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Although they are often spoken about interchangeably, there are two distinct parts of a nonimmigrant visa: the visa, and the visa status. A visa, or the visa stamp, is what is used to gain entry into the United States. It is often in the form of a sticker or a stamp in an individual’s passport. They typically include a photo of the individual, the individual’s name, the individual's birth date, the type of visa, and other necessary information. A visa is applied for abroad at a consulate or embassy. However, having a visa is not enough to gain entry to the United States alone. Holding a visa shows that a consular officer has decided that the foreign national is qualified to travel to a United States port-of-entry. Once there, the inspector must decide whether or not the foreign national is qualified to enter the United States.
Once an inspector has admitted an individual into the United States, they are conferred a visa status. A visa status refers to the legal category with which the foreign national was admitted into the United States and the foreign national’s duration of stay. When a visa status is granted, individuals are required to abide by specific rules and regulations in order to maintain their status. To successfully enter the United States and receive status, individuals must present all of the required documentation to an inspector at the port-of-entry. If the individual has everything that is required of them, the individual will be issued an entry stamp. The stamp shows the date that the individual entered the United States, the type of status, and the expiration date of the status. When an individual’s status expires, the individual must leave the United States. However, while in the United States, individuals must uphold their status by following the requirements of their particular status. Otherwise, the individual may fall out of status and have to leave the United States.
The exact requirements for a visa vary depending on the type of visa that an individual is applying for. However, typically to receive a visa stamp, foreign nationals must have a valid passport, the qualifications for the visa they are applying for, a completed DS-160 form, photos of themselves to specifications, any visa-specific documentation or supporting documentation, and they must have paid any of the required fees such as the DS-160 application form fee or the reciprocity/issuance fee. For visa status, individuals must have their visa stamp, valid passport, and any other documents that a customs officer may request. Again, the required documents to be allowed entry into the United States vary depending on the type of visa, however, it is often suggested that foreign nationals bring the same documents when entering the United States that they did to their visa interview.
A visa is applied for when the foreign national submits the DS-160 form and attends a visa interview at the consulate. Depending on the type of visa, foreign nationals may have to submit petitions for their visa, or other documentation such as a labor condition application (LCA) before the DS-160 form and other supporting documentation. If the foreign national is between the ages of 14 and 79, they most likely will have to attend a visa interview at a consulate or embassy. Following the interview, some applications may require additional processing. However, if the foreign national qualifies for the visa and has submitted all of the required documents, they typically will receive their visa soon after in their passport.
Meanwhile, visa status is applied for when entering the United States, or, through a change of status application once the foreign national is already in the United States.
Both visas and visa statuses have expiration dates, which can be a little confusing considering they are not always the same. Visa stamps can have varying expiration dates, number of entries, and required fees depending on the reciprocity schedule between the individual’s home country and the United States. Under reciprocity, the terms that the United States government sets for visas are based on the foreign country’s rules towards United States citizens for a comparable visa category. Therefore, depending on the type of visa and the country from which the individual is from, expiration dates on visas may be very different. However, the visa expiration date is only important when the foreign national is trying to enter the United States or re-enter the United States. It is not required that a visa be valid once the foreign national is already in the United States with an active status unless the foreign national wishes to leave the United States and re-enter on the same visa.
Visa status also has an expiration date. The status expiration date is given at the port-of-entry by the officer who admits the foreign national into the United States on a stamp or I-94 form. The expiration date can either be an actual date, or simply D/S, meaning duration of status, indicating that the individual’s status will end when an underlying document such as a DS-2019 form expires. Foreign nationals must leave the United States when their status expires, and while they are in the United States, they must follow the rules and requirements to uphold their status. Ultimately, while the visa expiration impacts entry to the United States, the visa status expiration date dictates how long an individual can stay in the United States and is very important to uphold throughout a visit. Individuals should be aware of their visa status expiration date upon entry in order to make sure they depart the United States on time.
H-1B1 visas allow for nationals of Singapore or Chile to come to the United States for a specialty occupation. 1,400 individuals from Singapore and 5,400 individuals from Chile can come to the United States every year—a maximum of 6,800 H-1B1 visas for principal visa holders may be issued in a year. This visa status comes from the Free Trade Agreements (FTA), and therefore is only available to nationals from Singapore and Chile. Like for an H-1 visa, Employers of H-1B1 individuals must first file a labor condition application (LCA). The Department of State (DOS) and the Department of Homeland Security (DHS) must certify the labor condition application (LCA). However, H-1B1 employers are not subject to some of the requirements that H-1 employers are. Foreign nationals can apply for the H-1B1 visa once the labor condition application has been approved at a consulate in the home country. H-1B1 status is normally valid for a year. Individuals can apply for extensions that are granted in 1-year increments. Each year, if the H-1B1 visa cap is not met, the number of available visas is added to the cap of H-1B visas between October and November of the next fiscal year.
