Generally speaking, just knowing a client’s immigration status is extremely important regardless of the context of legal representation. But understanding immigration status can be even more difficult. The alphabet soup of visa categories—from A to U (W, X, and Y were recently being considered)—can be confusing. And as globalization increases, so do immigration and visits to the United States. Based on statistics alone, the high number of U.S. visas issued means it is more likely that you will encounter a client who is not a citizen of the United States or who needs a visa. In fiscal year 2012, the U.S. Department of State issued 8,927,090 non-immigrant visas and 482,300 immigrant visas.
This article’s goal is to explain some of the basics of visa categories and immigration statuses in very simple terms. Note that at the time of this writing, immigration reform is still under consideration. An immigration reform bill passed the U.S. Senate in June 2013, and legislation was pending in the U.S. House of Representatives at the time this article went to press. If new laws are enacted, there will likely be additional visa categories not referenced here, as well as changes to the existing categories.
How Non-Citizens Enter the United States
Non-citizens must apply for a visa at a U.S. consulate abroad in order to enter the United States. Once they arrive in the United States, they are inspected at the border. Think of the visa as being the ticket to allow a foreign national to knock at the door of our country. The U.S. Customs and Border Protection agent is the person greeting foreign nationals and deciding whether or not to invite them in. Once they are inside, there are different options available based on family ties, employment shortages, and other avenues. The road to citizenship can be long and arduous; it is always dependent on individual circumstances.
Generally non-citizens or foreign nationals enter the United States as either non-immigrants, immigrants, or as asylum seekers or refugees.
An immigrant is an individual who has been admitted to reside permanently in the United States. These individuals are often called green card holders or lawful permanent residents (LPRs). LPRs are authorized to work pursuant to their status at any job for any employer. The two primary distinctions between citizens and LPRs are that LPRs cannot vote and can be removed (deported) from the United States if convicted of certain crimes.
Two common means by which an individual can become an LPR are either to be sponsored in a family-based visa category by a qualifying family member who is a citizen (or, in limited circumstances, a permanent resident) or be sponsored in an employment-based visa category based on a work skill that cannot be found in the current labor pool, as an intra-company transfer, as an investor, or in some other recognized employment category. There are other ways to become an LPR, as well, including through the diversity visa lottery.
Case example. You are defending a client facing federal felony drug trafficking charges. During intake, the client reveals that her citizenship application is pending with the government, and she is currently an LPR. Certain criminal convictions can cause LPRs to be removed back to their country of origin. It is critical that anyone advising a non-citizen accused of a crime be very familiar with the immigration consequences of the matter and seek competent immigration counsel to assist in the immigration aspects of the case. An individual could have been in the United States as an LPR for more than 20 years, but a plea to a felony narcotics conviction could easily place that lawful status into jeopardy.
Non-immigrants are individuals who have been admitted into the United States for a temporary period for a specific purpose. The purpose of the trip and other facts will determine what type of visa is required under U.S. immigration law. There are more than 30 non-immigrant categories. Some of the most common are visitors for business, visitors for pleasure, students, exchange visitors, and specialty workers.
The non-immigrant visa categories are identified by a letter representing the category and a number signifying the sub-category of the visa. Some of the most common non-immigrant visa categories are briefly described below:
B-1: Temporary Business Visitor. This category is used to attend meetings and conferences, conduct negotiations, solicit sales, and promote business functions, as well as for short-term training and after-sales service. This category generally does not allow for employment in the United States, but there are very limited circumstances where the Department of State will annotate a B-1 visa for specific work situations when issuing the visa.
In recent years we have witnessed increased abuses of B-1 visas. Holders of B-1 visa sometimes do not understand what is an acceptable use of this category. There is often confusion that stems from the length of the trip. A very short stay does not necessarily indicate that a B-1 visa is appropriate—the activity still has to qualify under the B-1 visa category. As companies are facing limited visas and lengthy time frames for processing other visas, some companies may try to skirt the fine line between a permissible activity and one that should be avoided.
Although the B-1 visa itself may be issued for up to ten years, individuals are usually admitted for no more than six months at a time.
Case example. You are defending a commercial litigation case, and the client indicates that all your witnesses are working in the United States on B-1 or “business” visas. If opposing counsel learns that the witnesses are not legally working in the country, counsel could use the information to impeach the witnesses or impugn your client. There is also a risk the witnesses could be administratively arrested for unauthorized employment and then be unavailable for deposition or trial.
