How non-immigrant visas differ from immigrant visas
Separate and apart from immigrant visas, both family- and employment-based, are non-immigrant visas. These visas are available for foreign nationals who wish to come to the U.S. for a period of time set forth by the Attorney General and then return to their home country. These non-immigrant visas encompass the alphabet. They all require the same supporting documentation: to establish ties to the home country, the intent to return to the home country, and the ability to support themselves while in the U.S.
You must be in good status to extend or change
A statement that applies to every non-immigrant category: you have to be in good status to extend or change non-immigrant status. This requires strategized planning — especially if there is a need to maintain status while seeking an employment-based immigrant visa as a skilled or unskilled worker, or in any category in which visas are backlogged. If status lapses before the extension or change is filed, the path forward narrows considerably.
B-1 / B-2 — Visitor for Business or Pleasure
Most people are familiar with a B-1/B-2 Visitor for Business or Visitor for Pleasure, which grants the holder a six-month visa. You cannot work while on a B-1 or B-2 visa. There are, of course, extensions and changes of non-immigrant status available if filed prior to the expiration of the initial visa, as you are ineligible to file to change or extend status if the status has expired.
F-1 — Students & the duration-of-status rule
F-1 visas, for students, are issued D/S, which means duration of stay. As long as you remain in full-time study, which is only 12 hours a week, you remain in good status. If you don’t file to extend or change your non-immigrant status before it expires, you will fall out of status. You will also begin to accrue unlawful presence, which will expose you to the 3/10 bar under IIRIRA. Under this law, if you are here more than 180 days and less than six months and you leave — either because you do so voluntarily, or because you are removed by an Immigration Judge — you will not be able to re-enter for three years; and if you have been here more than 10 years after expiration of your authorized stay, you cannot return for 10 years.
If you overstay your non-immigrant visa, you will likely not be able to obtain another from a consulate abroad. However, an immediate immigrant visa from a United States spouse, or child, excuses unlawful presence, along with unauthorized employment.
F-1, H-3, J-1, L-1, O-1, P, U — the visas that allow employment
There are visas which allow employment.
- F-1 student. Able to work 20 hours a week during the school year, and more on winter and summer breaks.
- H-3 visa. For trainees or special-education exchange visitors coming to the United States for a defined training program. Roberta does not handle H-1B specialty-occupation petitions or H-2B seasonal-worker petitions — for those two categories, a firm specializing in employer-side work-visa filings is the right fit.
- L-1 intracompany transfer. For an executive, manager, or specialized-knowledge employee being transferred from a qualifying foreign company to a U.S. parent, affiliate, or subsidiary. L-1A for executives and managers, L-1B for specialized-knowledge personnel.
- J-1 visas. For exchange students — but there is a specific requirement to return to the home country for two years unless a waiver is obtained which requires a good deal of work and involves the Department of State and the Consulate in the home country.
- O visa. Available to an individual who might also qualify for an EB-1 because of exceptional ability in a given area, or an individual athlete or performer.
- P visas. For individuals in a group coming to the U.S. to perform or compete.
- U visas. Available for victims of qualifying crimes who provide assistance to a qualifying agency.
The non-immigrant backlog
The visas for all of these non-immigrant categories are backlogged — and in some cases, such as U visas, for many years.
No. The B-1/B-2 visa explicitly does not authorize employment in the United States. Working on a B-1/B-2 is unauthorized employment that exposes you to removal proceedings and can affect future immigration benefits. If you need to work in the U.S., you need a non-immigrant category that allows employment (F-1 with proper authorization, H, J, O, P, or others) or you need to adjust to an immigrant visa that includes work authorization.
You begin accruing unlawful presence the day after your authorized stay expires. Under IIRIRA, more than 180 days of unlawful presence triggers a 3-year bar to re-entry if you leave; more than 12 months of unlawful presence triggers a 10-year bar. You will also likely be denied a future non-immigrant visa from a U.S. consulate. The path forward depends on whether you have an immediate immigrant visa available — for example, from a U.S. citizen spouse — that may excuse the unlawful presence.
File the appropriate USCIS form — typically the I-539 for extensions and changes of status — before your current status expires. You have to be in good status to extend or change. If your status has lapsed, you are not eligible to extend or change from within the U.S., and your path forward narrows to consular processing abroad. The strategy depends on the category you are in and the category you are trying to move into.
Non-immigrant visas are for people who want to come to the U.S. for a specific period of time and then go home. Immigrant visas are for people who want to stay here and adjust status to that of a lawful permanent resident — getting a green card. Different categories carry different documentation requirements, different durations, and different paths to lawful permanent residence if any exist at all.
It depends on the non-immigrant category and the basis for the green-card application. Some non-immigrant visas — like H-1B and L-1 — allow dual intent, meaning you can have an immigrant petition pending without it affecting your non-immigrant status. Other categories (B-1/B-2, F-1, J-1) generally do not allow dual intent, and pursuing a green card from within these categories carries specific risks we walk through before filing.