US Immigration Rules & Visa Guide

Under the US immigration rules, foreign nationals planning to travel to the US, either to stay on a temporary basis or to settle permanently, have to hold appropriate permission to seek permission for entry at the border. This usually requires the individual to apply for a US visa.

The main body of legislation governing US immigration is the Immigration and Naturalization Act (INA). The immigration rules are then implemented through a system of routes and programs designed to achieve the following aims:

• To reunify families through family-based immigration.
• To admit non-US nationals who have valuable skills through economic immigration.
• To provide protection to refugees and asylum seekers through humanitarian relief routes.
• To promote diversity across the nation through the Diversity Visa Program.

US immigration rules are, however, complex and subject to change in line with the prevailing political mandate and environmental circumstances such as the pandemic. In this guide, we summarise the key tenets of the system and what they mean for foreign nationals travelling to the US.

 

Visa Waiver Program

Foreign nationals from Visa Waiver countries may be eligible to travel to the US through the Visa Waiver Program instead of obtaining a visa, under the following conditions:

• You are a national of a Visa Waiver country.
• You hold ESTA authorization.
• You will travel by a US approved air or sea carrier.
• Your visit is for the purposes of tourism, short-term medical treatment or business, in keeping with a B1, B2 or B1/B2 visa.
• Your visit will last no more than 90 days.
• You hold a valid e-passport.

 

Temporary, nonimmigrant visas

The US permits admission of qualifying non-US nationals citizens on a temporary basis under the nonimmigrant visa scheme.

Nonimmigrant visas generally fall into one of the following categories, each with their own specific eligibility and application requirements. Given the time-limited duration of a nonimmigrant visa, applicants in most cases will need to satisfy the adjudicating officer of their intention to leave the US by the date of visa expiry. This would usually involve evidencing through documentation ‘sufficient ties’ to their country of residence.

 

Tourism and short-term medical treatment

The B2 visa allows a foreign national to visit the US for the purposes of tourism or short-term medical treatment.

Tourism activities covered by a B2 visa include:

• taking a holiday in the US
• visiting family and friends who live in the US
• unpaid participation in an amateur event, such as a sports contest
• attending a short study course that does not lead to a qualification

 
A B2 visa may also be used to visit the US for medical treatment which can be completed within 90 days. Further conditions relating to the use of a B2 visa for medical treatment include:

• A person suffering from certain contagious diseases will not be granted a visa.
• In the case of organ donation, you must provide evidence that you are a suitable donor.
• The treatment must not be available in your home country.
• You must provide a letter from your doctor, outlining your medical condition and treatment.
• You must provide evidence of acceptance from the US doctor or establishment who will provide the medical treatment.
• You must prove that you can afford any costs incurred during your time in the US.

 

Business trips

The B1 visa allows a foreign national to visit the US on a temporary basis for business purposes.

Business activities covered include:

• attending business meetings, conventions or conferences
• negotiating a contract with a customer
• installing or repairing machinery
• speaking engagements at a US university for 9 days or less
• visiting prospective business premises in the US
• taking part in a voluntary service programme which benefits a US local community

 
The B1 visa can’t be used for employment purposes.

 

Combination B1/B2 visa

In practice, overseas Consulates and Embassies processing US visitor visas will typically issue the B1/B2 combination visa, since this permits the holder to carry out permissible activities relating to business and tourism during the period of stay.

 

Temporary employment

If you intend to take up temporary employment in the US, it will be necessary to obtain the relevant temporary worker visa.

The temporary worker visa is appropriate for employment that is short-term and is lasts for a definite or fixed amount of time.

This category covers:

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

 
Each of the above visas require that the related US employer files a petition with USCIS.

Members of the foreign press and media visiting the US for work purposes should apply for an I visa.

The R visa is suitable for a foreign national who wishes to visit the US to work in a religious capacity on a short-term basis.

 

Treaty Trader or Treaty Investor

The E1 Treaty Trader visa is used by foreign nationals who wish to carry out substantial trade between the US and a trading firm in their home country.

The E2 Treaty Investor visa is used by entrepreneurs and business owners wishing to operate a business in the US, through setting up a new enterprise or investing in an existing US business.

Any person seeking an E1 or E2 visa must be a national of, or their employing business must bear the nationality of, a country which has a treaty of commerce and navigation with the US.

 

Study and exchange

This category covers F1, M1 and J1 visas.

To study in the US, you must hold the relevant student visa.

The F1 visa covers:

• university or college
• high school
• private elementary school
• seminary
• conservatory
• any other academic institution,

 
The M1 visa is appropriate for vocational studies and to attend a non-academic institution.

Where a student wishes to visit the US to participate in an exchange programme, they must hold a J1 visa.

 

Diplomats and other government officials

Foreign diplomats and other government officials visiting the US on behalf of their country’s government must use either an A1 or A2 visa.

The A1 visa is appropriate for a head of state, government minster or European Union delegation representative. The A2 visa is suitable for full-time government employees, foreign military members stationed at a US military base, or the staff of a European Union delegation representative.

 

Immigrant visas

Lawful permanent residency (i.e. Green Card status) allows a foreign national to work and live lawfully and permanently in the United States. Lawful permanent residents (LPRs) are eligible to apply for nearly all jobs (i.e., jobs not legitimately restricted to U.S. citizens) and can remain in the country even if they are unemployed.

The INA stipulates an annual worldwide limit of 675,000 permanent immigrants, with certain exceptions for close family members.

US immigration laws require any foreign national seeking an immigrant visa to be sponsored by an employer, a family member who is already a US citizen, or a US lawful permanent resident.

Immigrant visas fall into the following categories:

• Family, where you are:
  • the spouse, unmarried child under 21 or parent of a US citizen, or
  • the spouse, unmarried child under 21 or unmarried son/daughter of a US lawful permanent resident, or
  • the son/daughter over 21 or the sibling of a US citizen
• Fiancé or Fiancée, where you are engaged to a US citizen
• Employment, where you have a sponsoring employer and fall into one of the following categories:
  • First preference – aliens with extraordinary ability, outstanding professors and researchers, certain multinational executives and manager
  • Second preference – members of the professions, and aliens of exceptional ability in the sciences, arts or business
  • Third preference – professionals, skilled workers and unskilled workers whose skills are in short supply in the US
  • Fourth preference – certain special immigrants
  • Fifth preference – immigrant investors
• Special immigrants including:
  • Iraqi or Afghan translators and interpreters
  • Iraqis or Afghans who were employed by or on behalf of the US government
  • religious workers
• Returning resident where a US lawful permanent resident or conditional resident has been away from the US for over a year, or two years with a re-entry permit
• Diversity Visa Lottery for a limited number of immigrant visas made available to nationals from countries that have a historically low immigration rate to the US

 

Becoming a US citizen

Once you have held the status of US lawful permanent resident for 5 years, with continuous residence for those 5 years with no time spent abroad for 6 months or longer, you may be eligible to apply for US citizenship.

This will depend on factors such as:

• being at least 18 years old
• having a good moral character
• having a good level of English and civics knowledge
• a willingness to form an attachment with the US constitution
• and other factors relating to your personal circumstances

 

Need assistance?

Applications across all classifications face considerable adjudication scrutiny. This demands travellers ensure any application is completed thoroughly with comprehensive supporting documents, and that potential issues of inadmissibility are fully considered.

As specialists in US immigration, NNU’s London-based attorneys can advise on all aspects of US entry requirements. Contact us for advice on eligibility and the relevant application process to be followed for travel to the US.

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