B-2: Visitor for Pleasure. The holder of a B-2 visa is your average tourist admitted for a specified period of time. Disneyland, New York City, and the beach are all appropriate destinations for B-2 visitors for pleasure. Other activities allowable on a B-2 include medical treatment; participation in social events hosted by fraternal, social, or service organizations; participation by amateurs in musical, sports, or similar events or contests, if not being paid for participating; and enrollment in a short recreational course of study, not for credit toward a degree (for example, a two-day cooking class while on vacation).
Case example. You are representing a client in the purchase of a home when he mentions that he wants to get the deal done quickly because his stay is about to expire and he needs to leave and come back to the United States all during his children’s winter vacation. The client’s children attend the local public elementary school. This can be problematic. Although it is allowable to own a home in the United States, the B-2 visa does not allow you to reside here permanently. A tourist visa does not permit your client to reside permanently in the United States or send his children to public school for free. The parents must pay the children’s tuition to the public school and obtain the appropriate visa; most public school systems can facilitate this.
F-1: International Academic Student. All international students pursuing academic (as opposed to vocational) education in the United States must have an F visa. The visa is issued for a specific institution for the duration of the intended academic program at that institution. F visa holders who wish to transfer institutions must be accepted by the new institution and then request approval from the U.S. Department of Homeland Security (DHS) to transfer. Failing to do so can result in violating one’s status.
A common misconception about F visa holders is that they can automatically work. Work is only permitted when authorized by the school and the DHS in limited circumstances, including on-campus employment. Other exceptions include having school-authorized optional or curricular training for a specific employer. The optional practical training (OPT) should be directly related to the student’s field of study for purposes of gaining practical training and is generally granted after completing a degree program. Curricular practical training must not only be related to the student’s major field of study but also be part of the established curriculum.
F-1 students have many other requirements to maintain their status, including attendance in school, maintaining a certain number of credits, and progression within the defined academic program. It is critical the student visa holder maintain status by working closely with the internal office of the university and following the rules carefully. A small misstep could bar future entries to the United States.
Case example. You are negotiating a lease for a small restaurant that is expanding. You meet with the owner at his place of business, and he introduces you to a few young college students from the United Kingdom who are working as servers. He offers they are studying here at the local university and triumphantly notes how he is able to get great help at low wages. When you inquire about their ability to work in the United States, he states it is only for the summer and they have F visas. Although some students may have work authorization, generally they will not be granted permission for a part-time job such as waitressing at a restaurant. This client should be reminded about the employment eligibility laws and be offered a referral to a competent immigration compliance specialist to review the restaurant’s Form I-9s.
H-1B: Specialty Worker. The H visa category allows certain professionals to enter, reside, and work for a specific employer in the United States for a certain period of time. The time frame varies on the sub-category of the H visa.
The most common is the H-1B category, which is reserved for specialized, professional workers such as scientists, engineers, programmers, etc., who have specific education and training. Although H-1B visa holders are admitted to the United States to work for a specific employer, this visa category has portability, and an H-1B visa holder who has maintained lawful status can work for a new employer once that employer files a valid petition for the visa holder and other conditions are met.
J-1: Exchange Visitor. Exchange visitor visas are non-immigrant visas for individuals approved to participate in exchange visitor programs in the United States. The J visa program is a very large and diverse program; it includes au pairs, camp counselors, government visitors, interns, and international visitor physicians, professors, and research scholars. The Department of State designates approved exchange visitor program organizations. J visa holders must work through one of these entities in order to be able to apply for a J visa. Based on the type of exchange, there may be a requirement to return to the home country for a two-year period before being able to live in the United States.
L-1: Intra-Company Transfer. A company operating in the United States and abroad can request L visas for employees to transfer to their U.S. operations as a manager or executive under the L visa category. Companies also can bring in individuals with specialized knowledge. The visa is initially granted for one year for new office scenarios or three years for existing businesses. With this visa category, the employee can only work for the specific company that sponsored the visa. There has been some abuse of this category in recent years, and the government has cracked down tremendously to ensure that foreign workers are not being brought into the United States to work at third-party sites rather than at the affiliated company that sponsored the employee.
Case example. You are registering an LLC for a client who wants to start a social media company, when the client reveals that she is currently on an L-1 visa. While she can certainly own a business in the United States, she will not be able to actively manage the business. She does not have current authorization to work outside the company that holds the visa. With competent immigration counsel, she could consider switching her status to an investor visa or other category depending on the particulars of her circumstances, which would need to be carefully reviewed.
Government Agencies with Visa Responsibilities
Knowing who manages immigration and visas is important to ensure your clients avoid problems. Visa requirements have changed, and immigration in general is a shared responsibility among various government agencies.
