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Immigrant and Non-Immigrant Visa Petitions

Updated on
October 27, 2020
Article written by
Attorney Kevin O'Flaherty

In this article, we will discuss immigrant and non-Immigrant visa petitions and answer the following questions:


  • What is an immigrant visa?
  • What are the various categories of immigrant visas?
  • What is a non-immigrant visa?
  • What are the most common non-immigrant visa categories?


Before entering the United States, foreign nationals usually have to obtain a visa. Visas can be broken down into two primary categories: immigrant and non-immigrant. For aliens seeking permanent residence in the United States, an immigrant visa is necessary. For those planning to spend time in the United States but not stay permanently, a non-immigrant visa will suffice. There are many different options for immigrant and non-immigrant visas, and knowing which is the correct one for your situation will make the application process that much easier.


What Is An Immigrant Visa?


A foreign national that intends to live and work permanently in the United States must first secure an immigrant visa. When petitioning for their visa, applicants will follow one of two paths depending on their current residency:


  1. Foreign nationals already residing in the United States, including certain undocumented immigrants, international students, temporary workers, and refugees. These individuals must file for adjustment of status to legal permanent residents with the Bureau of U.S. Citizen and Immigration Services. Those hoping to get to work as soon as possible can apply for a work permit at the same time as their adjustment of status. Once the visa petition is accepted and finalized, the individual becomes a legal immigrant and is authorized to work immediately if they did not already get their work permit, and will receive their green card.
  2. Foreign nationals living outside of the United States. These individuals must petition for a visa at a consular office of the Department of State. Once the visa is approved, they can enter the U.S. and become permanent residents at the port of entry.


What Are The Various Categories Of Immigrant Visas?


The different visa immigrant options are numerous, but it is easier to break them down into two categories: 1) visas not subject to numerical limitations and 2) visas subject to numerical limitations.


Visas not subject to numerical limitations are reserved for immediate family members of U.S. citizens, former U.S. citizens, and resident aliens returning to the United States from abroad. To qualify as a “child” under the immigration law you must be under 21 years of age, unmarried, and be either a legitimate child, illegitimate child, stepchild, adopted child, or a child coming to the U.S. to be adopted. Those entering the U.S. as a “spouse” must have proof of a valid marriage.


Visas subject to numerical limitations are granted to those qualified under family-sponsored programs, employment-related programs, or diversity immigrant visas. Family-sponsored programs and employment-related programs break down further into multiple categories. Both visa types require a lengthy application process involving:


  1. The USCIS must approve an immigrant visa filed by the relative or employer, including some proof of the relationship;
  2. The Department of State must check the availability of an immigrant visa number regardless of the current location of the applicant; and
  3. If an immigrant visa number becomes available, applicants living in the U.S. must change their status to that of a lawful permanent resident. Those living outside the U.S. most visit a U.S. consulate office.


If you are from certain underrepresented countries, the Diversity Lottery also provides another means for gaining your immigrant visa. If you are a native of a country that has few individuals regularly immigrating to the United States and have a high school education, the equivalent of a high school education, or have have a least two years of work experience in the same industry, you can petition for a diversity lottery visa.


What Is A Non-Immingrant Visa?


Non-immigrant visas are for foreign nationals who plan to spend a certain amount of time in the United States but are not seeking permanent residence. The U.S. government breaks down non-immigrant visas into 19 different categories that cover everything from temporary visitors for business and pleasure, career diplomats, students, investors, to religious workers, entertainers, individuals with extraordinary abilities, etc. 


What Are The Most Common Non-Immigrant Visa Categories?


Probably the most common visa petition is for tourists and business travelers. Most of these individuals will be issued a multipurpose B-1/B-2 business/travel visa. These are valid for one year and can be renewed every 6 months after the first year.


Temporary worker non-immigrant visas have also increased in demand lately as employers face a shortage of skilled workers in specific industries, such as technology and agriculture. A majority of these visas will fall under the H-1B category, with agriculture workers usually falling under the H-2A category.


Lastly, the F-1 visa, for students looking to pursue a full academic course of study, is another common nonimmigrant visa. There are other educational and academic employment visas available as well. To find the visa that would best fit your situation, it’s highly suggested that you speak to a qualified immigration attorney.


Immigrant and Non-Immigrant Visa Petitions
Author

Attorney Kevin O'Flaherty

Kevin O’Flaherty is a graduate of the University of Iowa and Chicago-Kent College of Law. He has experience in litigation, estate planning, bankruptcy, real estate, and comprehensive business representation.

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