Non-Immigrant Visas

Steven Tuan Pham, Esq.

A non-immigrant visa permits an alien to come to the United States for a specific purpose under a limited time period. The alien must demonstrate that he or she does not have the intent to remain in the United States after the end of the visa period. Often, that person must demonstrate that he or she has family members and sources financial income in the home country to demonstrate non-immigrant intent. The presumption under immigration and naturalization law is that every visa applicant is an intending immigrant. Therefore, nonimmigrant visa applicants must overcome this presumption by demonstrating that the alien intends to depart the United States once the status ends.

What is the difference between a nonimmigrant visa verses nonimmigrant visa status?

Often, people are confused with respect to the differences between a "non-immigrant visa" and a "non-immigrant visa status". A "visa" can only be issued at the U.S. Consular office in the home country under the U.S. Department of States. A visa, which is usually harder to obtain, allows the alien to freely come into the United States, and once they are here, to freely travel outside the U.S. and come back within the time permitted in the visa. The visa can be issued as a one-time entry or for multiple entries within a specific amount of time. For example, a visitor for pleasure visa (a B-2 Visa) may be issued for multiple entries for up to 10 years. On the other hand, a "visa status" is obtained when the person is in the United States. The person may have a different non-immigrant visa to come to the U.S.; and while here in the U.S., the person apply to "change his/her status" into a different category. The I-539 change of status application is being applied to the U.S. Citizenship and Immigration Services (USCIS), which operates under the U.S. Department of Homeland Security. The person who obtains a "visa status," and not an actual visa, can remain in the United States and has all the rights that a person who has an actual visa issued by the Consular office in their home country. However, the person who has a visa-status, and not an actual visa, may not leave the country without losing his/her status. If the visa-status holder leaves the country, he/she will have to apply at the Consular Office in their home country, or at a third country where they happen to be, for a visa before being able to come back to the U.S. The following example will illustrate the information stated above

Mr. TRAN who is a French national, with French citizenship, came to the U.S. from Paris. He obtained a B-1 Visa (visitor for business purposes) from the U.S. Consular in Paris. His B-1 visa was a multiple-entry visa and was valid for 5 years. After arriving in the United States for three months, he decided to invest in the United States by purchasing a restaurant, valued at $200,000.00. Because his B-1 visa only allows him to remain in the United States for a maximum of 180 days (approximately 6 months), he wanted to change his status to a different category to remain in the U.S. and manage his investment. He consulted an immigration attorney and the attorney applied for Mr. TRAN to change his status from a B1 Visa to an E-2 Treaty Investor visa-status with the USCIS. Subsequently, Mr. TRAN received an approval notice that allows him to stay in the U.S. for a period of two (2) years to manage his investment as an E-2 Treaty Investor status. After one year, Mr. TRAN received an emergency phone call from his wife, stating that his brother was in critical condition. Because it was an emergency, Mr. TRAN did not consult with his attorney before leaving the U.S. After his brother's condition improved, he wanted to come back to the U.S. However, he was not allowed to enter the U.S. at the port of entry because his E-2 visa status was considered "abandoned" when he left the U.S. Notice, he only had a visa status when he received the approval from USCIS. USCIS cannot issue a visa. In this scenario, what are MR. TRAN's options to reenter the U.S. to manage his investments?

The first option in this scenario is for Mr. TRAN to use his B1 Visa, which was issued for multiple entries for 5 years, to come back into the United States. Although Mr. TRAN "changed his status" while he was in the U.S., the B-1 visa remains valid so long as the visa is still current (the date has not expired). After coming into the U.S., Mr. TRAN may reapply to readjust his status as an E-2 Treaty Investor.

The second option is Mr. TRAN to go back to his home country, France, and apply for an E-2 Treaty Investor Visa with the U.S. Consulate in Paris. If an E-2 visa is issued to Mr. TRAN, he can use the visa to enter and to leave the U.S. as much as he likes, so long as the visa is current. In addition, his wife and unmarried children under 21 may also come with him as E-2 dependents. Once here, his children may attend schools and his wife can obtain work authorization.

What is a visa-waiver and can an alien change status from a "visa-waiver" to a different category?

Under the scenario above, theoretically, Mr. TRAN also has a third option and that is to enter the U.S. under the Visa Waiver program; though, it is not an option that an attorney would advise. Visa Waivers allow nationals from certain countries to enter the U.S. without having a visa. The alien, at the port of entry, will be issued an I-94, which will be stamped and allowed to enter the U.S. for the maximum period of 90 days. Remaining in the U.S. over the 90 days period is considered an "out of status." If the alien is out of status for 180 days or more, he/she is considered to have "over-stayed." If the alien over-stayed for 180 days or more, the alien will be barred from the U.S for three (3) years. The alien will be barred for ten (10) years bar if the over-stay is one (1) year or more. However, if a person entered the U.S. under a visa waiver, the person may NOT "change status" to any other visa category. The reasoning is that the person has no visa (i.e. visa waiver), and because the person has no visa, he cannot be changed from one status to another. Therefore, if Mr. TRAN entered under the visa waiver, he will have to leave the U.S. within 90 days and come back under a B-1 visitor visa or under an E-2 Treaty Investor visa. (Note, The over-stay and the bar from reentry are applicable to all non-immigrants in the U.S., not just for visa waiver applicants).

If you need qualified legal assistance in obtaining a non-immigrant visa, contact the Houston Immigration Attorneys at Smith & Garg today! We are Global Immigration Attorneys Who Make Connections!