Episode 3: Nonimmigrant visas versus immigrant visas - What's the difference?
Hello and welcome to The Listening Lawyers. Today we are going to be talking about immigrant and nonimmigrant visas, and explaining the difference between the two. When you hear the word “immigration” what do you normally think of?
I think of someone who is going to stay here permanently. In the past it would have been someone coming to Ellis Island and then building their family here in the United States.
As you can see, the idea of immigration is generally viewed as a permanent thing, not something short-term. In fact, our immigration law presumes that ALL persons seeking entry in the US are immigrants wanting to be here permanently. However, the United States has multiple types of what is called “immigration.” The first, like most people think of, is for people intending to immigrate to the United States and stay. The second, which many people do not realize is a part of immigration law, is temporary immigration, or coming as a nonimmigrant.
To show the main difference between the two, it is important to look at intent: what does someone intend to do in the future after coming to the United States?
An immigrant is going to come here and stay. Think someone who marries a United States citizen, which we will also talk about later in the podcast. They likely want to stay in the United States to be with their spouse and they intend to do so.
However, on the other side, there are nonimmigrants. They may come here for a short period of time, but they do not intend to stay as their stay is temporary. An example of this is a student. A student will come to the United States to study, and then they intend to return home.
This is a very important distinction for most classes of noncitizens, although there are a few types of visas which can allow what is called “dual intent.” This is for a really small subset of nonimmigrants. Dual intent is when nonimmigrants can have both the short-term intent to leave and a long-term intent to stay in the United States. It is only applicable for H-1B specialty occupations, department of defense cooperative research and development project workers, and fashion models; L visas for intracompany transferees; O visas for individuals with extraordinary ability or achievement, P-visas for athletes, entertainers, performers, and artists; and E visas for treaty traders and investors. This dual intent doctrine allows them to register for an immigrant visa while still being able to enter the United States on a nonimmigrant visa.
For all other statuses which cannot have dual intent, this does not mean that their circumstances cannot change. If someone has registered for an immigrant visa, and something comes up where they need a nonimmigrant visa which does not allow dual intent, there is the possibility of getting that nonimmigrant visa due to changed circumstances. An example of this is if they have business or family emergencies in the United States.
So now that we know what makes the difference between the types of immigration, what kinds of visas fall in each category?
Nonimmigrants will include:
Visitors on vacation
Immigrants will include:
Relatives such as the spouse of a United States citizen
And permanent employees
Now that you have an idea of the various types of status and how they relate to immigration, let’s take an in-depth look at two specific types. Before we start, I want to point out that every single situation is unique because everyone’s life story is different. Crimes, past activities, current immigration status – all these things can have an effect on immigration. Therefore, the situations we discuss are examples. If you are planning to go to school in the United States, marry, or have married a United States citizen, please contact an immigration attorney to determine how to move forward.
Now let me explain an example for a non-immigrant visa by providing a back story for Maria. If you remember, Trisha’s example was that Maria was here as a student on an F Visa. The F visa is fairly broad in terms of the type of studying it covers, but it is important to note that there is another student visa called the M Visa—this is specifically for vocational students.
Like any other student, Maria will need to apply at a school here in the US and be accepted. Acceptance is important as she cannot begin the visa application without it. And more importantly, the school must be a SEVP approved school.
A what school??
SEVP – it stands for the Student and Exchange Visitor Program and is an agency within ICE (Immigration and Customs Enforcement). This SEVP program administers an online system called SEVIS – Student and Exchange Visitor Information System. I don’t know if you’ve figured it out yet, but immigration really likes its alphabet soup!
So, in order to apply for a student visa, the student must be admitted to a school that is SEVP approved – meaning they are in touch with SEVP and have a Designated School Official. The list of schools that are approved is pretty extensive and can be found at studyinthestates.dhs.gov.
So, once a person finds a school and is accepted, what does the visa application process look like?
Ok, so Maria applies at an SEVP school, is accepted, she must then register with SEVIS and pay a fee using form I-901. Once this is finalized and registration is complete, SEVIS will issue a form I-20, which is a Certificate of Eligibility for Nonimmigrant Student Status. Now, in this example Maria is single, but it is important to note, that if the student has a spouse and or children, then each family member will need an I-20. The I-20 form lists your program start date, 30 days before which you are allowed to enter the United States. F-1 and M-1 students can be issued up to 120 days in advance of your study start date.
Once the I-20 is issued to you, the next step is to apply at a US Embassy or Consulate for a student visa – either the F or M. To do this, Maria needs to fill out form DS-160, which is an online application through the US Department of State. This form is only available online. Once this is completed and submitted, an interview will be scheduled at the US Embassy or consulate in Maria’s home country. When she goes to this interview, she will need to present the I-20.
The wait time for this varies and is dependent on which Embassy or Consulate is closest to Maria.
