New York Visa Attorneys in New York City – NY

Giselle Ayala, Esq.

Immigration Attorney

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Visas for Academics & Students

Foreign professors and researchers coming into the U.S. have expanded the community of science and technology specialists, bringing with them new and innovative ideas. The challenge for professors and researchers lies in selecting the appropriate pathway to bring and retain these individuals in the U.S. We present here an overview of some of the most commonly used nonimmigrant US visa options for professors and researchers (academic & student visas).

J-1 Visa Program

The Exchange Visitor (J) non-immigrant visa was created for individuals who have been approved to participate in work-and study-based exchange visitor programs. This type of visa is particular not only because it has specific regulations for those who might want to get a green card but also because the Participants are integral to the success of the J-1 visa program.

How to Get a Work Visa in the US

Currently, U.S. immigration laws provide several paths for foreign workers to enter the country for employment purposes. Employment visas are for persons who want to enter the United States for employment lasting a fixed period of time and are not considered permanent or indefinite. Our visa attorneys in NYC can help you decide on the best New York employment visa.

The primary form I-129, asks for information about the employer and the position to be filled by the foreign national. The form must be accompanied by supporting documentation, such as the incorporation documents of the employer, authorization to do business, corporate minutes reflecting the decision to hire the foreign national, internal documents with the description of the position, brochures, corporate or organizational charts, and financial statements. among others.

Regarding the petition of the dependents of the workers, dependents of employer-sponsored foreign nationals are responsible for securing their visas independently. If the dependent is in the United States, Form I-539 Application to Extend/Change Nonimmigrant Status must be prepared for that person. Form I-539 can be submitted together with the employer’s I-129 petition or at a later date after the I-129 petition has been received.

On the other hand, if the dependent is outside the United States, the dependent can apply for a visa at the U.S. consulate. In this case, together with the application, the dependent will have to provide a copy of the form I-797 approval notice for the I-129 and proof of the relationship with the primary visa holder.

H1B Visa in New York

The most common type of work visa in the United States is an H1B visa. U.S. employers utilize the H1B visa program to hire foreign workers for jobs that require specialized, theoretical, or technical knowledge in a specific field or industry. The applicant must have at least a bachelor’s degree or its equivalent and comply with certain requirements. To have an H1B visa granted, the employer must first obtain an approved labor condition application from the Department of Labor (DOL). Then, the rest of the process is completed with USCIS. The H1B visa is a dual intent work visa, which means that it may create a path to residence in the US. Our H1B visa attorneys in New York can help you navigate the U.S. visa process.

E Visas

E visas are temporary work visas (E1 Visas, E2 Visas). The E visa may be granted to treaty traders and investors who come to the United States under a treaty of commerce between the United States and the country of which they are a citizen or national. This category also includes Australian specialty occupation workers. There are several types of E visas. However, as opposed to H1B visas these visas do not necessarily create a path to US residence.

E visas are not subject to lottery, which makes them an interesting option. To apply for an E visa, the applicant must be able to show a plan or business venture that he will perform in the US related directly to trade and commerce. The volume of trade between the US and the country of citizenship or nationality of the applicant is also considered before adjudication. Our E1, E2, and E Visa attorneys in New York can help you through the U.S. visa process.

R Work Visas For Religious Occupations

The R visa is granted to nonimmigrants who come to the United States temporarily to work at least part-time as a minister or in a religious vocation or occupation. The work performed by an R-Visa applicant may include:

• Working with a non-profit religious organizations in the United States;
• Working with religious organizations authorized by a group tax exemption holder to use its group tax exemption; or
• Working with a non-profit organization that is affiliated with a religious denomination in the United States.

To qualify for an R visa, the applicant must have been a member of a religious denomination having a bona fide non-profit religious organization in the United States for at least two years immediately before filing the petition. Contact our visa attorneys in New York to help get started with your visa application and proccess.

TN Visas And Status

A TN visa is granted to nonimmigrant NAFTA Professionals. NAFTA stands for the North American Free Trade Agreement. The TN visa allows Canadian and Mexican citizens to work in prearranged business activities in the US for a national or a foreign employer.