Similarly to H-1B1 visas, TN visas are only available to specific nationals, specifically from Canada and Mexico. The TN visa and status was created by the North American Free Trade Agreement (NAFTA). Through the North American Free Trade Agreement (NAFTA), foreign nationals who are considered to be professionals may come to the United States for employment if they are from Canada and Mexico. The North American Free Trade Agreement (NAFTA) identifies specific professions that may come to the United States with a TN visa/status. A TN petition is approved for 3 years. Individuals may also apply for extensions or start a new period of status if they apply at a consulate abroad or a United States port-of-entry.
Australian nationals who are coming to the United States for a specialty occupation may apply for an E-3 visa. Unlike the E-1 and E-2 treaty visas, E-3 visa holders are not limited to work relating to international investment or trade. The REAL ID Act in 2005 made the E-3 visa category. This visa is often grouped with the H-1B visa classification although they are not exactly the same.
There are some similar similarities and major differences between TN visas, H-1B1 visas, and E-3 visas. In general, while TN visas are valid for 3 years, H-1B1 visas are valid for 1 year, and E-3 visas are valid for 2 years. However, foreign nationals who hold any of these visas may apply for an extension. For individual requirements, only nationals from certain countries may apply for an H-1B1 visa, a TN visa, or an E-3 visa. All visas require that the foreign national have nonimmigrant intent, meaning that they only plan to stay in the United States on a temporary basis. All visas also require foreign nationals to have qualifying educational and professional backgrounds. For H-1B1 visas, individuals may need a state license (if it is required) or a bachelor’s degree (or the educational or professional equivalent). The foreign national must fit one of the following qualifications; they must hold a bachelor’s degree or higher, they must hold a foreign equivalent of a bachelor’s degree, they must hold a state license for their profession, or they must have professional experience equivalent to a bachelor’s degree and have recognition in their profession. Meanwhile, TN visas require either a degree, license, or professional experience depending on the profession, although a bachelor’s degree is most often required. Likewise, the foreign national must be a business person, meaning they trade goods, provide services, or partake in investment activities. Neither visa allows the foreign national to be self-employed. Lastly, E-3 visas require at least a bachelor’s degree and the proper educational background for the foreign national’s intended specialty position.
There are also some major differences in job and employer requirements for H-1B1, TN, and E-3 visas. While the H-1B1 visa and E-3 visa only requires for foreign nationals to engage in a specialty occupation (a position which requires the theoretical and practical application of specialized acquired knowledge and for which a bachelor’s degree or the equivalent) which covers a wide range of fields, the TN visa has a limited amount of positions that individuals may qualify with. Although, all visas allow for part-time and full-time employment. Likewise, a labor condition application (LCA) is required for H-1B1 and E-3 applicants. Employers of H-1B1 and E-3 individuals must file a labor condition application and agree to follow the extensive employer requirements. Because of the labor condition application (LCA), H-1B1 and E-3 employers may be subject to many more requirements than a TN employer. One such requirement regards labor disputes; there cannot be a labor dispute in the same area and occupation of the foreign national at the time of filing. Similarly, TN visas may not be issued and may be suspended if there is an ongoing labor dispute in the same occupation as the foreign national.
The application process for an H-1B1 visa and an E-3 visa is drastically different from that of a TN visa. For an H-1B1 visa and an E-3 visa, unlike a normal H-1B visa, a petition is not required. Thus, the application process begins with the employer filing a labor condition application. Once the labor condition application has been certified, foreign nationals may go to their consulate to apply for the visa. This part of the application process follows the typical steps for applying for a visa, including submitting a DS-160 form and paying the required fee, gathering any required supplementary documentation, and attending a visa interview. Meanwhile, for TN visas there are 3 different ways that foreign nationals may apply, 2 methods for Canadian nationals, and 1 way for Mexican nationals. Canadian nationals may apply for TN status directly at the port-of-entry, United States international airport, or pre-clearance station or pre-flight station, by presenting the required documentation. Otherwise, Canadian nationals may submit a petition, including an I-129 form, beforehand. Although it may take longer to receive TN status and cost more money when applying through a petition, it is considered to be the more secure option. Meanwhile, Mexican nationals must apply through a consulate with the typical visa application documents including a DS-160 and other supporting documentation. Both visas can take a varying amount of time to process.