One of the things I haven’t touched on yet is the type of evidence Maria will need when filling out the different forms. For an F visa, Maria needs to prove
That she has a foreign address that she does not intend to abandon – remember, this is a nonimmigrant visa so Maria has to go home at some point
That she is a bona fide student qualified to pursue a full course of study
This includes proof of acceptance at an SEVP school
Information about the course of study
Information about the Designated School Official
Proof of financial support during time in the US
Prior visa information, if there is any
Proof of no criminal history
Health and Mental Health history
Proof of citizenship
Information about parents
Information about any relatives she has living in the United States
Once Maria is issued her visa, she must, by law, maintain a full course of study. Now, things happen because life happens. Any number of things or circumstances could pop up that would need Maria to lower her course load. This can happen, but the key here is that Maria may not reduce her course load without obtaining permission from the DSO – her Designated School Official. Maria may reduce her course load one time per academic level unless it is for medical reason and then only for a maximum of 12 months.
Can Maria work on an F visa?
That’s not an easy answer, and honestly is better to save for its own podcast. In short, yes, but there are lots of requirements and restrictions. The key is that the purpose of the F Visa is to study in a full course load. any job or internship that forces Maria to reduce her course load could potentially put her out of status and subject to deportation.
let’s say James is a United States Citizen. He goes to university and while he’s there he starts dating Maria, who is here as a student. Maria entered the country on a student visa and is in F status. They fall in love and decide to get married. Now what?
the first thing is, if Maria wants to stay in the United States, they need to actually get married so that she is an immediate relative of a United States Citizen. The marriage has to be valid under the laws of the place of marriage. So, for instance, if they get married in Iowa, the marriage has to confirm to the laws of Iowa. Once married, she will be in a category called an immediate relative, which means the couple can file for both an immigrant visa AND a green card at the same time without Maria leaving the United States.
Hold on, what happens if Maria wants to go finish her studies in her home country?
Then there is a different process depending on if they are married or if she wants to come back to the United States on a fiancée visa. We’ll stick with the married version. In that case, James would file for the only the immigrant visa for Maria with United States Citizenship and Immigration Services as well as submit additional information to the National Visa Center and Maria would do the processing to get the visa outside of the United States, which includes going to the consulate for an interview. Once the visa is approved, she would enter the United States with that visa and the green card would come in the mail later.
OK so let’s say she plans on staying in the US.
OK, so James and Maria have a lovely wedding and then James will file for an immigrant visa and what is called adjustment of status at the same time with United States Citizenship and Immigration Services.
What does that look like?
It is a big package of a bunch of forms and evidence. As of January 27, 2021, the current forms to submit include the I-130, petition for alien relative, the I-485, application to adjust status, I-944, declaration of self-sufficiency, I-864, affidavit of support, and I-693, medical examination. If Maria wants to work while the application for the green card is pending, she can also submit the Form I-765, application for employment authorization. Also, let’s say she has a friend’s wedding in her home country that she knows she needs to attend because she is a bridesmaid. If this happens, she needs to submit the form I-131, application for a travel document, so that she can temporarily travel abroad while the I-485 is pending. If she leaves without an advance parole document, she will have abandoned the I-485.
What evidence is needed?
there is a lot of evidence that is needed, and this is not an exhaustive list. First, documents which show that James is a U.S. Citizen such as his birth certificate or passport. Next, they will have to show that they are married with a marriage certificate, as well as evidence that the marriage is bona fide, or, in other words, real. This can include documents showing they live together, have joint financial resources, or have children together. Affidavits from other people can also be used if the other people have personal knowledge of the marital relationship. Next, Maria will have to include her identity document such as a passport, a copy of information showing that she entered lawfully, a copy of her birth certificate, information about James’ financials including a copy of James’ federal income tax return, as well as a ton of information related to Maria and her ability to demonstrate that she will not become what is considered a public charge, which by the way, could be a whole podcast itself. If there are any crimes, that evidence must be included. There is definitely a lot of evidence needed for this type of application.
Once all this is submitted, how long does this take?
This process can be long and drawn out. Plan on a year or two. It depends on where you are located, as well as if there are any requests for evidence which can draw out the process even more. There will be multiple steps while the case is pending such as Maria getting her biometrics taken and having an interview. However, once its approved, she will likely get a conditional resident card.
Wait, she’s a conditional resident?
If the marriage is less than 2 years old at the time immigrant status is granted, Maria will receive conditional resident status. If the marriage is more than 2 years old at the time immigrant status is granted, Maria will not have the conditional resident status. If she does have conditional resident status, there are a couple more hoops to jump through. 90 days before the second anniversary of the grant of conditional resident status, James and Maria will have to file a petition to remove conditions, called the I-751. This is intended to reduce marriage fraud because it requires the couple to show that 1) the marriage was legal where it took place; 2) that the marriage has not been terminated; 3) the couple did not get married just to get residency for Maria; and 4) Maria did not pay a fee to James to get married.
If everything is on the up-and-up, the conditions will be removed, and Maria will get a regular green card.