There are two different types of TN visas. The TN-1 visa is for Canadian professionals, and the TN-2 is for Mexican professionals. The TN applicant is required to apply and qualify under one of the listed professions of NAFTA and to adhere to non-immigrant classifications.

H2B Visa

The H2B visa is another type of work visa. These visas are reserved for citizens of certain countries in connection with temporary, seasonal assignments not related to agricultural work. The H2B visa allows US employers or US agents who meet specific regulatory requirements to bring foreign nationals to the United States to fill temporary nonagricultural jobs.

Additionally, the H2B visa must be used to sponsor workers who come to the US to work in positions that offer full-time employment. The employer is also required to obtain a temporary labor certification.

O Visas

O visas are for those who can demonstrate extraordinary ability in science, education, business, athletics, arts, motion picture, or television industries. O visa allows for unlimited extensions. The petition may be filed by a US employer, agent, or even a foreign employer through an agent, but not by the person seeking status.

P Visas

P visas of P classification is typically used by internationally recognized athletes and entertainers, it is available for established entertainment groups, individual athletes, and athletic teams.

If you need help finding a solution for your situation, reserve a confidential consultation with our office and visa attorneys in New York

F-1 Visas for Students and Academics

SEVP is a part of the National Security Investigations Division and acts as a bridge for government organizations that have an interest in information on nonimmigrants whose primary reason for coming to the United States is to be students. SEVP manages schools, nonimmigrant students in the F and M visa classifications and their dependents, visitor programs, and nonimmigrant exchange visitors in the J visa.

The F-1 visa is one of the most popular types of student visas for students seeking to study at a US university or college. Thus, international students planning to pursue degrees in full-time academic programs for Bachelor’s, Master’s, or doctoral programs must obtain a student visa.

It is crucial to understand that a student visa is a non-immigrant visa. It is a temporary visa and applicants must be aware of this when thinking about the F-1 visa as a path to a longer visa or immigration status. As an F-1 student, the duration of the applicant’s stay will vary based on the duration of the educational program.

The Basic F-1 Visa Requirements

There are several F-1 visa rules to keep in mind, the applicant must meet these requirements to be accepted:

Once the applicant is enrolled, a representative of the educational institution, usually someone in charge of the international student’s program, will be in charge of providing the I-20 form. The I-20 form provided by the institution will list the program’s expiration date. This is very important because the applicant is required to earn the corresponding degree before the expiration date on the I-20. This date will also impact the duration of the visa and the allowed time for the student in the US.

The Optional Practical Training (OPT)

The optional practical training program is one type of work permission available for eligible F-1 students. It allows students to get real-world work experience related to their field of study. Although a Designated School Official (DSO) may recommend OPT in SEVIS (the platform for international students), it is the student who must apply for the work permit with the U.S. Citizenship and Immigration Service (USCIS). If the OPT is approved, USCIS will issue an Employment Authorization Document (EAD). The applicant cannot begin working before the start date on the EAD.

Under OPT an international student may work for up to 12 months in the US. For STEM (STEM stands for science, technology, engineering, and mathematics and refers to any subjects that fall under these four disciplines.) graduates, applicants may request two additional years of work in a related field.

Once the OPT terms are finished, if the student has no extensions or additional training available, they will need to return to their home country within 60 days.

Spouses and Unmarried Children of F-1 Students

If an international student has a spouse or unmarried minor (under age 21) children who will accompany the student during the program in the US, the student will receive additional Forms I-20. Family members that are eligible and receive these dependent forms will have to apply for an F-2 visa.

Be Prepared: Know Your Program and Why You Want to Come to the United States

The interview process can be overwhelming for some applicants. To ensure a good experience, the applicant should be prepared for what to expect. Some of the questions the applicant may encounter are these:

• Why do you want to study in the United States?
• Why are you going to take this program of study?
• Why did you choose this institution?
• Can you pursue your course of study in your home country?
• Why do you need to pursue your course of study in the United States?
• What career will your studies prepare you for back home?
• Where will you be staying in the US?
• Do you have family in the US?
• Are you planning to come back?
• Have you been denied a visa before?

