IMMIGRATION: BASIC NONIMMIGRANT VISA OVERVIEW

This is an overview of the U.S. Business Immigration System . . . .

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Nonimmigrant (Temporary) Work Authorized U.S. Visas :

"Nonimmigrants" are persons who may be admitted into the U.S. for temporary periods. Upon arrival in the U.S., nonimmigrants (other than Canadian visitors for business or pleasure) usually receive white or green cards (referred to as "I-94" forms) which are stapled into their passports by U.S. Immigration Officers. The I-94 form shows a date by which the person is required to depart the United States. Failure to depart can have serious immigration consequences in the future.

Nonimmigrants from certain countries are not required to have U.S. visas when entering the U.S. as visitors for business or pleasure. Such persons, who must nonetheless still present unexpired passports, are called "visa waivers" shown below as "W.B." and "W.T."

Persons who overstay the term of their admission into the United States may be subject to the Bar to Admissibility, discussed below.

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List of U.S. Nonimmigrant Visa Categories:
(
In addition, there are special designations for spouses and children under age twenty-one.)

"A-1"      - Diplomatic Personnel
"B-1"      - Temporary Visitors for Business
"B-2"      - Temporary Visitors for Pleasure (Tourists)
"C-1"      - Persons in transit through the U.S.
"D-1"      - Aircraft/Ship Crewmembers
"E-1"      - Treaty Traders - persons involved in trade from certain specified countries
"E-2"      - Treaty Investors - persons who invest in a business in the USA
"E-3"      - Australians with university degree
"F-1"      - Academic Students "L-1A" Intracompany Transferees (Executives and Managers)
"H-1B"   - Workers in Specialty Occupations - normally requires a university degree
"H-2A"   - Temporary Agricultural Workers
"H-2B"   - Temporary Workers Performing Temporary Services (i.e., seasonal workers; au pairs)
"H-3"      - Trainees with companies that have an established training program
"I"           - Media Representatives
"J-1"       - Exchange Visitors
"K-1"      - Fiancé(e) of a U.S. Citizen
"G-1"      - International Organization Representatives
"L-1B"    - Intracompany Transferees (Persons of Specialized Knowledge)
"M-1"      - Vocational Students
"NATO"  - NATO Military Personnel
"O-1"      - Extraordinary ability in sciences, art, education, business, athletics, movies/T.V.
"P-1"       - Artists/Entertainers
"Q-1"      - International Cultural Exchange Persons
"R-1"      - Religious Workers
"TN."      - NAFTA (Canadian/Mexican Qualifying Personnel)
"WB"      - Waiver - Business (Waiver of B-1 visa for citizens of qualifying countries)
"WT"      - Waiver - Tourist (Waiver of B-2 visa for citizens of qualifying countries)
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B-1 Business Visitor Visa - General Information:

Foreign nationals working for a foreign entity are allowed to visit the United States on a "B-1" business visitor visa, or a "B-1" Visa Waiver if they are a citizen of a Visa Waiver country.

Eligibility Requirements:

Foreign nationals interested in visiting the United States for exploratory business purposes that do not involve receiving salary or payment in cash, are eligible to apply for a "B-1" business visitor visa.

Many people believe that they can enter the United States as a "B-1", start or participate in a business, make frequent trips out of the USA and then return after a brief absence. This procedure can lead to the person being excluded from the United States. Immigration officers will see the frequency of travel, and may advise the person that they need another type of visa, or they may just refuse to admit a person who seems to spend more time inside the USA than outside. This is a common mistake unwary business people make and if excluded, or removed from the United States, may not be able to return for five years or longer.

"B-1" business travel can have unexpected consequences. Competent immigration counsel should be consulted before a problem arises. Once an immigration officer decides to exclude or remove, it is often too late to ask for legal counsel.

Visitor visas are issued as "B-1/B-2", as indicated on the visa stamp in the passport. It is upon entry into the United States that the person tells the Immigration Officer the purpose of their trip, business or pleasure, and is then given permission to enter as either a "B-1" Business Visitor, or "B-2" Tourist, as will be indicated on the Form I-94 entry document.

