Non-Immigrant vs. Immigrant Status
In the United States., there are two classes of documented non-U.S. citizens, non-immigrants and immigrants.  A non-immigrant is someone who is authorized to enter the U.S. with the intent to stay for a temporary period of time and eventually return to their home country.  An immigrant, otherwise known as a permanent resident, is someone who is authorized to stay in the U.S. indefinitely and thus is not required to eventually return to his or her home country.  The document which proves one is a permanent resident is often referred to as a green card.   

This article focuses on the basic requirements for obtaining a non-immigrant visa, which, in general, but of course subject to exception, is considerably easier to obtain then a green card.  

Visa Ineligibility
Certain individuals are prohibited from entering the U.S.  For example, an individual who has been convicted of certain crimes may be barred from entering the United States and thus unable to obtain a visa.  Therefore, prior to applying for a particular non-immigrant status, it is important to ensure that you are permitted to enter the U.S.  Form DS-156/DS-160 lists the different categories of persons who by law do not qualify for a non-immigrant visa (though, if you fall within one of these categories, you still may be able to enter the U.S. through a waiver of inadmissibility).

Petitions
Most non-immigrant visas are obtained through employment.  Thus, in most situations, your prospective employer will need to provide a federal agency, usually the United States Citizenship and Immigration Service (the “USCIS”), with documentation requesting authorization to employ you for a temporary period of time.  The appropriate document for your employer to file will often (though not always) be a Form I-129 Petition for a Non-immigrant Worker.  

Non-immigrant Status vs. the Actual Visa Document
If the petition filed on your behalf is approved by the USCIS, this means you have received authorization to temporarily reside in the U.S.  However, unless you are already physically present in the U.S., you must obtain a visa before actually entering the United States.

It is important to understand the exact purpose of obtaining a visa.  A visa permits you to request admission into the United States at the port of entry.  However, it does not guarantee you entry into the U.S.  Therefore, even if your petition is approved and you are in fact permitted to reside in the U.S. for a temporary period of time, and even if you are granted a visa at a U.S. consulate, a United States immigration official may prohibit you from entering the U.S.  Generally, you will be barred from entering the U.S. under if the immigration officer believes that you are lying about an important fact that goes to the basis of why you authorized to enter the U.S. in the first place.

Obtaining Your Visa
To obtain a visa, you must apply for it a consulate or embassy in your home country or in the country where you currently reside.  Although people can apply for their visa at any consulate or embassy in the world, you may face difficulties if you apply for a visa at a consulate in a country that is not your place of origin.

Required Documentation
In general, every applicant for a non-immigrant visa must submit, at the minimum, the following documentation:

1. Form I-156/I-160 as evidence that you are not prohibited from entering the U.S.
2. A passport that will remain valid (not expire) for at least six months from the date you enter the U.S.
3. A passport sized photograph
4. Approval Form I-797
5. Unless you are applying for an H-1 or L-1 visa, you also must provide evidence showing that you have strong ties to your home country and thus will eventually return

I-94 Arrival-Departure Record
The amount of time in which you are permitted to stay in the United States as a non-immigrant may be determined by a U.S. immigration officer.  The duration in which you are permitted to stay in the U.S. will be indicated by the U.S. immigration officer on what is called an I-94 Arrival-Departure Record. This document provides the date in which you arrived in the U.S. and the date in which you must return to your home country.

If you wish to remain in the United States for a period longer than authorized by your I-94, you must file the appropriate documents with the USCIS while you status is still valid.  The decision to grant or reject your extension of stay is at the sole discretion of the USCIS.

Accompanying Family Members (Qualified Family Members)
In general, the spouse and unmarried children under the age of 21 of a non-immigrant (a “Qualified Family Member”) may accompany the visa-holder upon entry into the United States.  If a qualified family member wishes to enter and stay in the U.S. with the non-immigrant, he or she must obtain a derivative visa. In most cases, persons who have received a visa as a spouse or unmarried child of the non-immigrant may not accept any work in the United States.  

Applying for a Green Card as a Non-Immigrant Terminates Non-Immigrant Status
With most non-immigrant visas you may not apply for permanent residency (a green card) while you are in status.  For example, if you are residing in the U.S. as a non-immigrant visa-holder, in general, applying for a green card will result in the termination of your non-immigrant status.  This makes sense because by applying for a green card you are declaring that you wish to take up permanent residence in the United States, which is a direct contradiction to the temporary intent of a non-immigrant.  

There are non-immigrant categories that do permit individuals to apply for permanent residence while in status, however.  Such categories include the H-1B and L-1, which are referred to as dual intent categories.  Dual intent categories permit those who, according to their I-94, are required to leave the U.S. upon the duration of their term, to apply for permanent residence without jeopardizing their non-immigrant status.

Ife Ashabo

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