If you have any questions about the visa application process or if your visa is delayed or denied, speak with our office as soon as possible.

Visas for Athletes and Artists

Artists’ and athletes’ visas are specially intended to allow internationally recognized professionals to come to the US. These are all non-immigrant visas good for 1 to 5 years, depending on the case and the type of visa. None of these visas require correspondence with the Department of Labor, but they do require consultations with the appropriate labor organization or guild if one exists.

An experienced immigration attorney can help you determine the best way to address this requirement for your specific case.

The O Visa

The O-1 visa is a nonimmigrant for individuals who possess extraordinary ability in the sciences, arts, education, business, or athletics or who have a demonstrated record of extraordinary achievement in the motion picture or television industry and have been recognized nationally or internationally for those achievements.

The O-1 visa applicant is required to demonstrate extraordinary ability in a specific field. To support the petition, there must be evidence of the applicant’s having received a major internationally recognized award or at least three of the following:

To apply for an O-1 Visa, a US employer or agent (or a US agent acting on behalf of a foreign employer) must submit the petition at least 45 days before the job begins but more than 6 months prior to the intended start date. The O-1 visa is employer is case specific.

Advantages of a P-1 Visa?

The P-1A Visa holder is entitled to many benefits in the U.S.:

• Travel unrestricted.
• Engage in part-time study.
• Apply for adjustment of status and lawfully seek to become a permanent resident of the U.S.
• Enter the U.S. and perform for payment or prize money.
• Apply for visas for accompanying essential support personnel and dependents.

Internationally-recognized athlete (P-1A)

The P-1A visa applies to athletes coming temporarily to the United States solely for the purpose of performing at a specific athletic competition as:

• An individual athlete at an internationally recognized level of performance;
• Part of a group or team at an internationally recognized level of performance;
• A professional athlete; or
• An athlete or coach, as part of a team or franchise that is located in the United States and a member of a foreign league or association.

The P-1A classification applies to professional or amateur athletes, and to international teams (a team requires at least two members) coming to compete in events in the United States. Under the US regulations “internationally recognized” refers to an athlete who has a high level of achievement in a field, evidenced by a degree of skill and recognition substantially above the ordinary artist, and to the extent that such achievement is renowned, leading, or well-known in more than one country.

P-1A Visa Eligibility

I. The applicant will perform as an athlete (individually or part of a group) at an internationally recognized level of performance;

II. The applicant will perform as a professional athlete as defined in Section 204(i)(2) of the Immigration and Nationality Act;

III. The applicant will perform as an athlete, or as a coach, as part of a team or franchise that is located in the United States, or as a member of a foreign league or association of 15 or more amateur teams. Here, the foreign league or association must be the highest level of amateur performance in the given country.

Reciprocal Exchange Groups. The P-2 Visa

The P-2 visa was created for individual performers or performers who are part of a group and looking to enter the United States to perform under a reciprocal exchange program.

The P-2 visa allows artists and entertainers to temporarily enter the US to perform for an American audience as long as the performance is part of a program resulting from a formal, reciprocal exchange agreement between an organization in the US and an organization abroad.

The P-2 visa is a non-immigrant visa that allows the applicant to enter the US and perform for payment or prize money, engage in part-time study, and apply for additional visas for essential support personnel and/or immediate family members.

Culturally Unique Program. The P-3 Visa

The P-3 classification, also known as the “culture visa,” applies to individuals coming to the US temporarily to perform, teach or coach as artists or entertainers, individually or as part of a group, under a culturally unique program. P-3 visa holders do not need international recognition. However, they must submit certain evidence, such as publications and/or affidavits attesting to the cultural uniqueness of their skills and whether the proposed program is culturally unique.

If you have any questions about the visa application process or if your visa is delayed or denied, speak with our office as soon as possible.

J-1 Visa Program

Now, the two-year residency requirement is important because the J-1 visa was though to promote cultural exchange. Accordingly, when the applicant agrees to participate in a J-1 Exchange Visitor Program, the applicant may be subject to a two-year home-country physical presence (foreign residence) requirement. This means that the applicant will be required to return to her home country for two years at the end of the exchange visitor program.