B-2 Visitor for Tourism Visa - General Information:

Foreign nationals working for a foreign entity are allowed to visit the United States on a "B-2" business visitor visa, or a "B-2" Visa Waiver if they are a citizen of a Visa Waiver country.

Eligibility Requirements:

Foreign nationals interested in visiting the United States for leisure or tourism, may apply for a "B-2" tourist visa. Persons admitted to the United States under a "B-2" tourist visa are not allowed to work or receive any kind of payment while being in the United States.

Visitor visas are issued as "B-1/B-2", as indicated on the visa stamp in the passport. It is upon entry into the United States that the person tells the Immigration Officer the purpose of their trip, business or pleasure, and is then given permission to enter as either a "B-1" Business Visitor, or "B-2" Tourist, as will be indicated on the Form I-94 entry/departure document.

"B-1/B-2" Visa Extension Information:

Foreign nationals visiting the United States on a "B-1" Business Visitor Visa, or on a "B-2" Tourist Visitor Visa are issued an I-94 Form by an Immigration Officer upon entry into the United States. The I-94 Form is a small white card which shows your arrival date and location of entry into the United States. It also shows the date by which you must depart the United States. The dates on the I-94 form control the authorized stay in the United States, not the dates on the visa itself.

Travelers on "B-1" and "B-2" visas are usually allowed to stay in the United States for a period of up to six months, with the possibility of extension for up to six additional months upon approval of the extension application by the USCIS.

"B-1/B-2" Extension Eligibility Requirements:

No extension or change of status is allowed for "W.B." or "W.T." Visa Wavier entries, but for persons who have entered the United States on an actual "B-1" or "B-2" visa is eligible to apply for an extension of their"B" status, but there are no guarantees the application will be approved.

The USCIS examines factors that show the need of the applicant to remain in the United States for a period longer than that for which he or she was originally admitted (usually six months), and evidence showing the applicant's intention of departing the United States at the end of the proposed extension period.

The applicant must submit the extension of stay application before the current authorized stay expires. The applicant is also be required to provide proper evidence of financial support.

"B" visa extensions are often denied. Competent legal counsel should be consulted for assistance in filing an extension of "B"visitor status.

The extension form looks easy to complete, but there are substantial pitfalls that may make the application not approvable, unless appropriate documentation and explanation is presented.

E-1/E-2 Treaty Visas:

For a List of E-1 & E-2 Visa Qualifying Countries See: http://foia.state.gov/masterdocs/09fam/0941051X1.pdf

The "E" visa category is for International Traders or Investors who have the nationality of a country that has a treaty of trade and commerce with the United States.

The E-1 Treaty Trader visa requires substantial trade between the treaty country and the United States.

The E-2 Treaty Investor visa requires a substantial investment in a business enterprise in the United States that is not a marginal business designed solely for the support of the alien and
his/her family.

"E" visas can be very complex and have definite rules that must be followed. Competent legal counsel should be consulted before applying.

"E-3" Visas for Australians:

The regulations implementing the "E-3" visa were published in the U.S. Federal Register on September 2, 2005. With the publication of the Regulations, Australians are now able to apply for "E-3" visas in order to live and work in the United States. These visas have nothing to do with the E-1 or E-2 visa categories, except the similarity of "E" designation. In reality, E-3 visas are similar to the H-1B visa category, and exempt Australians from the annual H-1B numerical "cap".

The "E-3" visa helps Australian business people and professionals capitalize on the opportunities offered under the Australia-United States Free Trade Agreement (AUSFTA). Qualified Australians wishing to reside and work in the United States now find themselves in a privileged position. They have access to a dedicated visa that is easier and less costly to obtain than the traditional H-1B business visa.

"E-3" visas can be very complex and have definite rules that must be followed. Competent legal counsel should be consulted before applying.

"F-1" Student Visa - General Information:

The United States welcomes foreign students to American language schools, high schools, universities and other academic institutions of higher education. Under certain limited circumstances, students on an "F-1" visa may accept employment in the U.S., And after graduation may obtain employment authorization for up to one year, as a part of their practical training.

"M-1" visas are issued to students attending a vocational course of study, such as flight training, technical occupations, etc., and the rules are mostly the same.

