Category Archives: Non-immigrant Visas

Non-immigrant Visas, Of Interest, R-1 visa

Understanding the Difference Between a Visa and Status in the US — Part 1

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I have people tell me all the time that their visa expires in six months, when what they really mean is that their stay here in the US expires in six months.   Likewise, I have had people say that they can stay here ten years because they have a ten-year tourist visa.  What is a visa?   And what does it have to do with how long you can stay in the US.

I will try to explain.   Like everything else in immigration law, it is a complicated concept.   A visa has nothing to do with how long you can stay in the US.   A visa is simply advanced permission to come to the border and ask if you can come in.   The idea behind a visa is that you have gone to an Embassy and they have said “We have reviewed this person, and, in our opinion, he is qualified to enter the US, and so we are giving him advanced permission to request permission to enter the US in the requested category.”  If they give you a 45-day visa, you have 45 days to come and request permission to enter the US in that category.   If they give you a 90-day visa, you have 90 days to come and request permission to enter the US in that category.   If they give you a ten-year visa, you have ten years to come and request permission to enter the US in that category.

In addition, they will give you either a one-entry visa or a multiple-entry visa.   A one-entry visa is just that — you are allowed to use it to enter the US only one time, and it must, of course, be within the validity period of that visa.    A multiple entry visa can be used for an unlimited number of entries during the validity period of the visa.

It is also important to remember that a visa is in no way a guarantee that you will be able to enter the US.   A visa only means that the Consulate talked to you and reviewed your documents and determined, to their satisfaction, that you are qualified to enter the US under the requested category.   It is not a determination that you are qualified and should be admitted.

When you come to the border, the border guard will make his own determination.   He has complete authority to decide that, regardless of the Consulate’s approval, he does not think that you are qualified to enter.   He will understand that the visa means that the Consulate reviewed your case, but he has complete discretion to ask his own questions and require his own evidence, and to decide that he does not agree; to decide that he thinks you do not qualify to enter under that visa.

Then, if he does let you in, he is the one who decides how long you may stay.  It has nothing to do with the length of time that the visa is valid.

I will continue this discussion next week, focusing on the “Status” side of the discussion.

I hope this is interesting and helpful.   Remember that this is not legal advice.  It is just a summary of certain aspects of immigration law which may or may not apply to your situation.   I encourage you to consult an attorney if you think any of this may apply to your situation.

Gunnar Armstrong

Non-immigrant Visas, R-1 visa

Premium Processing

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The USCIS offers a Premium Processing Service for those willing to pay extra fees in regard to certain I-129 and I-140 petitions.   This Premium Processing Service is quite useful if you can afford it.  If you are filing for an R-1, the new Premium Processing fee is $1,500.  Other visa categories have higher Premium Processing fee.   If you pay the $1,590 extra filing fee, the USCIS will give you a money back guarantee to process your petition in 15 days — basically two weeks.   Within those two weeks, they will either approve it, deny it, or issue a request for further evidence.    The Request for Evidence, will, of course, delay things until you can provide the remainder of the evidence, but, once you return it to the USCIS, they will then have 15 business days to either approve or deny.   So, in that case, the three weeks turns into six weeks days (plus however long you take to gather and submit the requested additional evidence), but it is still much faster than waiting five to ten months for an approval.

Premium Processing is not available for all services provided by the USCIS.  Unfortunately, it is quite limited.  It is only available for certain I-129 and I-140 employer-filed petitions.   It will cover R-1 petitions, but only if there had previously been a successful USCIS site inspection at the location where the work will be performed.    It will not cover Religious Worker Green Card petitions (which are filed on form I-360).   Premium processing does not cover family-based immigrant petitions or any naturalization applications.

Important Note:  The fifteen-day processing fee only covers the work done by USCIS.   If you need to then apply for a visa at an Embassy, that process at the Embassy or Consulate is completely outside of the 15-day guarantee from the USCIS.

