immediate household?
A. Children who have completed a full and final adoption by the principal applicant are considered immediate family members. Your son is an immediate relative, even though he or she is absent from the household for part of the year while attending boarding school or college.

Q. I am a diplomat and hold a diplomatic passport. I am traveling to the U.S. as a tourist. Do I require a diplomatic visa or can I travel visa free?
A. Only heads of state or government qualify for A visas regardless of the purpose of their visit. Visa classification for others is determined by the purpose of their travel. If traveling as a tourist, you will need a B visa or if eligible, you may travel visa free under the Visa waiver Program.

Q. I am traveling for less than 90 days on behalf of my government. I belong to the visa waiver country. Can I travel visa free under the Visa waiver program?
A. If you are traveling to the United States as an official representative of your government, you require a diplomatic visa.

Q. Do I qualify for a diplomatic visa if I am a local government official?
A. Diplomatic visa (A visa) status only pertains to officials traveling to the United States on behalf of their national government. Local government officials traveling on behalf of their state, province, borough or other local entity do not qualify for A visas.

Q. Do I qualify for a diplomatic visa if I am in the armed forces? What if I am a police officer travelling on official business?
A. If you are from a non-NATO country and the military education or training you are to receive is being provided at a U.S. military facility (service academy, fort, base, other military installation), you may qualify for an A visa regardless of the duration of the training. If the military training you are to receive is U.S. Government-sponsored or licensed but is not provided at a U.S. military facility, you may qualify for an A visa only if the period of training is less than 90 days.  Note: NATO military personnel qualify for NATO visas.
If you are a member of a national law enforcement or police agency coming to the U.S. on behalf of the national government for an official purpose (for example, to interview witnesses or in connection with an investigation), or coming for U.S. Government-sponsored training in connection with your official duties, you may qualify for an A visa.

Q. I am going for an international conference/meeting sponsored by an international organization. Which visa do I require- A or G?
A. If you are being sent by your government to a meeting or conference which is sponsored by an international organization, you will generally require a G visa, unless your visit will also include other official activities, such as bilateral meetings in Washington D.C. with U.S. Government officials, which would require an A visa. Additionally, a head of state, head of government, cabinet member, presiding officer of a national legislative body, or member of the highest judicial tribunal qualifies for A visa classification to represent his/her government at international meetings or conferences which is sponsored by an international organization.

Q. What type of visa do I require to travel to attend a course in U.S. offered by IMF/World Bank Economic Institute (WB)?
A. If you have been nominated by a member government of the IMF/WB to attend the course, you are eligible for a G visa. When applying for the visa, you are required to furnish the letter of acceptance from the IMF/WB. The request for the visa must be made or supported by the nominating foreign government. Attendees who are not nominated by a member government require B visas.

Q. Can dependants of A/G/NATO visa holders work on derivative status?
A. Dependents of A-1, A-2, G-1, G-3, G-4 and NATO1-6 visa holders may be eligible to work in the United States on derivative A, G or NATO visas. An application for employment must be made on the form I-566 to the Department of State’s Office of Protocol through the office, mission, or organization, which employs the principal alien. If the Department's recommendation is favorable, the form I-566 will be forwarded to the Department of Homeland Security, United States Citizenship and Immigration Services (USCIS) for action. If the application is approved, USCIS will transmit the employment authorization to the mission, or international organization. In the case of NATO dependents, USCIS employment authorization will be transmitted to NATO/HQ SACT.

C VISA

Q. I am on C visa status. I am eligible to change or extend my stay in United States?
A. No. You must depart the US on or before the I-94 expires.

D VISA

Q. I am on D visa status. I am eligible to change or extend my stay in United States?
A. No. You must depart the US on or before the I-94 expires. Usually, you must depart U.S. on a vessel within 29 days. You are not considered to have departed the U.S. until the vessel you are on travels to international waters destined to a foreign port.

E VISA

Q. My country does not maintain a treaty of commerce and navigation with United States. Am I eligible to apply for an E1/E2 visa?
A. No. It is only for citizens of countries which maintain treaty of commerce and navigation with United States.