Student Eligibility Requirements:

An applicant for a student visa must come to the United States to pursue a program in an academic institution recognized by the United States government. The alien must have a valid educational purpose for coming to the United States and be a full-time student. The student can stay in the United States for as long as he/she is enrolled in school.

The I-94 Form, a small white card which shows your arrival date and location of entry into the United States. It also shows the date by which you must depart the United States. The dates on the I-94 form control the authorized stay in the United States, not the dates on the visa itself.

Because for the most part, student visas are handled by the school officials who know little or nothing about U.S. immigration, many students tend to ignore the strict rules that apply to student visas, fail to plan what they will do after they graduate, and miscalculate the time periods of Optional Practical Training and possible Change of Status to "H-1B" if they intend to remain in the United States and work after graduation. This can lead to bitter disappointment.

Student visas can be very complex and have definite rules that must be followed. Competent legal counsel should be consulted before applying and before graduation and application for Optional Practical Training.

"J-1" Exchange Visitor Visa - General Information:

The United States government issues "J-1" visas to individuals who take part in a wide range of a exchange visitor programs sponsored by schools, businesses, and a variety of organizations and institutions. These programs are envisioned for business and industrial trainees, scholars, students, international visitors, certain teachers, research assistants, and persons on cultural missions. In addition, there are several exchange visitor programs for young people, including summer employment programs, internship programs for university students, and au-pair programs for domestic child care workers.

"J-1" Eligibility Requirements:

You meet the criteria for a "J-1" exchange visitor visa if you are coming to the United States
as a student, scholar, trainee, teacher, professor, research assistant, medical graduate or international visitor who is participating in a program of studies, training research or cultural enrichment specifically designed for such individuals by the United States Department of State, through its Bureau of Educational an Cultural Affairs, in an approved "J-1" program.

"J-1" visas can be very complex and have definite rules that must be followed. Competent legal counsel should be consulted before applying.

"K-1" Fiancé(e) Visa General Information:

"K-1" Visas are visas for foreign fiancé(e)s also commonly called a Fiancé Visa. K-1 visas are issued at a U.S. Consulate abroad to Aliens who are engaged to marry a U.S. citizen, and who have the intent of being married within 90-days after arrival of the Alien in the United States.

After the marriage, the U.S. Citizen spouse must file a petition with the USCIS. After the petition is approved, the fiancé(e) can obtain a "K-1" fiancé visa issued at a U.S. Embassy or consulate abroad. The marriage must take place within 90 days of the fiancé(e) entering the United States.

If the marriage to the U.S. Citizen does not occur within that 90-day period after entry into the United States, as shown on the I-94 Form, the Alien goes out of status and cannot change to another immigration status within the United States, and cannot adjust status to permanent residence through a subsequent marriage, either to the original fiancé or to another U.S. Citizen - the Alien MUST return to their home country and apply for any applicable immigration benefits at the U.S. Consulate of they do not marry the original "K-1" sponsor. That's the law, and THERE ARE NO WAIVERS.

Fiancé(e) visas can be very complex and have definite rules that must be followed. After entry into the United States and marriage to a U.S. Citizen, the applicant must then apply for Permanent Residence in the United States by completing the process. Competent legal counsel should be consulted before applying for a finance visa.

"H-1B" Visas for persons with University Degrees:

"H-1B" Work Visas are for university educated individuals who will be working in a "Specialty Occupation" that normally requires a university degree or its equivalent.

General Information:

The "H-1B" visa enables professionals in "specialty occupations". A maximum of 65,000 "H-1"B visas are issued every year to persons with Bachelor's Degrees, and an additional 20,000 to persons with a U.S. Master Degree or higher. These numerical limitations are commonly referred to as the "H-1B Cap" - After the "H-1B Cap" is filled for a particular government fiscal year, no H-1B visas can be issued until the beginning of the next fiscal year, which begins October 1st of each year. Filings for H-1B visas begin April 1st of each year and continue until the cap is reached, which historically is about August. Successful applicants can then begin work as of October 1st.

"H-1B" petitions are submitted by employers based on their need for the non-US resident employee. There is no need to show that no US workers are available, but the employer must agree to, and pay, the prevailing wage, as determined by the U.S. Department of Labor, in the geographic area
of employment.

