Guide to Visas
Introduction
The machine readable visa (commonly referred to as an "MRV") is a stamp that is placed in the passport of the foreign national by a U.S. Consulate Officer (collectively referred to by the Department of State as "CONOFFS") at Consulate Offices and Embassy Offices located abroad. A visa is essentially permission for a foreign national to be in the United States for some particular purpose. There are two types of visas, immigrant and nonimmigrant.
While there are several reasons why an individual may be coming to the United States (i.e. to study or to travel), generally foreign nationals seek entry into the United States to work. Working in the United States shall be the focus of the discussions in this guide, since work is generally the goal of foreign nationals no matter what immigrant or nonimmigrant category they utilize to gain entry into the United States.
The terms "work" and "employment" are defined by the regulations. Generally, if a person is performing services or deriving an income in the United States, then that individual is deemed to be working. However, it may also be the case that an individual could be entering the United States, on behalf of a foreign organization, to take orders, oversee implementation of certain projects and receive compensation from the organization that is located outside the United States. The Immigration Law draws a distinction between act of the "work" performed in the first case and the act of the "work" to be the performed in the second case. These distinctions shall be addressed in the appropriate sections of this guide.
The Role of Government Agencies
While there are many governmental agencies whose regulations may potentially impinge upon the application and entry of a foreign national into the United States (e.g., the U.S. Department of Health and Human Services in connection with health-related situations, or the U.S. Department of Labor in the labor certification context), the inter-related roles of the US Citizenship and Immigration Service ("USCIS") and the U.S. Department of State ("DOS") must be understood by the immigration practitioner.
Consulates and embassies have immigrant and nonimmigrant visa sections that are under the direction of the Visa Office of the DOS. Thus, all consular officials are employees of the DOS and they are expected to carry out their duties in accordance with the guidelines set forth in the Foreign Affairs Manual ("FAM"). The legal determinations made by the consular officials can be challenged by a practitioner by resort to a request for an Advisory Opinion from the DOS Visa Office in Washington D.C. Advisory Opinions may only be sought in connection with substantive legal issues, as all determinations of fact made by the CONOFFS are binding and not subject to review.
On the other hand, the USCIS is part of the U.S. Department of Justice. The central office of the USCIS is located in Washington D.C. The USCIS promulgates regulations, operating instructions ("OIs") and policy directives.
Most of the employees of the USCIS are based in the U.S. while consular officers serve abroad. The USCIS has four regional offices in the United States. There are also twenty-three (23) district offices and several USCIS offices located abroad. In addition, many of the USCIS District Offices have sub-offices. The employees in the district sub-offices report directly to the District Director for that particular office. For example, in the State of New Jersey, there is a sub-office located in Cherry Hill. The Cherry Hill sub-office has jurisdiction over certain cases in which the foreign national has a residence in the southern part of the State.
For ease of conceptualization, it may be said that when a foreign national is outside the United States, the DOS has jurisdiction over the foreign national. When the foreign national enters the U.S., the USCIS has jurisdiction over the foreign national.
This concept is made particularly clear by the fact that the dates for the duration for a nonimmigrant visa granted by a U.S. Consulate Officer may not coincide with the grant of stay that the foreign national may receive on his/her Form I-94, Arrival/Departure Form (the white card placed in a passport by the USCIS officer at the Port-of-Entry ("POE") upon arrival by the foreign national in the United States. See the Appendix for a Sample of the Form I-94, Arrival/Departure Record).
Essentially, the U.S. immigration system is a double-check system. Although a foreign national may hold a MRV that has been issued at a U.S. Consulate office abroad, the visa may be subject to cancellation if an USCIS Officer makes a determination that the visa holder is not coming into the U.S. for the purposes explained.
The Visa Waiver Program
Under the sweeping statutory and regulatory changes to the immigration and nationality laws which were made in 1986, a program called the Visa Waiver Pilot Program (referred to as "VWPP" or the "Visa Waiver Program") was implemented. The Visa Waiver Program permits a foreign national from a certain country (usually a foreign country with a low visa fraud and visa overstay rate such as the countries in Western Europe) to enter the United States for a ninety (90) - day period to visit and travel. It is important to know about the existence and characteristics of the Visa Waiver Program for several reasons:
- The Visa Waiver Program admits individuals from certain countries that are designated (and these countries may be undesignated on a regular basis) by federal regulation; and
- The Visa Waiver Program permits a qualifying foreign national to enter the United States without obtaining a visa through the consulate processing procedure; and
- The foreign national who enters the United States on the Visa Waiver program may only travel and visit; and
- The foreign national who enters the United States on the Visa Waiver Program is given a green arrival/departure record called an I-94W which is stapled into his/her passport (the green I-94W is in lieu of the I-94, which is a white card that is stapled into the foreign nationals passport); and
- Foreign nationals who enter the United States on the Visa Waiver Program may not change their status to a different nonimmigrant visa category or extend their stay, since the status that they have is not actually a visa (and thus, their status cannot be changed or extended).
In practice, it is often the case that the foreign national will come to the attorneys office and show an I-94W and ask about their options. It is important to counsel the client that (1) failure to abide by the terms of the Visa Waiver Program may result in a permanent bar to the future use of the Program; and (2) that if they are interested in obtaining classification in a new nonimmigrant status or changing their status to a different category, they must depart from the United States to do so.
The Visa Waiver Program is constantly under review and new countries are being added and deleted from the existing list. So, if your prospective client is (1) coming to the United States for a period of time not to exceed a ninety (90) - day period; and (2) he/she is planning to visit with friends/family and/or travel in the United States; and (3) your client wants to avoid standing in a line at a U.S. Consulate Office abroad to wait for a visa, the Visa Waiver Program may be a viable option.
Visa Waiver Program Becomes Permanent
President Clinton has signed the "Visa Waiver Permanent Program Act" which makes permanent the pilot program that for the past twelve years has permitted nationals of many countries to enter the US for business and tourism without the necessity of first obtaining a visa. The bill also extends the EB-5 pilot program for another three years, and clarifies when an amended H-1B petition needs to be filed in a corporate restructuring situation. Click on " Visa Waiver Program becomes Permanent says President Clinton " to read the White House Statement by the President. The text of the Bill signed by the President can be accessed by clicking on " Visa Waiver Program - The Bill ".