Q. Should the trading firm for which I plan to come (on E1 visa) as a Treaty Trader to the United States must have nationality of the treaty country?
A. Yes and that too persons with treaty country’s nationality must own at least 50% of the enterprise.

Q. For a treaty investor (E2) visa, can the investor be a person, partnership or corporation?
A. Yes but if it is a business, at least 50% of the business must be owned by persons with the treaty county’s nationality.

Q. I am on E1/E2 visa with my wife. Can we extend our stay in the United States? If so, what Form should we use?
A. Yes. Your employer should file Form I-129, Petition for Nonimmigrant Worker, before the date your I-94 expires. For your spouse, use Form I-539. File I-129 and I-539 together so that they may be adjudicated at the same time.

I VISA

Q. What is a Media (I) visa?
A. Media (I) visas are for representatives of the foreign media, including members of the press, radio, film, and print industries, traveling temporarily to the United States to work in their profession engaged in informational or educational media activities, essential to the foreign media function.

Q. re there any requirements for the activities under I visa?
A. Activities in the United States while on a media (I) visa must be for a media organization having its home office in a foreign country. Activities in the United States must be informational in nature and generally associated with the news gathering process and reporting on current events.

Q. I would like to work in the profession of media in United States. Can I travel on B1 or under the Visa waiver Program?
A. Representatives of the foreign media who will work in their profession as media or journalists while in the United States cannot travel on the Visa Waiver Program or on visitor (B) visas.

Q. My spouse and child is on I visa. Can they study?
A. Yes they can without applying for F-1 nonimmigrant student visa.

O VISA

Q. What is O-1 visa?
A. The O-1 nonimmigrant visa is for the individual who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements.

Q. Who is eligible for O-1A visa?
A. O-1A is for individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television industry).

Q. Who is eligible for O-1B visa?
A. O-1B is for individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry.

Q. Who is eligible for O-2 visa?
A. O-2 is for individuals who will accompany an O-1, artist or athlete, to assist in a specific event or performance.  For an O-1A, the O-2’s assistance must be an “integral part” of the O-1A’s activity. For an O-1B, the O-2’s assistance must be “essential” to the completion of the O-1B’s production. The O-2 worker has critical skills and experience with the O-1 that cannot be readily performed by a U.S. worker and which are essential to the successful performance of the O-1

Q. What is O-3 visa?
A. O-3 visa is for individuals who are the spouse or children of O-1’s and O-2’s.

Q. What are the eligibility criteria to qualify for an O-1 visa?
A. To qualify for an O-1 visa, the beneficiary must demonstrate extraordinary ability by sustained national or international acclaim and must be coming temporarily to the United States to continue work in the area of extraordinary ability. Extraordinary ability in the fields of science, education, business or athletics means a level of expertise indicating that the person is one of the small percentage who has risen to the very top of the field of endeavor. Extraordinary ability in the field of arts means distinction.  Distinction means a high level of achievement in the field of the arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts.

Q. What are the eligibility criteria to qualify for an O-1 visa in the motion picture or television industry?
A. The beneficiary must demonstrate extraordinary achievement evidenced by a degree of skill and recognition significantly above that ordinarily encountered to the extent the person is recognized as outstanding, notable or leading in the motion picture and/or television field.

Q. What are the evidentiary criteria that need to be met for O-1A?
A. Evidence that the beneficiary has received a major, internationally-recognized award, such as a Nobel Prize, or evidence of at least (3) three of the following:  

  • Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor
  • Membership in associations in the field for which classification is sought which require outstanding achievements, as judged by recognized national or international experts in the field
  • Published material in professional or major trade publications, newspapers or other major media about the beneficiary and the beneficiary’s work in the field for which classification is sought
  • Original scientific, scholarly, or business-related contributions of major significance in the field
  • Authorship of scholarly articles in professional journals or other major media in the field for which classification is sought
  • A high salary or other remuneration for services as evidenced by contracts or other reliable evidence
  • Participation on a panel, or individually, as a judge of the work of others in the same or in a field of specialization allied to that field for which classification is sought
  • Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation

If the above standards do not readily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence in order to establish eligibility.