The "H-1B" visa is issued for up to three years but may be extended to a maximum of six years. The "H-1B" visa holder can apply for a Green Card if a company wants to file an Application for Labor Certification and proceed with the "Green Card" process.

"H-1B" Eligibility Requirements :

The "H-1B" nonimmigrant visa may be issued to applicants seeking temporary entry in a "specialty occupation" which is defined as an occupation where entry level requirement is normally a bachelor's degree or higher. The job must require special professional skills associated with the attainment of a university degree.

"Specialty Occupations" include, but are not limited to such occupations as accountants, architects, computer analysts, programmers, database administrators, web designers, engineers, financial analysts, techincal writers, marketing analysts, some medical positions, some but not all nurses, scientists, etc.

The key to determining what is, and is not, a "specialty occupation" is whether or not the job position normally requires a Bachelor Degree or higher as the minium entry level requirement. This can be determined through research of official publications, upon which the immigration service relies for their guidance.

Foreign degrees require a determination by a qualified Credentials Evaluator that the foreign degree is the equivalent to a U.S. Bachelor Degree or higher.

While there is no need to show that U. S. workers are unavailable to fill the position, the employer must agree to, and actually pay the foreign worker not less than the prevailing wage. The prevailing wage is determined by the U.S. Department of Labor for the particular job position offered, in the particular geographic area of employment. The employer is required to sign a Labor Condition Application attesting that they will pay the foreign worker as promised. There can be severe penalties if the employer fails to comply with its terms.

In additon, the employer is required by law to fully document the employment offer, including the Labor Condition Application and other required documents, and to keep this information accessible in both public and private files at the place of employment or at the company's corporate headquarters. Failure to adhere to these regulations can result in penalties to the employer.

"H-1B" Employers should make certain they comply with these regulations and insure that their immigration lawyer provides them the necessary documentation after approval of the "H-1B" Petition.

In some instances, a person without a Bachelor Degree can qualify for an "H-1B" visa, by showing they have a combination of education and employment history in the specialty occupation that are the equivalent to a Bachelor Degree. Keep in mind, however, that the job position must be a specialty occupation. These can be very difficult cases.

"H-1B" visas can be very complex, and have definite rules, requirements, and restrictions that must be followed in order to protect the employer, and assist the alien in visa issuance. Competent legal counsel should be consulted before applying.

"H-2" Work Visa for Temporary Skilled and Unskilled Workers General Information:

The "H-2" work authorized visa was created to allow people to come to the United States temporarily, in occupations where U.S. workers are in short supply. "H-2B" visas are designed for skilled and unskilled workers who are fulfilling a job that is temporary in nature, like a ski lift operator, a gardener in a cold climate, seasonal resort staff, etc., and "H-2A" for seasonal agricultural workers. A maximum of 66,000 "H-2B" visas may be issued every year.

"H-2" Eligibility Requirements:

A person qualifies for an "H-2" visa if theyare coming to the United States to accept a temporary or seasonal job from a U.S. employer. It is the need for the job to be filled that must be temporary, not merely the employer's or the alien's intention to remain in the United States for a temporary period.

Note that "H-2" visas, which are for temporary seasonal employment, and are not to be confused with "H-1B" visas, which are intended primarily for college-educated workers, either on a full-time or part-time temporary basis.

"H-2" visas can be very complex and have definite qualifying factors, filing time restrictions and rules that must be followed. Competent legal counsel should be consulted before applying.

"L-1" Intracompany Transferee Visas:

Foreign nationals who have been employed outside the United States for at least one year out of the previous three years by a parent, branch, subsidiary, or affiliated company of a US company can apply for an "L-1" Intracompany Transferee Visa and transfer to the United States for employment by that company.

There are two categories of "L-1" visa: one for Multinational Executives and Managers ("L-1A", and another for persons with "Specialized Knowledge" about the company's business techniques and methodologies ("L-1B").

Spouses of "L" visa holders can obtain employment authorization by application after arriving in the Uninted States.

Some "L-1A" Visa holders may be eligible to apply for permanent residence without going through the Labor Certification process, and may be in a more advantageous category under the Visa Quota System.

