Immigration Status Summary
- A national of the United States means a citizen of the United States, or a person, who, though not a citizen of the United States, owes permanent allegiance to the United States.
- An immigrant is a foreign born person who has been approved for lawful permanent residence in the US. Immigrants have permanent, unrestricted eligibility for employment authorization. Evidence of immigrant status includes, but is not limited to, a Permanent Resident Card (Form I-551, Resident Alien Card, Permanent Resident Card, Alien Registration Receipt Card and/or “Green Card”).
- A non-immigrant is a foreign national who seeks temporary entry to the US for a specific purpose. There are approximately thirty types of non-immigrant classifications. A non- immigrant foreign national typically must maintain a permanent residence abroad and must qualify for the requested visa classification. Furthermore, non-immigrant status may or may not permit employment.
- Immigration status is determined at the time of entry and is reflected on the foreign national’s Form I-94, but a foreign national may change his or her status subsequent to his or her entry into the US.
A visa is a travel document issued by a US consulate abroad that allows the foreign national to travel to the US to apply for admission at a US port of entry. If a foreign national who should, but does not have a visa arrives at a US port of entry, the foreign national may be returned at the carrier’s expense to the home country or to the port of departure. Except for Canadian citizens who are visa exempt (with some exceptions), foreign nationals with Border Crossing Cards, and foreign nationals traveling on the Visa Waiver Program, all foreign nationals are expected to present valid visas for travel to the US which comport with the classifications under which they seek admission to the US for purposes of inspection by the Department of Homeland Security.
US consular officers interview visa applicants to determine admissibility and whether the foreign national is eligible for the particular classification. Consular officers are particularly concerned with whether the foreign national has established that s/he will comply with the terms of his or her admission. As stated earlier, most non-immigrant foreign nationals must establish that they intend to remain temporarily in the US and will return abroad prior to the expiration of their period of authorized admission. However, because the law distinguishes among non- immigrant foreign nationals who may have immigrant intent (i.e. to remain in the US permanently), those who must have non-immigrant intent (i.e. to remain in the US temporarily for the purposes permitted under the admission classification), and those who may have dual intent (i.e. may seek admission for a temporary purpose while independently pursuing a related or unrelated purpose to remain the US permanently), determination of the intent of an foreign national seeking travel or admission to the US is an important issue.
A foreign national in possession of a current, valid visa is not guaranteed admission to the US by virtue of having been issued that visa. At a US port of entry, the Department of Homeland Security will inspect the foreign national to determine admissibility and if appropriate, admit the foreign national in a particular non-immigrant category. The inspecting officer will also determine the period of authorized admission of the foreign national.
Visa vs. Status
There is a clear distinction between the visa validity period and the foreign national’s status in the US. First, the visa serves as a travel document to allow the foreign national to travel to the US and apply for admission into the US. The foreign national must apply for admission to the US during the validity period of the visa. The visa alone does not, however, confer any immigration status or employment authorization, and the validity of the visa does not control the period of time the foreign national is authorized to remain in the US. The expiration of the visa following the foreign national’s entry into the US does not necessarily affect the foreign national’s authorized stay in the US.
The period of authorized stay is indicated on the Form I-94 issued to the foreign national and is unrelated to the period during which a consular officer has authorized a foreign national to apply for admission to the US under the classification indicated on the visa. The I-94 is issued at a port of entry following an interview by an immigration officer to determine whether the foreign national is eligible for admission in that particular non-immigrant category.
The Form I-94 indicates the classification under which the foreign national is admitted and the period of authorized stay in the US under that classification. Although the period of stay is usually expressed with a beginning and ending date, for some non-immigrant classifications such as F-1 or J-1, the authorized period of stay may be expressed as “D/S” meaning for duration of status.
Visa Exemption for Canadians and Mexicans
With limited exceptions, citizens of Canada are exempt from the requirement to obtain visas to travel to the US as non-immigrants. Citizens of Mexico may obtain Border Crossing Cards in lieu of visitor visas. Border Crossing Cardholders are restricted to visits of 72 hours or less and within 25 miles of the border. Mexican visitors who wish to stay in the US for more than 72 hours and travel within any of the 50 states must obtain Form I-94 which is stamped at the US ports of entry.