Is it worth it?  If you qualify for it, and have the money, I have generally strongly recommended getting Premium Processing.   The reason is quite simple.   The workers at USCIS are under pressure to be picky.   And, regardless of how well you document a petition, they can always find a reason to send out a time-consuming Request for Evidence.    However, the workers in the Premium Processing division are also under pressure to get these approved in fifteen days.  They don’t have time to be picky — to look for potential problems just to demonstrate that they are earning their pay.   They don’t want to send out a Request for Evidence unless it is clearly necessary, because that doubles their workload.   So the result is that if you pay the extra money for Premium Processing, you not only get a quick answer, but you usually get spared the aggravation of an unnecessary Request for Evidence.

However, lately, like everything else, Premium Processing has been becoming less reliable.   I have experienced them improperly rejecting Requests for Premium Processing of many R-1 petitions (this does not deny the petition — it is just that they refuse to do the petition in 15 days).   They will say that they do not have a successful site visit, when, in fact they have done a successful site visit.  But even when we point that out, they send back the same answer.  As far as I can tell, they are probably too busy and this is an easy way to lighten their load because we have no way to force them to admit that they are wrong.   This doesn’t mean that you shouldn’t request Premium Processing, but you should not build your plans around assuming that you will receive it.

I hope this is interesting and helpful.   Remember that this is not legal advice.  It is just a summary of certain aspects of immigration law which may or may not apply to your situation.   I encourage you to consult an attorney if you think any of this may apply to your situation.

Gunnar Armstrong

 

Citizenship, Green Cards, Non-immigrant Visas

Immigration Options for Spouses of U.S. Citizen Overseas M-ssionaries

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You are a US m-ssionary living abroad, and you are married to someone who is not a US citizen.   You have a potential problem — U.S. immigration.   Sooner or later you are going to want to bring your wife or husband home to meet your family.   Or sooner or later you will need to come to the US to fundraise or for some time away from the m-ssion field.   Or, maybe it is time for you to come to the U.S. to live for the next several years or the rest of your life.   Will you be able to do that?  Will U.S. immigration allow it?

The first question is, can your spouse come to the US as a tourist?  A tourist can only come to the US temporarily.  But for many, that is all that is wanted.   A few short tips a year    You can also take occasional longer trips — 6 months to a year.  And surely the fact that your spouse is married to a US citizen will help smooth the process.

Actually, it is not at all certain that your spouse will be able to come to the US as a tourist.  And the fact that you are a U.S. citizen actually makes it more difficult for your spouse to get a tourist visa.   The problem is that a tourist visa is for a person who only wants to come for a visit, and who fully intends on returning home to his home country after the visit.   But, you have to prove that intention to the person at the consulate and to the person at the border.   If they are doubtful about your intent to stay in the US, they will deny you a visa or entrance into the US.

They will look at a number of factors.  Is your spouse from a country where most people do not over stay, or is she from a country where a high-percentage of people do over stay.   How strong are your ties to the other country?  The longer the two of you have lived abroad the more likely they are to believe that you intend on returning there.   The fact that your spouse is married to an American makes it more likely that he will want to stay in the US, because it is rather easy for a person married to a US citizen to “change his mind” and decide to stay.

Some people find it very difficult to get tourist visas — even if they have been married a long time and have lived for years in a foreign country.  For these people, the only option is immigration.   The US citizen spouse will file a petition for them and, once it has completed its processing, they go to the consulate, get an immigrant visa and come to the US.    If they intend on staying here in the US that is the end of the process.

However, if they want to continue being m-ssionaries abroad, there are two other options.   The first, if the non-U.S. citizen spouse doesn’t want to become a U.S. citizen, she can apply for a Re-entry Permit.   The Re-entry Permit will allow her to stay out of the US for up to two years at a time for the first four or five years, and then one year at a time.  The downside is that it costs about $600 each time you need to renew it.   And, you always face the possibility of a grilling from a suspicious U.S. customs officer.