"L-1" visas can be very complex and have definite rules that must be followed. Competent legal counsel should be consulted before applying.

"O-1" Visas for Artists and Entertainers:

The "O-1" visa is a temporary work visa available to foreign nationals who have “extraordinary ability in the sciences, arts, education, business or athletics.”

The extraordinary ability must have been demonstrated by “sustained national or international acclaim.” The "O-1" visa is also available to those in motion pictures and television who can demonstrate a record of “extraordinary achievement.” The requirement has been interpreted broadly to include most creative fields, including photographers, chefs, carpenters and lecturers.

Staff of an "O-1" can receive an "O-2" visa upon the showing of proper documentation.

"O-1" visas can be very complex and have definite rules that must be followed. Competent legal counsel should be consulted before applying.

"P-1" Visas for Athletes:

"P-1" visas are for athletes who have gained national or international recognition and who are truly distinguished in their field of endeavor. "P-1" visas can be very complex and have definite rules that must be followed. Competent legal counsel should be consulted before applying.

Trade NAFTA "TN" Visa General Information:

"TN" Visas are temporary work visas available only to citizens of Mexico and Canada. Under the North American Free Trade Agreement (NAFTA), a citizen of a NAFTA country may work in a professional occupation in another NAFTA country, as long as the applicant meet certain requirements. The spouse and unmarried, minor children of the principal applicant are entitled to the derivative status (called TD visa), but they are unable to accept employment in the
United States.

"TN" Visa Eligibility Requirements:

Trade NAFTA "TN" Visas are only available to citizens of Mexico and Canada, in certain enumerated professions. The applicant must documentarily show their qualifications, and must show that they are going to work for a U.S. Employer There is no self employment allowed on a "TN" Visa, however, there is no prohibition against the TN employee owning the U.S. company that employs him/her. "TN" visas can be very complex and have definite rules that must be followed. Competent legal counsel should be consulted before applying.

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Employment Based Visa System

This visa category has five preference categories. The requirements for each
work visa category are, in general, as follows:

First Preference (No Labor Certification Required):

Priority Workers: Extraordinary ability in the arts, sciences, business or athletics:
The prospective immigrant must show sustained national or international acclaim, recognition of his or her achievements through extensive documentation; that he or she is entering the United States to work in that area of ability, and that this entry will "substantially benefit prospectively" the United States.

Outstanding professors or researchers: The immigrant must have international recognition as outstanding in a specific field, at least three years' experience in teaching or research in that field, and be entering for a "tenured" or "tenure track" teaching position or comparable research position. The alien's presence must substantially benefit the United States, and "exceptional ability" requires more than a mere degree or license. A job offer is normally required. However, this requirement may be waived by the Attorney General, through its designated representative, the Immigration & Naturalization Service.

Multinational executives and managers:

The immigrant must have been employed outside the United States for at least one year as a manager or executive during the three years preceding the petition for his or her entry as a non-immigrant, and the prospective employer in the United States must be the branch, affiliate or subsidiary of the same company who employed the alien abroad; and the prospective United States employer has been doing business for at least one year. A Labor Certification Application, explained below, is not required for the above three subcategories.

Second preference (Labor Certification Required):

Professional holding advanced degrees and aliens of exceptional ability This category is for members of the profession holding advanced degrees or their equivalent, or who, because of their exceptional ability in the sciences, arts or business will substantially benefit prospectively the national economy, cultural, or educational interests or welfare of the United States and whose services are sought by an employer in the United States. A bachelor's degree plus five years professional experience in the profession constitutes the equivalent of an advanced degree.

Third preference (Labor Certification Required):

Skilled workers, professionals holding basic degrees, and "other" workers: Skilled workers must have two years training
or experience, and the job may not be temporary or seasonal. A professional must hold a United States or equivalent baccalaureate degree and be a member of one of the professions. The job offered must require a baccalaureate degree
for entry into the particular occupation. "Other workers" include non-temporary or seasonal unskilled laborers.