Q. What are the evidentiary criteria that need to be met for O-1B?
A. Evidence that the beneficiary has received, or been nominated for, significant national or international awards or prizes in the particular field, such as an Academy Award, Emmy, Grammy or Director's Guild Award, or evidence of at least (3) three of the following:  

  • Performed and will perform services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts or endorsements
  • Achieved national or international recognition for achievements, as shown by critical reviews or other published materials by or about the beneficiary in major newspapers, trade journals, magazines, or other publications
  • Performed and will perform in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation as evidenced by articles in newspapers, trade journals, publications, or testimonials.
  • A record of major commercial or critically acclaimed successes, as shown by such indicators as title, rating or standing in the field, box office receipts, motion picture or television ratings and other occupational achievements reported in trade journals, major newspapers or other publications
  • Received significant recognition for achievements from organizations, critics, government agencies or other recognized experts in the field in which the beneficiary is engaged, with the testimonials clearly indicating the author's authority, expertise and knowledge of the beneficiary's achievements
  • A high salary or other substantial remuneration for services in relation to others in the field, as shown by contracts or other reliable evidence

If the above standards do not readily apply to the beneficiary’s occupation in the arts, the petitioner may submit comparable evidence in order to establish eligibility (this exception does not apply to the motion picture or television industry).

Q. What documentary evidence should my petitioner submit to process an O-1 application?
A. The petitioner must submit Form I-129, Petition for Nonimmigrant Worker, and the documentary evidence like Consultation (a written advisory opinion from a peer group (including labor organizations) or a person designated by the group with expertise in the beneficiary’s area of ability), Contract between petitioner and beneficiary, and Itineraries.

Q. Are there exceptions to the documentary evidence of consultation?
A. If the petitioner can demonstrate that an appropriate peer group, including a labor organization, do not exist the decision will be based on the evidence of record. A consultation may be waived for an alien with extraordinary ability in the field of arts if the alien seeks readmission to perform similar services within 2 years of the date of a previous consultation.  Petitioners should submit a waiver request and a copy of the previous consultation with the petition.

Q. Does the contract have to be a written contract?
A. Usually, USCIS requires a written contract between the petitioner and the beneficiary or a summary of the terms of the oral agreement under which the beneficiary will be employed. Oral contract evidence may include but is not limited to: emails between the contractual parties, a written summation of the terms of the agreement, or any other evidence which demonstrates that an oral agreement was created. The summary of the terms of the oral agreement must contain what was offered by the employer and what was accepted by the employee and does not have to be signed by both parties to establish the oral agreement.  However, it must document the terms of the employment offered and that the beneficiary has agreed to the offer.

Q. What should the itinerary include?
A. An explanation of the nature of the events or activities, the beginning and ending dates for the events or activities, and a copy of any itinerary for the events or activities, if applicable. The petitioner must establish that there are events or activities in the beneficiary’s field of extraordinary ability for the validity period requested, e.g. an itinerary for a tour or a series of events.

Q. Can petitioner be an agent of an employer?
A. The U.S. Agent may be the actual employer of the beneficiary, the representative of both the employer and the beneficiary, or a person or entity authorized by the employer to act for, or in place of, the employer as its agent.

Q. What are the requirements for the Agent while Performing the Function of an Employer?
A. I-129 filed by an agent performing the function of an employer must include the contractual agreement between the agent and the beneficiary which specifies the wage offered and other terms and conditions of employment. This can be a summary of the terms of the oral agreement or a written contract. A contract is not required between the beneficiary and the entities that will ultimately use the beneficiary’s services. If alien works in more than one location agent must include an itinerary with the dates and locations of work. The itinerary should at a minimum indicate what type of work the beneficiary will be engaged, where, and when this work will take place. A contractual agreement must be provided with the petition to determine whether the agent is functioning as the employer of the beneficiary.   It should establish the type of working relationship between the agent and beneficiary and should clearly lay out how the beneficiary will be paid.  In totality, if the terms and conditions of employment show a level of control over the beneficiary’s work being relinquished to the agent, then the agent may establish that it is performing the function of an employer.   The petition must be submitted with evidence regarding the wage offered.  However, the regulations do not contain a prevailing wage requirement.  Furthermore, no particular wage structure is required.  A detailed description of the wage offered or fee structure and that the wage offered/ fee structure was agreed upon may satisfy this requirement.