In this context, one of the most important issues related to the J-1 visa is determining whether or not the J-1 applicant is subject to the two-year home residency requirement, and if so, what options are available.

What Is the Two-Year Home Residency Requirement?

Under the two-year home residency requirement who come the U.S. in J-1 status cannot become permanent residents, change status or get a work or family-based status in the U.S. until they return to their country of last permanent residence for at least two years cumulatively.

Who Is Subject to the J-1 Requirement?

Those in J-1 status (and their J-2 dependents) can be subject to the two-year residency requirement if any of the following apply to the J-1 program:

1) If the J-1 applicant receives funding from the U.S. government, home government or an international organization to use for the J-1 program.

2) Considering the applicant home country, if the J-1 applicant worked or studied in a field that appears on the “skills list.” of the Department of State the 2-year rule applies. Canada, Australia and Germany are examples of countries that are not on the list. China, India and South Korea are examples of countries that have many skills on the list.

3) If the J-1 participated in a graduate medical training program in the United States under the sponsorship of the Educational Commission for Foreign Medical Graduates.

A J-1 visa holder will be subject to the requirement, even if their funding or field of study changes, or if they leave the U.S. and return in another status. If the principal J-1 exchange visitor is subject to the 2-year home country residence requirement, dependents in J-2 status are also subject

If you are not sure whether you should be subject to the 2-year home residency requirement, please contact your school adviser. You may also request an official “advisory opinion” from the U.S. Department of State. This advisory opinion is a formal determination whether or not you are subject to the 2-year home residency requirement.

Waiver Based on No Objection From Your Home Government

The Home Country “No Objection” Statement is a document that supports a waiver from J requirement. The statement is usually submitted after filing the waiver and a Case Number is received from the Department of State. This is a document that has specific requirements. Additionally, a denial of a “No Objection” statement cannot be appealed.

It is important to note that different countries have different requirements as to when this process may start. Each country may have different processing times for the statement depending on the particular protocols. The No Objection Statement is not submitted by the applicant to the Department of State, the document must be sent directly to the Waiver Review Division from the issuing country’s proper authority.

A Waiver Based on a Request From an Interested Government Agency

Another venue to obtain a J requirement waiver is to have an interested agency submit the request. This that the waiver may be obtained if a U.S. Federal Executive Agency, which has an interest in the case requests that the requirement is waived. For example, an applicant may get a waiver if an J visitor is working on a project for or of interest to a Government agency.

A Waiver Based on Fear of Persecution in Your Country

The “persecution waiver” as it is also known can be granted if the J visa holder can show a credible fear of coming back to her home country. The waiver may be granted even if the applicant is a derivative, a J-2 visa holder. However, the burden of proof is different from that required to prove fear of prosecution as a basis for asylum.

The J visa holder must demonstrate that she fears persecution from the government if required to return home. An applicant may qualify for a J waiver if the applicant is able to demonstrate that if required to return she will be in danger as result of the acts of rebel groups, street gangs, etc. The focus of the analysis is that the applicant will be subject to persecution on account of race, religion, or political opinion.

A Waiver Based on Extreme Hardship to Immediate Relatives in the United States Who Hold Citizenship or Green Cards

The J applicant may file for a waiver if an immediate relative, citizen or green card holder, would suffer extreme hardship, of economic, physical and emotional nature. For instance, a J visa holder may argue that the citizen immediate relative cannot work, or would lose work or health opportunities.

A Request From a State Department of Health

Finally, a J visa holder who took part in a graduate medical training program in the U.S., under the sponsorship of the Educational Commission for Foreign Medical Graduates, may apply for a waiver offered by full-time employment in a healthcare facility in an area where there is a shortage of professional health care, and the applicant agrees to work within 90 days of receiving the residency waiver. Additionally, the applicant is required to show that the position will entail a total of 40 hours per week for at least 3 years.

If you have any questions about the visa application process or if your visa is delayed or denied, speak with our New York office as soon as possible.