Foreign nationals who have extraordinary abilities in the fields of science, arts, education, athletics, business, television, and motion pictures can apply for an O-1 visa. O-1 visas allow for foreign nationals to work temporarily in the United States. They typically remain valid for up to 3 years, although in certain cases, individuals who hold O status can obtain an unlimited amount of extensions. With an O visa, principal visa holders can bring dependent family members, including spouses and children, to the United States through an O-3 dependent visa.
Foreign nationals who are coming to the United States to work in a specialty occupation with a United States employer may apply for an H-1B visa. This can include fashion models and foreign nationals working for the Department of Defense (DOD). The initial H-1B petition is valid for up to 3 years. H-1N status can be extended as well, although there is a maximum period of 6 years that a foreign national can hold H-1B status. For an H-1B visa, the petitioning employer has to file a labor condition application and an H-1B petition before the foreign national can apply for the visa. There is also a limit to the amount of H-1B visas that can be issued each year: 65,000 for normal status and an extra 20,000 for individuals with advanced United States degrees. With an H-1B visa, principal visa holders can bring dependent family members, including spouses and children, to the United States through an H-4 visa.
There are many different requirements for O-1 visas and H-1B visas. O-1 visas require that the foreign national have long-term recognition, either nationally or internationally along with extraordinary ability and achievements in the field. The fields that qualify for O visas include the arts, athletics, business, education, and science. The standards required of the applicant varies by field. Meanwhile, H-1B visas require the foreign national to have a state license if it is required, a bachelor’s degree or higher, or the expertise and experience equivalent to a degree. Likewise, the foreign national must possess one of the following qualifications: a bachelor’s degree or a higher degree from qualifying college or university required by the position, a foreign degree equal to a bachelor’s degree or higher, a license to work in the state, or experience and recognition in the position that is comparable to a bachelor’s degree or higher. While the O-1 visa has specific industries that foreign nationals may qualify under, the H-1B visa requires that a foreign national be working in a specialty occupation, in which the foreign national theoretically and practically applies specialized knowledge. There are more fields permitted for H-1B visas than for O-1 visas. Likewise, while O-1 visas require an event that the foreign national wishes to attend in order to qualify, H-1B visas simply require qualifying employment that is either part-time or full-time and is intended to be temporary. Both visas require nonimmigrant intent, but offer dual intent, allowing the foreign national to take steps towards becoming a permanent resident in the United States while applying or holding a nonimmigrant visa without losing status.
Though both visas require petitions, O-1 visas are much more strict about the requirements of petition filing. For an O-1 visa, a United States employer, a United States agent, or, a foreign employer through a United States agent can file a petition. While H-1B petitions may also be filed by an agent or the United States employer (however, not a foreign employer through an agent), there are fewer requirements of the petitioning agent than of O-1 visas.
Both visas have restrictions around labor disputes, involuntary termination, and both allow for a 60-day grace period if a foreign national’s employment ends. However, only H-1B visas require the employer to file a labor condition application (LCA) beforehand. Employers for H-1B visas must also pay extensive fees and agree to attestations that O-1 employers do not have to do. Although, while there are more requirements of an H-1B employer in this sense, O-1 visa petitions require extensive supporting documentation.
The application processes between the two visas have a few similarities. Both visas require a petition that must be filed and approved before the individual may apply for the visa. While the H-1B petition requires the employer to file a labor condition application (LCA), it overall requires less extensive documentation than the O-1 petition. The O-1 petition must include a detailed index of exhibits that includes proof of the individual’s extraordinary ability and achievements, an advisory opinion, and more. However, H-1B petitions also require the employer to pay numerous fees that an O-1 petition does not require. The timing of the submission of the H-1B petition holds great importance. Due to the yearly cap of H-1B visas that may be approved and the high demand for the classification of visa, petitioners should submit the petition on April 1 in order to have the best chance of having the petition be approved. This is not the case for O-1 visas, and the timing of the petition submission is much less important to having the petition be approved.
Once the petition has been approved, both visas have similar application processes for the foreign national. The foreign national must submit the DS-160 form, a photo to specifications, and the required application fee. The individuals should also complete a visa interview at the consulate if necessary. The required documentation for the visa interview depends on the type of visa, the consulate, and other variables.
Once approved, individuals with either visa may arrive in the United States up to 10 days before the petition start date. O-1 visas are valid for up to 3 years with extensions available. H-1B visas are valid for up to 3 years with up to 3 more years of extensions, for a total length of stay of 6 years. There is no limit to the individual’s length of stay on an O-1 visa.