Q. I am agent filing for a foreign employer. What documentary evidence must I submit?
A. You must submit the minimum general documentary evidence such as copies of any written contracts between the foreign employer and the beneficiary or a summary of the terms of the oral agreement under which the beneficiary will be employed, an explanation of the nature of the events or activities, the beginning and ending dates for the events or activities, and a copy of any itinerary for the events or activities, and a written advisory opinion from the appropriate consulting entity or entities. The regulations do not require any additional documentary requirements for an agent filing on behalf of a foreign employer. However, it is the foreign employer who is responsible for complying with all applicable employer sanctions provisions.

Q. I got my O visa. When can I travel to USA? How long can I stay on O visa? Can I apply for an extension?
A. You may be admitted to the United States for the validity period of the petition, plus a period of up to 10 days before the validity period begins and 10 days after the validity period ends. Your initial period of stay allowed is for three years. For extension of stay, USCIS will determine time necessary to accomplish the initial event or activity in increments of up to 1 year.

Q. I am on O visa. Can I change employers?
A. Yes. Your new employer must file a Form I-129 with the USCIS.

Q. What should I do if there are material changes in my employment terms and conditions?
A. The petitioner must file an amended petition on Form I-129 with the Service Center where the original petition was filed.

Q. I an O visa non immigrant. My employer terminated me. Am I eligible for return transportation costs from my employer?
A. If you are terminated for reasons other than voluntary resignation, the employer must pay for the reasonable cost of your return transportation to your last place of residence before entering into the United States. If an agent filed the petition for the employer, the agent and the employer are equally responsible for paying these costs.

Q. I am on O-3 visa. Can I work?
A. No.

 

P VISA 

Q. What is the difference between P1, P2 and P3 visas?
A. The P-1 visa classification provides for admission into the United States of certain athletes, entertainers and artists, and essential support personnel. The P-2 visa classification provides for the admission into the United States of an artist or entertainer, either an individual or group, involved in a reciprocal exchange program between an organization or organizations in the United States and one or more foreign countries which provides for the temporary exchange of artists and entertainers. The P-3 visa classification provides for the admission into the United States of an artist or entertainer, either an individual or group, to perform, teach, or coach under a program that is culturally unique.

Q. What are the eligibility criteria for P1B visa?
A. At least 75 percent of the members of the group must have had a substantial and sustained relationship with the group for at least one year. The entertainment group must be internationally recognized, having a high level of achievement in a field evidenced by a degree of skill and recognition substantially above that ordinarily encountered. The reputation of the group, not the individual achievements of its members or the acclaim of a particular production, is essential.

Q. I am an individual entertainer and not part of a group. Will I be eligible for P1B visa?
A. Individual entertainers not performing as part of a group are not eligible for this visa classification.

Q. Can I enter the United States on my P visa before I begin my employment is scheduled to begin?
A. Yes.  You may enter the United States up to 10 days before your employment is authorized to begin as     indicated on your Form I-797 (Notice of Approval).  However, you may not work in the United States except during the validity period of the petition.

Q. Can my stepchild apply for a derivative (P-4) visa?
A. If the marriage creating the stepchild relationship occurred before the child’s 18th birthday, the child may apply for a derivative visa.  Your child’s application materials must include a copy of your marriage certificate establishing the stepchild relationship.

Q. Can I study in the United States on a derivative (P-4) visa?
A. Yes.  There is no requirement that the spouse and/or children of a P visa holder apply for a student (F-1) visa if they wish to study in the United States.  They may study on their derivative P visas.