Fourth preference for Certain Special Immigrants:

You may be eligible for an employment-based, fourth preference visa if you are a special immigrant. The following special immigrants are eligible for the fourth preference visa:

  • Religious Workers
  • Broadcasters
  • Iraqi/Afghan Translators
  • Iraqis Who Have Assisted the United States
  • International Organization Employees
  • Physicians
  • Armed Forces Members
  • Panama Canal Zone Employees
  • Retired NATO-6 employees
  • Spouses and Children of Deceased NATO-6 employees

Fifth preference:

EB-5 Investor Visa Programs:

(i) Regional Center Investor Visa Programs require the investor to invest $500,00 in a Regional Center Company. Regional Centers each have their own securities offerings and vary greatly in terms of risk and procedures

(ii) Direct Investment in a New Enterprise. The invostor must invest a minimum of $1 million ($500,000 in high unemployment areas) in a new United States business and create jobs for 10 United States workers. If the investor is investing in a high unemployment area of the United States, called a "target area", or a rural area of the United States with a population of below 20,000, the required investment amount is cut to $500,000. A list of target areas are provided by relevant state authorities and are subject to change.

(iii) For the investor who wishes to bail out a troubled business, the investor must invest the required sum and simply maintain the status quo of the employees. (It is not clear at this time whether the number of employees must be a minimum of ten.)

(iv) For the investor who is infusing capital into an ongoing business, which is not in trouble, the investor must increase its net worth by 40% or increase its number of employees by 40% over a two-year period. The investor must show that his or her investment funds were lawfully obtained. The employment creation visa yields a conditional or probationary stay of two years for the investor and his or her family, at the end of which he or she must prove that he or she met the requirements of his or her particular route to this green card, as referenced in the initial business plan. __________________________________________

Basic Naturalization Guide :

By definition, naturalization is the process by which a person, formerly not a citizen of a country, becomes a citizen
of a country.

Generally speaking, an alien must have been lawfully admitted to the United States for permanent residence, and must have resided as a lawful permanent resident in the United States for at least five years to be eligible to apply for United States citizenship. An exception is in the case of the spouse of a United States citizen, who may be eligible to apply for citizenship after three years as a permanent resident, or certain persons derivatively eligible through parents.

An applicant for U.S. citizenship must be at least 18 years of age, except that children under 18 years may be naturalized through a parent's naturalization, or if already naturalized the parents may file a separate application on behalf of the child. An applicant for U.S. Citizenship must have resided continuously in the United States as a permanent resident for a period of at least five years (or three years) during the five years immediately preceding the date of filing his application, and must have been physically present in the United States for periods totaling at least half that time (30 months, or 18 months for spouses of U.S. Citizens). Other complex residence requirements may apply, depending on the situation.

While seemingly simple in application, issues relating to Naturalization can be complex. It is advised that competent legal counsel be consulted before proceeding with an Application for Naturalization to insure that not only the Naturalization process is not jeopardized, but the permanent residence status as well.

Green Card Lottery:

Every year the United States government is authorized to issue 50,000 "Green Cards" (Permanent Residence Visas") through the Diversity Immigrant Visa Program, also known as the "DV-Lottery", or "Green Card Lottery".

Applicants are chosen randomly by a computer-generated drawing. It is very important that the application is properly completed and submitted. Registration for the Green Card Lottery is normally held in the late autumn of each year and results are posted in the spring of the next year.

Applicants must be have been born in certain qualifying countries and although there is no age restriction on applicants, they must have a high school education, or employment which normally requires two year experience.

While the application process looks easy on the Internet, there are issues that can make the registration application void, even after the Alien is notified that they have "won" the Lottery.

Lottery registration can have hidden pitfalls that my prevent a successful applicant from achieving their immigration goal of permanent residence in the United States.

Competent legal counsel should be consulted before applying for registration in the "Green Card Lottery".

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THE BAR TO ADMISSIBILITY
FOR PERSONS WHO HAVE OVERSTAYED
OR WHO HAVE WORKED WITHOUT
EMPLOYMENT AUTHORIZATION

Beware, people who have overstayed their authorized stay in the United States, or who have worked without employment authorization - - With the exception of Spouses and Step Children and Parents of U.S. Citizens, a BAR TO ADMISSIBILITY applies, preventing an overstaying person from being admitted to the United States as a Nonimmigrant, or becoming a U.S. Permanent Resident until they have left the USA for a specified period of time, either three or ten years.