The U.S. Immigration and Naturalization Service (INS) ceased to exist in 2003. The INS’s functions were divided among three agencies created within the DHS in March 2003. These agencies are listed below with a brief overview of their responsibilities:
U.S. Citizenship and Immigration Services (USCIS; uscis.gov/portal/site/uscis). This agency oversees lawful immigration to the United States. It has the benefit-issuing responsibilities of the former INS. USCIS adjudicates petitions or requests for benefits, including family-based and employment-based petitions.
U.S. Immigration and Customs Enforcement (ICE; www.ice.gov). This agency has the principal responsibility for investigations. ICE handles criminal and civil enforcement of federal laws governing border control, customs, trade, and immigration. Among many things, ICE is the agency that investigates worksite and criminal visa violations and also is responsible for removing individuals, including criminal aliens, from the United States.
U.S. Customs and Border Protection (CBP; cbp.gov). This agency has responsibility for securing the border and facilitating lawful international trade and travel while enforcing immigration and drug laws. CBP is the agency that operates the ports of entry in which visa holders enter. These can be land, air, or seaports. CBP officers review the validity of the visa as well as the passport and make the final determination if the individual who is presenting him- or herself for entry is lawfully admissible to enter the country. Even if this individual has a lawfully issued visa, the CBP officer makes the final determination whether an individual should be admitted. Remember, possession of a visa is not a legal guarantee of admission into the United States; it merely allows you to knock at the door. Many valid visa holders are denied entry into the United States every day. For example, an individual could be issued an F-1 student visa. However, when the student presents herself for admission to a CBP officer, the officer finds a banned substance in her suitcase. The CBP officer can exclude the individual from entering the United States despite having a valid visa.
U.S. Department of State (DOS; state.gov/travel). Another entity—outside DHS—is also involved in the immigration process: DOS. In addition to issuing U.S. passports, DOS issues visas from the consulate abroad. DOS may deny visas based on a variety of reasons, including a DOS determination that an applicant is actually an “intending immigrant,” and so is not eligible for a non-immigrant visa, or that the applicant has engaged in criminal behavior or history that renders him or her ineligible for a visa.
The Visa Waiver Program (VWP) allows citizens of participating countries to travel to the United States without a visa for stays of 90 days or less, provided they meet all requirements. The purpose of these trips must be the same as for the B visa category. Travelers must be eligible to use the VWP and have a valid Electronic System for Travel Authorization (ESTA) approval prior to travel. Currently, citizens or nationals from the following 37 countries are eligible to enter the United States as a visitor for up to 90 days without obtaining a visa:
Andorra, Australia, Austria, Belgium, Brunei, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, The Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, Taiwan, and United Kingdom.
Like B visa applicants, VWP entrants are authorized to travel throughout the United States but are not authorized to work or enroll as students in degree-seeking programs. When viewing this individual’s passport, there will not be a visa; however, there will be an admittance stamp by a Customs and Border Protection Officer indicating that the passport holder was admitted under the VWP. Although Canada is not a participant in the VWP, there are other provisions for visa-free travel for nationals of Canada under certain circumstances.
From Visa Holder to Citizen
How do individuals become citizens? The United States follows both the principles of jus sanguinis (right by blood) and jus soli (right by soil). As such, there are many paths to citizenship in the United States. Those born in the United States are privileged to be considered citizens by birth (jus soli; there are very limited exceptions to this). This right to citizenship is bestowed on every child born in the country, regardless of whether the parents were undocumented at the time of the child’s birth.
Children can also derive citizenship from their parents (jus sanguinis). Whether a child derives citizenship automatically upon the naturalization of the parent(s) depends on the law at the time. The law applies to natural-born children as well as adopted children. However, it does not apply to stepchildren unless the stepparent legally adopts the child. Citizenship can also be acquired at birth. The rules for acquisition of citizenship vary depending on the law in effect at the time the child was born. Furthermore, there are different standards for those children who under the laws of their country are considered to be born in wedlock as opposed to those born out of wedlock.
Finally, an individual can naturalize to U.S. citizenship. This process involves having been a lawful permanent resident for five years, or three years if married to a U.S. citizen, and then applying for naturalization. Requirements include taking a civics test, demonstrating English proficiency (again, there are exceptions), and having good moral character (negative or minor criminal history). Clearly, citizenship is an extremely complicated area of immigration law that has been amended numerous times over the years. What is important to keep in mind is that your client could be a U.S. citizen and not know it. In many instances this can be a deal changer.
Although you don’t need to master immigration law to practice real estate or provide tax advice, some basic knowledge of visa categories and the immigration process can be incredibly useful. Of course, in any legal case, if your client is not a citizen, consultation with an immigration attorney or expert is highly recommended to ensure you are advising your client properly and avoiding visa pitfalls.