Q. Can I work in the United States on a derivative (P-4) visa?
A. No.  Individuals in P-4 status cannot work while in the United States. 

Q. Can I change employers while in the United States in P nonimmigrant status?
A. Yes. New employer has to file a new petition.

Q. What should do if I am fired from my job in the United States?
A. You must immediately report any change in your employment status to the USCIS Service Center with jurisdiction over the area where you are employed.

Q.  I am on P1 visa. Can my dependents on P4 visa take up employment? What about study?
A. Your dependents may not engage in employment, but may attend school or college.

Q. I am on P1B visa. Can I change my employer?
A. Yes as long as the new employer files a new petition. 

Q VISA

Q. What is Q (cultural Exchange) visa?
A. The Q nonimmigrant exchange program is for the purpose of providing practical training and employment, and to share the history, culture, and traditions of your home country with the United States.

Q. What is difference between J and Q visa?
A. The J nonimmigrant visa is for educational and cultural exchange programs designated by the Department of State, Bureau of Consular Affairs. The Q nonimmigrant visa is for international cultural exchange programs designated by USCIS.

Q. I am only 17 years old. Am I eligible for Q visa?
A. You must be at least 18 years old and be able to communicate effectively about the cultural attributes of your country to get the Q visa.

Q. How long can I stay on my Q visa? Can I come back immediately after I depart on Q visa?
A. Initial period stay allowed is for 15 months. After you complete your Q cultural exchange program, you are afforded 30 days to depart the United States.  You are required to spend one year outside the United States before you can apply for participation in the Q cultural exchange program again.

S VISA

Q. What is an “S” visa for?
A. An S visa is for a nonimmigrant individual who has assisted a law enforcement agency as a witness or informant.

Q. I am on “S” visa. Can I apply for green card on my own?
A. Only a federal or state law enforcement agency or a U.S. Attorney’s office may submit a request for permanent residence as an S nonimmigrant on behalf of you. The law enforcement agency may submit an application for permanent residence (a green card) on your behalf when you have completed the terms and conditions of your S visa. The requesting agency must also be the same agency that initially requested your S nonimmigrant status.

Q. Are family members of the principal S nonimmigrant also eligible to apply for a green card?
A. Qualifying family members of the principal S nonimmigrant may also be eligible to apply for a green card.

Q. What are steps involved in green card process?
A. S nonimmigrant must go through a two step process to apply for a green card. First step is to File Form I-854, Interagency Alien Witness and Informant Record. This form is to be completed by the federal or state law enforcement agency or U.S. Attorney’s Office that initially filed for the S nonimmigrant status on behalf of the individual. Evidence that the witness or informant has fulfilled his or her obligations as an S nonimmigrant and provided information about all potential grounds of inadmissibility must be included with the completed and signed Form I-854 application. The second step is to file I-485, Application to Register Permanent Residence or Adjust Status after Form I-854 is approved.

Q. Which category should I check mark in Form I-485?
A. You should check box “h” in part 2 of the I-485 application and write “S Nonimmigrant” or “S-Qualified Family Member” on the line next to box “h.”

T VISA

Q. Who is eligible for “T” visa?
A. One who is or were a victim of trafficking, as defined by law and is in the United States or at a port of entry due to trafficking and complies with any reasonable request from a law enforcement agency for assistance in the investigation or prosecution of human trafficking as well as demonstrate that he or she would suffer extreme hardship involving unusual and severe harm if he or she were removed from the United States. Also, the individual must show that he or she is admissible to the United States.

Q. Is there a waiver available if I am inadmissible?
A. Yes. You may apply for a waiver on a Form I-192, Application for Advance Permission to Enter as a Non-Immigrant.

U VISA

Q. What is “U” visa?
A. The U visa is an immigration benefit that can be sought by victims of certain crimes who are currently assisting or have previously assisted law enforcement in the investigation or prosecution of a crime, or who are likely to be “helpful” in the investigation or prosecution of criminal activity.