The other option for a spouse of a U.S. m-ssionary who wants to continue serving abroad is citizenship.   Normally, you have to wait three or five years, and spend most of that time in the US before you can get US citizenship.   But the spouse of a U.S. citizen m-ssionary can usually apply for citizenship immediately after he gets his green card.  The advantage of this is that puts an end to all the questions about coming and going and “will I have trouble when I enter?” questions.   Just so you know, the US fully allows dual citizenship — but some foreign countries do not.

I hope this is interesting and helpful.   Remember that this is not legal advice.  It is just a summary of certain aspects of immigration law which may or may not apply to your situation.   I encourage you to consult an attorney if you think any of this may apply to your situation.

Gunnar Armstrong

 

Non-immigrant Visas, R-1 visa

H-1B vs R-1 for M-ssionaries

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I have mostly been writing about coming to the US as a m-ssionary in R-1 status.   There is another option.  However, I think that it is a difficult option to work with.   That option is the H-1b.   The H-1b is a temporary option for professional employees to come to the US — usually this would be positions that require a college education.  The advantage of the H-1b is that it usually doesn’t have as much paperwork involved.  You don’t need to prove two-years membership in a denomination.   You usually don’t need to provide all the information that is required for an R-1 about the employing m-nistry and the nature of the employment and all the information about the job.  You don’t have to submit as much evidence showing that the employer really needs the R-1 employee and you don’t have to prove that it is a “r-ligious” job.  Therefore, the H-1b would be available for m-ssionary jobs that are not so “r-ligious” but can still very much be “m-ssionary” service — such as accountants or computer IT workers.  I have obtained R-1s for many people in widely varying (not obviously r-ligious) areas of service — but I have drawn the line at accountants.  I have not been able to come up with a realistic argument for how being an accountant is a “r-ligious” occupation.

However, there are a number of reasons why an H-1b is often not the best fit for most people who would normally be applying for R-1 status or an R-1 visa.  The first is the money.   There are a number of significant filing fees that must be paid by the employing entityand the attorney must be hired by the employing entity.  Also, the wages that must be paid are, to a certain degree, set by the government.   The Department of Labor has decided what the minimum levels of income are that can be paid to an H-1b employee, and these tend to be significantly higher than what would be paid to most m-ssionaries — sometimes as much as twice as high or more.  Another disadvantage of H-1bs is that there is a limited number of them (and usually there are more people who want them than can have them).  This results in a high proportion of H-1b applications being returned unaccepted.  Finally, due to the way the H-1b process works, most new H-1b employees must start after September 30 of the year they are approved.   This could cause delay for people who otherwise would not need to wait that long.

The other major issue is the college degree.   The H-1b is only available if the position requires a bachelor’s degree and if the job applicant has a bachelor’s degree.   In other words, if the church requires a pastor who has a college degree then an H-1b could work.  But if your ministry needs a receptionist, you can’t use the H-1b because the USCIS will say that most receptionists don’t need college degrees.

Sometimes an H-1b would work.   Your ministry needs an accountant or a director or a college professor or an agricultural engineer for your ministry’s ranch or farm and you pay a reasonably high amount and you want to bring one from abroad — you can use the H-1b.   But, for most other types of positions, the R-1 will probably work better.  Some churches pay their pastors well enough to qualify for the H-1b, but even there it might be easier to bring a pastor through the R-1 program.   The R-1 requires more documentation, but it is more flexible and you can probably bring the pastor sooner —- and you don’t have to worry about being rejected simply because there are too many applicants for the visa.

I hope this is interesting and helpful.   Remember that this is not legal advice.  It is just a summary of certain aspects of immigration law which may or may not apply to your situation.   I encourage you to consult an attorney if you think any of this may apply to your situation.

Gunnar Armstrong

 

Non-immigrant Visas

Applying for a Non Immigrant Visa at a Consulate

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What follows is general information about how to apply for a non-immigrant visa at a consulate.   Each consulate will have different details, but what I have here is fairly representative of what you will need.  At the end I have a list of documents that you will need.  Again, this will vary depending on they type of visa, but it is a fairly representative list.