Foreign nationals who are coming to the United States for an exchange program, training, internship, and other State Department (DOS) programs can apply for a J-1 visa. J-1 exchange programs were created to encourage understanding among participating countries and to benefit United States foreign policy objectives. Foreign medical graduates, leaders in a specialized field, professors, research assistants, scholars, specialists, students, teachers, trainees, and individuals with other similar titles can qualify for a J-1 visa. J-1 visas have validity periods ranging from 12 months to 18 months. J-1 holders may sometimes be able to receive extensions, or just apply for a new J-1 visa. Dependent family members, including spouses and children, may come to the United States with a J-2 visa.
An H-3 visa allows for foreign nationals to come to the United States for training. The training must not be available in the foreign national’s home country and help the foreign national in a career outside of the United States. The training cannot be considered to be normal employment or a position that a United States worker could hold, and any productive employment that the foreign national engages in must be necessary for the training program. There is also a subset of the H-3 visa for a Special Education Exchange Visitor Program. This program is very similar to programs for J-1 visas, however, it is meant only for children with disabilities to participate in training and has a yearly limit of 50 participants. H-3 visas can be valid for 2 years. H-3 visa holders may be able to receive extensions, but only for up to 2 years. Dependent family members, including spouses and children, may come to the United States with an H-4 visa.
J-1 visas and H-3 visas have some similar requirements for foreign nationals applying. For both types of visas, foreign nationals must have nonimmigrant intent, meaning that they plan on only staying in the United States on a temporary basis. Likewise, both visas do not allow for dual intent, meaning that foreign nationals cannot be in the process of applying for permanent residency when they apply or hold a nonimmigrant visa. However, a J-1 visa also requires that the foreign national have a qualifying educational and/or professional background depending on the type of program, that the foreign national have sufficient English language skills for the program, and that the foreign national have sufficient funds for the trip. Depending on their home country and circumstances around their program, some J-1 visa holders may have to return to their home country for at least two years due to the 2 home residence requirement.
There are many differences between the program requirements of J-1 and H-3 visas. J-1 visas must be full-time programs (at least 32 hours a week) and must be at least 3 weeks long. The program must be through a qualifying host organization and meet the requirements of the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act. Meanwhile, despite the differences in program requirements, both the J-1 visa and the H-3 visa require that the position that the foreign national holds cannot be a normal employment position. The foreign national should not displace a United States worker. Likewise, while a J-1 visa does not require a petition, it requires a similar level of detail on the foreign national’s training program as an H-3 visa does on a petition. Key details on the position that must be reported include the structure of the program, type of supervision, type of payment, etc. Although only the H-3 visa requires that the training that the foreign national engages in not be available in the foreign national’s home country, both the J-1 and H-3 visa requires that the program that the foreign national engages in having some relation to their studies and/or professional goals in their home country. While this requirement is much more explicit for H-3 visas, as it is stated that the training must benefit the foreign national’s career abroad, J-1 visa programs should be within the foreign national’s academic or professional field. Likewise, part of the intent of the J-1 Exchange Visitor Program is to impart individuals with knowledge and skills necessary for the development of their home country, thus, ultimately both visas have similar objectives.
Finally, only J-1 visa holders are required to have and maintain a Student and Exchange Visitor Information System (SEVIS) record and pay the required fee. Although the program sponsor typically is the one to update the system, J-1 visa holders must tell the sponsor of any updates so the record can be updated. A Student and Exchange Visitor Information System (SEVIS) record is not necessary for an H-3 visa and is only necessary for F, M, and J visa holders and their dependents. Likewise, only H-3 visa holders can be impacted by labor disputes. If there is a labor dispute in the same location and occupation as the foreign national will be or is training, the visa may be denied or suspended if the foreign national would negatively affect the situation.
A petition is required in order to apply for an H-3 visa. The petition is compiled of many forms and supporting documentation, including an I-129 form. Once the petition has been approved, the foreign national may apply for the visa at a consulate. To do so, they must complete the typical required forms, including the DS-160 form, and bring the required documentation with them to the visa interview.
The application process for a J-1 visa greatly differs from the H-3 visa process. One big difference is that foreign nationals applying for J-1 visas must have a sponsor. The sponsor is in charge of approving the foreign national’s intended program, whether that be training, an internship, or other activity. Foreign nationals also require a host organization for the J-1 program. First, a DS-7002 form must be completed. Then, the sponsor must issue a DS-2019, or, Certificate of Eligibility and complete the Student and Exchange Visitor Information System (SEVIS) record. Once these steps have been completed, the foreign national may apply for the visa with the DS-160 form and attend the visa interview. Once the visas have been approved, foreign nationals with H-3 visas may only arrive in the United States up to 10 days before their status starts and have 10 days after their status ends to leave the United States. Meanwhile, foreign nationals with J-1 visas may arrive 30 days before the program start date and may stay remain in the country for 30 days after the program end date.