Visa Waiver Program
Foreign nationals from certain countries may travel to the US without visas under the Visa Waiver Program (VWP), presenting only their unexpired foreign passports and proof such as a roundtrip ticket of intention to depart from the US within 90 days. Visa waiver travelers are issued green Forms I-94 marked WB (Waiver-Business) or WT (Waiver-Tourist), which correspond to B-1 and B-2 classification, respectively. Although travel without a visa represents a convenience, visa waiver travelers are unable to change their status from within the US to other non immigrant classifications, and with very limited exceptions may not apply for permanent residence while in the US pursuant to the Visa Waiver Program.
Extension of Stay and Change of Status
Certain non-immigrant foreign nationals who are present in the US may extend their non- immigrant stay under the same classification or change their non-immigrant status (from one non-immigrant classification to another). Foreign nationals applying to extend or change their status must file the application with the USCIS before the expiration of current status and must establish that they have maintained non-immigrant status. This means that if an foreign national violated the terms of his or her admission (e.g. accepted unauthorized employment), the CIS will deny the change of status or extension of status. Notification that an foreign national has been granted extension of stay or change of status is provided on a Form I-797 Notice of Action that typically includes a tear-off replacement Form I-94 at the bottom of the Form I-797. This I-94 serves the same purposes as the original I-94, indicating the foreign national’s new period of authorized stay under the classification, and if appropriate, the new non immigrant status of the foreign national.
Adjustment of Status
Foreign nationals who are outside the US and seek permanent residence in the US apply for an immigrant visa at US consulates abroad and are then admitted into the US as lawful permanent residents. Under certain circumstances, some foreign nationals who are present in the US may become permanent residents without having to leave the US. This process, which is administered at the discretion of the USCIS, is called “adjustment of status.” It differs from the “change of status” process where an foreign national present in the US changes from one non-immigrant classification to another. In order to qualify, eligible foreign nationals generally must be in legal immigration status on the date of filing the permanent resident application and must have maintained lawful status since admission into the US. As mentioned in the “Permanent Residence” portion of this website, aside from meeting the requirements for adjustment of status, the foreign national must also qualify for the underlying permanent resident status.
Eligibility for Employment
Employers should be aware of the foreign nationals who are authorized to work in the US and whether such employment is restricted in any way. USCIS regulations establish three classes of foreign nationals who are allowed to work in the US: (1) foreign nationals authorized to work incident to their status, (2) foreign nationals who are permitted to work for a specific employer incident to their status, and (3) foreign nationals who must apply for and obtain permission from the USCIS in order to accept employment to the US.
“Sponsoring” a Foreign National for US Employment
Many people do not know how an foreign national may be “sponsored” for employment in the US. They often do not realize that there are many different non-immigrant classifications or that permanent residence based on US employment is possible. In addition, there may be no classification that fits the employer’s circumstances or only the more lengthy sponsorship process for permanent residence may be possible. Typically, the employment “sponsorship” process involves petitioning the USCIS for a determination of whether the job requirements and the foreign national’s credentials match the requirements for the classification requested. Some non-immigrant classifications do not require approval of a petition by the USCIS, and the application is made directly at the US Consulate abroad. Whether a petition is first filed with the USCIS, or an application is made directly at the US Consulate, admission to the US in a particular non-immigrant category is done at the US port of entry.
Determining Which Classification May be Appropriate Depends on the Following:
- Nature and requirements for the position;
- The foreign national’s credentials vis a vis the position requirements;
- The requirements of similar US employers for similar positions;
- The duration of the petitioning employer’s need to have the position filled (this does not refer to the period of time desired by the employer for the foreign national to fill the position, but to the period of time during which the employer needs the position to be filled);
- Whether the foreign national is inside or outside the US and, if in the US, the current status of the foreign national;
- Whether the US employer has a parent, affiliate, subsidiary, branch, or joint venture partner abroad at which the foreign national has been employed;
- The foreign national’s country of citizenship.
*This material is largely based on the USCIS Office of Business Liaison’s Guide for US Businesses Hiring Temporary Employees from Outside the US.
Copyright © 2005 Law Offices of Melissa Harms All rights reserved.
The above discussion is provided for informational purposes only and is not intended as legal advice nor does it create an attorney-client relationship. Individuals should visit a licensed attorney to evaluate the legal circumstances surrounding their situation and to receive appropriate legal advice.