"BAR TO ADMISSIBILITY"
INTO THE UNITED STATES FOR ANY PURPOSE

(Note: Any person who applies for permanent residence or for a nonimmigrant visa,
even though they are physically present in the United States, is "applying for admission".)

Section 212(a)(9)(B) of the Immigration & Nationality Act, effective April 1, 1997, created two "Bars" to admissibility for aliens who were "unlawfully present" in the United States, i.e., overstayed a period of authorized admission by a period specified in the law, accepted unauthorized employment, or entered without inspection [inspection means inspection by an immigration officer.

"Bar", in this instance, means "prohibition" and "Admissibility" means entry into the United States for any purpose, either nonimmigrant, or as an immigrant permanent resident. Since (with the exception of INA 245(c) exempt persons) persons who are out of visa status, and persons who entered uninspected (illegally) can neither change status or adjust status to permanent residence within the United States, they must all leave the United States to apply for immigration benefits. It is upon leaving the United States that the Bar to Admissibility raises, and the person is prohibited from returning to the United States until they have satisfied the requirements of the Bar to Admissibility.

Note that even if a person manages to make it back tot he USA without the Bar to Admissibility issue being spotted (such as on a Visa Waiver), this does not waive the Bar to Admissibility, and that person may be caught by the immigration service if they apply for future immigration benefits.

THERE ARE TWO DIFFERENT BARS TO ADMISSIBILITY . . . . .

BAR 1:

An alien unlawfully present for more than 180 days but less than one year, but who left the United States voluntarily before removal proceedings began, is inadmissible for three (3) years from the date of departure or removal from the United States.

BAR 2:

An alien unlawfully present for 365 days or more is inadmissible for 10 (ten) years from the date of departure or removal from the United States.

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The "Bar to Admissibility", under the definitions contained in
Immigration & Nationality Act Section 212(a)(9)(B) applies to:

      • a person who entered the United States without inspection (illegally)
        and stayed longer than the requisite period of time, or . . . .
      • a person who overstayed a nonimmigrant visa for longer than the
        requisite period of time, unless they qualify for a Waiver*, or . . . .
      • a person who engaged in unauthorized employment in violation of
        the terms of their nonimmigrant visa, cannot be admitted for permanent
        residence until the applicable departure time requirement of the "bar"
        has been satisfied, by remaining outside the United States for a period
        of three (3) or ten (10) years, unless they qualify for a Waiver*.

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* EXCEPTIONS (WAIVER) TO THE BAR, OR SATISFYING
   THE BAR TO ADMISSIBILITY REQUIREMENTS


The Bar to Admissibility can be satisfied by the alien leaving the United States for the required period of time. In addition, exceptions to the Bars to Admissibility exist for minors, asylees, family unity beneficiaries, spouses, parents, and minor children of U.S. citizens, spouses, and minor children of lawful permanent residents, and battered spouses and children.

Also, the "unlawfully present" periods are tolled for up to 120 days for those who were admitted or paroled and who thereafter filed a "nonfrivolous" application for change or extension of status before their authorized stay expired, and were not employed without employment authorization.

A person who made an uninspected entry (entered illegally without being inspected by an immigration officer) into the United States is not eligible for the Waiver of the Bar to Admissibility while they are in the United States, even if they are in one of the otherwise excepted categories.

Adjustment of status to that of Permanent Resident is not allowed within the United States for persons who entered illegally without inspection by an immigration officer. They MUST go to the U.S. Embassy or Consulate in their home country for issuance of a Permanent Residence Visa, after the Relative Petition is approved by the Immigration Service and an interview is scheduled.

Upon proper application at the U.S. Embassy or Consulate at the time of the permanent residence interview, the "Bar to Admissibility" may be waived for an immigrant who is the spouse or minor child of a U.S. Citizen or the spouse of a lawful permanent resident who made an unlawful entry, if extreme hardship would result to the qualifying U.S. Citizen or permanent resident alien relative. As a practical matter, his type of waiver is routinely given at the U.S. Consulate outside the United States without strict application of the hardship rule.

The law relating to the Bar to Admissibility and its exemptions are very complex. We advise seeking the advice of competent legal counsel for assistance in all family and business related immigration matters.


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