Q. What Does “Helpful” or “enough Cooperation” in the Investigation or Prosecution Mean?
A. Helpfulness means the victim was, is, or is likely to be assisting law enforcement in the investigation or prosecution of the qualifying criminal activity of which he or she is a victim. This includes: being helpful and providing assistance when reasonably requested and ongoing responsibility on the part of the victim to be helpful. The duty to remain helpful to law enforcement remains even after a U visa is granted, and those victims who unreasonably refuse to provide assistance after the U visa has been granted may have the visa revoked by USCIS.

Q. What is “U” visa certification Form I-918B?
A. It is a certification from the law enforcement agency that essentially states to USCIS that the petitioner was a victim of a qualifying crime; the petitioner has specific knowledge and details of crime; and the petitioner has been, is being, or is likely to be helpful to law enforcement in the detection, investigation, or prosecution of the qualifying crime.

Q. What happens to the certification if the investigation by law enforcement agency does not yield any results?
A. A current investigation, the filing of charges, a prosecution or conviction are not required to sign the law enforcement certification. Many instances may occur where the victim has reported a crime, but an arrest or prosecution cannot take place due to evidentiary or other circumstances. Examples of this include, but are not limited to, when the perpetrator has fled or is otherwise no longer in the jurisdiction, the perpetrator cannot be identified, or the perpetrator has been deported by federal law enforcement officials. There is no statute of limitations on signing the law enforcement certification. A law enforcement certification can even be submitted for a victim in a closed case.

Q. How many “U” visas are available each year?
A. 10,000

Q. Who is eligible to receive a “U” visa?
A. An individual may be eligible for a U visa if:

  • He/she is the victim of qualifying criminal activity.
  • He/she has suffered substantial physical or mental abuse as a result of having been a victim of criminal activity.
  • He/she has information about the criminal activity. If under the age of 16 or unable to provide information due to a disability, a parent, guardian, or next friend may possess the information about the crime on the individual’s behalf.
  • He/she was helpful, is being helpful, or is likely to be helpful to law enforcement in the investigation or prosecution of the crime. If under the age of 16 or unable to provide information due to a disability, a parent, guardian, or next friend may assist law enforcement on behalf of the individual.
  • The crime occurred in the United States or violated U.S. laws
  • He/she is admissible to the United States.

Q. Is there a waiver available for inadmissibility?
A. Yes. If not admissible, an individual may apply for a waiver on a Form I-192, Application for Advance Permission to Enter as a Non-Immigrant.

Q. I am on “U” visa. Can I work? What about my family members? Am I eligible to apply for green card?
A. You can live and work in the United States for no longer than 4 years. You may apply to adjust status to become a lawful permanent resident (green card) after three years of continuous presence in the U.S. while having a U visa. You will have to meet other eligibility requirements for a green card as well, including the ongoing duty to cooperate with law enforcement and not unreasonably refuse to assist with the investigation or prosecution of the qualifying crime. Your immediate family members may also be eligible to live and work in the United States as derivative U visa recipients based on their relationship with the principal recipient.

Q. Which law enforcement agencies are eligible to make certifications?
A. A federal, state, local law enforcement agency, prosecutor, judge, or other authority that has the responsibility for the investigation or prosecution of a qualifying crime or criminal activity is eligible to sign Form I-918B. This includes agencies with criminal investigative jurisdiction in their respective areas of expertise, including but not limited to child and adult protective services, the Equal Employment Opportunity Commission, and Federal and State Departments of Labor.

Q. Who in the law enforcement agency can sign Form I-918B?
A. A certifying official(s) can sign Form I-918B. The U visa regulation defines a certifying official as: “[t]he head of the certifying agency, or any person(s) in a supervisory role who has been specifically designated by the head of the certifying agency to issue U nonimmigrant status certifications on behalf of that agency.” 8 C.F.R. § 214.14(a)(3).