The first thing that you need to do is to go to this website to fill out an on-line visa application — form DS-160:  https://ceac.state.gov/genniv/.    After you have completed and submitted the on-line visa applications, you should print out the confirmation page which you will bring to the Consulate.

After completing and submitting the on-line visa application, you must then go to an on-line visa interview processing webpage, run by one of several organizations (which are contracted by the US Department of State to provide visa application support services).   The link to this website will be found at your consulate’s non-immigrant visa webpage.  There, you will register and login and they will guide you through the process of paying your non-immigrant visa fee, scheduling your interview, making arrangements for delivery of your passport and visa after the interview and, probably, arranging to go get your fingerprints taken at the ASC (Application  Support Center) (not every embassy/consulate requires that fingerprints be taken beforehand).

If you can’t figure out how the on-line web portal works — it can be very confusing, you can usually also find a phone number which you can use to talk to the organization that runs the webpage.  They will usually be willing to do everything over the phone instead of on-line.

The visa fee can often be paid on-line.   They may offer you the option of paying at a bank or at the Consulate.   Or, sometimes, they will require you to pay at a bank or at the Consulate.

This is a list of the most important things that you should take with you to the Embassy/Consulate.   Review the information that you have from the Embassy/Consulate and any information on the scheduling notice.

  1. Your valid passport. Usually it needs to be valid for six months after your expected entry to the US.
  2. A 2 x 2 passport style photograph (you will also need to have uploaded this photo into your I-160 application). You probably do not need this, but a number of Embassy/Consulate websites say that you do need it.
  3. The Confirmation letter from your DS-160 visa application form.
  4. Your appointment Confirmation Notice.
  5. A receipt for the payment of your visa fees.
  6. Proof that you have made arrangements for the delivery of your visa (not required everywhere).
  7. You will need documents showing that you qualify for the visa type that you are requesting.
  8. Evidence of ties to your home country. This is becoming increasingly important.    They are starting to ask for this type of evidence more and more often.   Remember that any documents that are not in the language of the home country of the Embassy/Consulate will need to be translated into English.  Types of possible evidence:
    1. Household registers listing your name (Japan, China, Korea, and others)
    2. Evidence of bank accounts or other assets in your home country.
    3. Evidence that you own property or have a lease on an apartment in your home country.
    4. If your home address is the address of family or friends, a letter from them stating that this is your permanent residence and that you will be returning to live there when you leave the United States. This letter should have the address of the person signing it, be dated, printed out and signed, and then scanned and e-mailed to you.
    5. A letter from your parents or other relative in your home country listing your close relatives in your home country and their relationship to you. This letter should have the address of the person signing it, be dated, printed out and signed, and then scanned and e-mailed to you.
  9. If you are a family member/dependent of the main applicant you will need your original marriage/birth certificates to show your relationship.
  10. You will need proof that you will be able to support yourself and pay your way while you are here in the US. If you are coming on an employment visa, proof of your wages should suffice.

After the interview, if they approve you, they will take your passport and put the visa in it.  They will then return it to you by whatever manner you chose in the on-line web portal.

Sometimes, they hold your visa for Administrative Processing.  That means that they don’t like something and they want to look at it.  Usually Administrative Processing doesn’t take too long, but it can easily take several weeks or longer.  Often they request additional documents.  Many times after Administrative Processing they approve the request, but they also often deny the visa.

When you get the visa, it will have a validity period and a number of entries.   The validity period says how long the visa is valid for.   That means, you can enter the US until the last day of the validity period of the visa.  When you enter the US, the Customs officer will decide how long you can stay — which may be the same time as the validity of the visa or less than the validity of the visa, or it may be longer than the validity of the visa.

The number of entries will indicate how many times you can use the visa to enter the US — 1 time or 2 times or more or “M”, which means “multiple” times, or in other words, as often as you like — as long as Customs will also agree to let you in.

I hope this is interesting and helpful.   Remember that this is not legal advice.  It is just a summary of certain aspects of immigration law which may or may not apply to your situation.   I encourage you to consulate an attorney if you think any of this may apply to your situation.

Gunnar Armstrong