Q. What if the victim or witness in my case has been detained or ordered removed for an immigration violation?
A. Individuals currently in removal proceedings or with final orders of removal may still apply for a U visa. Absent special circumstances or aggravating factors, it is against U.S. Immigration and Customs Enforcement (ICE) policy to initiate removal proceedings against an individual known to be the immediate victim or witness to a crime. To avoid deterring individuals from reporting crimes, ICE has issued guidance to remind ICE officers, special agents, and attorneys to exercise all appropriate discretion on a case-by-case basis when making detention and enforcement decisions in the cases of victims of crime, witnesses to crime, and individuals pursuing legitimate civil rights complaints. Particular attention should be paid to victims of domestic violence, human trafficking, or other serious crimes, and witnesses involved in pending criminal investigations or prosecutions.

Q. Can I complete a U visa certification for a victim who is no longer in the United States?
A. Yes. While the crime must have occurred in the United States, its territories, or possessions, or have violated U.S. law, victims do not need to be present in the U.S. in order to be eligible for a U visa and may apply from outside the United States.

Q. Does the victim have to testify to be eligible for certification?
A. There is no requirement that an arrest, prosecution, or conviction occur for someone to be eligible for a U visa. While there is no requirement for the victim to testify at a trial to be eligible for a U visa, if the victim is requested to testify, he or she cannot unreasonably refuse to cooperate with law enforcement. If the victim unreasonably refuses to testify, the law enforcement agency should notify USCIS and may withdraw the previously signed Form I-918B.

Q. Can a victim’s petition still be approved if the defendant is acquitted or accepted a plea to a lesser charge, or if the case was dismissed?
A. Yes. As mentioned above, a conviction is not required for someone to be eligible for a U visa. Plea agreements and dismissals do not negatively impact the victim’s eligibility. As long as the victim has been helpful in the investigation or prosecution of the qualifying criminal activity and meets all other eligibility requirements, the victim may petition for a U visa.

Q. If one crime is initially investigated but a different crime is eventually prosecuted, does that have an impact on the certification?
A. A law enforcement certification is valid regardless of whether the initial crime being investigated is different from the crime that is eventually prosecuted. As long as the person is a victim of a qualifying criminal activity, that person may be eligible for a U visa.

Q. If the victim is a child, why would a non-citizen parent ask for a certification stating that the parent was the victim?
A. In many cases where a child is the victim of a crime, the child may not be able to provide law enforcement with adequate assistance. This may be due to the child’s age or trauma suffered, among various other reasons. Parents of a child victim play a crucial role in detecting and reporting crimes, providing information and assisting law enforcement in the investigation or prosecution of the crime committed against the child. Recognizing this, an alien parent can apply to be recognized as an “indirect victim” if the principal victim is a child under 21 years of age and is incompetent or incapacitated to provide assistance to law enforcement in the investigation or prosecution of the crime committed against the child or if the child is deceased due to murder or manslaughter. The immigration status of the child victim is not relevant to this determination; Form I-918B can be submitted for an alien parent whether or not the child is a U.S. citizen or a non-citizen.
The parent(s), in order to qualify as an “indirect victim”, must meet the remaining eligibility requirements for a U visa to receive an approval. Therefore, the “indirect victim” parents must have information about the crime, and must be helpful to law enforcement in the investigation or prosecution of the crime and the crime must have occurred in the United States or violated U.S. law.

Q. What constitutes “possesses information”?
A. To be eligible for a U visa, the victim of the crime must possess credible and reliable information establishing that the victim has knowledge of the details of the criminal activity or events leading up to the criminal activity, including specific facts about the crime/victimization leading law enforcement to determine that the victim has assisted, is assisting, or is likely to provide assistance in the investigation or prosecution of the crime.

Q. Will USCIS approve a victim with a criminal history?
A. USCIS may deny a U visa petition for a variety of reasons including if the victim’s criminal history warrants such a decision. Denials may occur in cases where a victim has multiple arrests, convictions, or has a serious or violent criminal arrest record. USCIS will also deny a petition if the victim was complicit or culpable in the qualifying criminal activity of which he or she claims the victimization occurred. The fact that a victim has a criminal history does not automatically preclude approval of U status. USCIS has broad authority to waive most inadmissibility issues, including criminal issues. Each U visa petition is evaluated on a case-by-case basis.