What are Non-Immigrant Visas?

Non-immigrant visas are temporary in nature.  These visas allow an individual to work, study, or visit the United States for a temporary period of time.  A non-immigrant may not reside permanently in the United States.  In order to reside permanently in the United States a person must seek an “immigrant visa.” 

It is helpful to think of “non-immigrants” as guests to the United States.  They are welcomed into the country for a specific purpose and are then expected to leave so that they do not wear out their welcome like any well-mannered guest.  As with most aspects of immigration law, issues surrounding these guests are not as simple as one may initially believe.  There are many competing interests for non-immigrant visas, including the need for freedom of movement between citizens of different countries, security of the United States, foreign policy considerations, and the ability to manage a large number of largely unknown individuals.  This chapter will look at several aspects of non-immigrants visas.  First, there is the complicated definition and distinction between non-immigrants and immigrants.  Many times the line between the two is complicated as detailed below.  Second, the non-immigrant categories are often left out of the immigration debate.  The general public knows about those who cross the border without documents, but are generally unaware of the invited guests.  These guests benefit our nation through educational and professional achievements while visiting.  On the other hand, some guests overstay the time period allowed.  These two competing interests (serving the national interests through invited guests vs. securing the nation from those who abuse their invitation) is one that has been difficult for policy makers to solve.  It is also an area that is often lost in the public discourse by rhetoric on both sides that simply ignores the “non-immigrant” categories of immigration.  Finally, as you will read below, the types of non-immigrant visas are diverse and complicated.   It is important to remember that each non-immigrant visa entitles an individual to visit the United States for a certain purpose and for a certain period of time.  For example, a tourist visa (B-2) allows an individual to travel to and visit the United States.  However, it does not allow that individual (or family) to attend school or work in the United States.  Any conduct outside of the purpose of the non-immigrant visa is a violation of the visa.

An individual who enters the United States on a non-immigrant visa seeks to remain in the United States for a specific purpose and for a limited period of time.  In determining whether an individual should be granted a visa the adjudicator (U.S. State Department or United States and Citizenship Services) determines whether the individual is entering for the purpose allowed under the visa requirements.  In most cases, the adjudicator must also determine whether the individual has intent to remain permanently in the United States. Non-immigrant visas contain restrictions as to the type of activity that may be conducted while in the United States.  Non-immigrant visas may allow a person to attend school, work in the United States, attend a conference, visit a national park, or provide protection for the victim of a crime.  Each non-immigrant visa is designated for a specific purpose.  Deviating from that purpose may result in a violation of the terms of the visa and cancellation.  A list of non-immigrant visas can be found at INA § 101(a)(15).  The subsection of the visa (e.g. B visa, H-1B, O1) corresponds to subsection found in INA § 101(15).  In fiscal Year 2012 the U.S. Bureau of Consular Affairs issued 8.9 million non-immigrant visas.[1]

Most non-immigrant visa categories are based on intent – or more accurately stated - the lack of intent to be an “immigrant.”  The intent of the individual is the most important factor in determining whether a person is eligible for a non-immigrant visa.  The adjudicator (the person deciding whether to approve or deny the visa request) will presume that the person applying is an intending immigrant.  In other words, it is presumed by the United States that every individual seeking to come here is intending to live permanent in the United States.  This is why obtaining a non-immigrant visa can be difficult for many individuals.  A successful businessman in China who frequently travel to Europe for business and always returns home will have a much easier time obtaining a non-immigrant visa than a small shop owner in Guatemala who has never traveled outside of his or her country.  The reason is that the adjudicator is presuming that both individuals intend to remain in the United States permanently.  However, the Chinese businessman who travels frequently is able to rebut this presumption by showing his strong ties to China.  The Guatemalan shop owner may not have the same amount of evidenced needed to rebut this presumption.

This presumption is found directly in the statute. INA § 214(b) states:

Every alien (other than a nonimmigrant described in subparagraph (L) or (V) of section 101(a)(15), and other than a nonimmigrant described in any provision of section 101(a)(15)(H)(i) except subclause (b1) of such section) shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status under section 101(a)(15) .  (emphasis added). 

The U.S. Department of State provides additional guidance to its adjudicating officers:

When adjudicating [non-immigrant visas] applications, a consular officer must be careful to recognize that the standards for qualifying for a [non-immigrant visa] are found in the relevant subsections of 101(a)(15) rather than 214(b) itself.  214(b) does not provide any independent standard for qualifying for a [non-immigrant visa], but refers to the specific standards set out in 101(a)(15).[2]

There are a wide variety of non-immigrant visas that serve many purposes.  The Walt Disney Company is a perfect example.  Many international tourists visit Walt Disney World or Disneyland on a tourist visa (B-visa) with their family.  Many of the employees working at the various country pavilions at EPCOT are in the United States on a cultural exchange visa (Q-visa).  Their engineers and technicians may be working for the company on a temporary workers visa (H-1B).  It is also possible that an executive working for the company in Europe may transfer to the United States operations to head a specific department (L-visa).  Non-immigrant visas are very important to the economy of the United States; particularly given the growing globalization of business.

The four visas mentioned above are a small sampling of the overall number of non-immigrant visas, which are described in greater detail later in this chapter.  It is important to note at this point that none of the individuals in the Disney World example had an easy time obtaining their visa.  As mentioned earlier, each individual must overcome the presumption that they intend to remain in the United States (with some exceptions).[3]  The tourist must show that their sole intent is to visit Disney World and return to their home country.  The tourist must show family ties, business ties, and financial ties to their home country to overcome the presumption.  In addition, each person must meet the qualification for their specific visa.  For example, the H-1B engineer must prove that they have at least a bachelor degree in engineering in order to even apply for the visa.  In addition, the Walt Disney World company must meet certain obligations (detailed below) in order to hire an H-1B employee.  

Many non-immigrant requirements can be burdensome on the individual applying and the United States individual or company who will benefit from the issuance of the non-immigrant visa.   A family may not be able to take their child to Disney World for his 10th birthday as promised.  The child is obviously devastated, but this decision also affects the United States.  The family does not stay in the U.S. hotel or eat at the U.S. restaurant.  The U.S. economy loses much needed tourist dollars and a family overseas is frustrated by the visa process. The Q-visa applicant comes to the United States to work at Disney World, sees opportunity for a better life and decides to remain in the United States permanently.  The U.S. government never realizes this person did not return home until three years later when drops of a friend at the airport and is stopped by U.S. Customs and Border Protection. It is this delicate balance that policy-makers, government officials, and the general public must balance in determining who the “guests” of the United States are.     

Perspectives on Non-Immigrant Visas

When most activists, politicians, pundits or coffee house regulars discuss immigration reform, it centers on the so called 11 million “illegal” individuals and their fate (i.e. mass deportation, a path to citizenship, or something in between).  Most assume this number consists almost entirely of individuals who entered the United States with no documentation.  However, it is estimated that close to 40% of the 11 million “illegal” entered the United States with permission and have remained beyond the authorized period.[4]  There is no reliable data on the number of non-immigrant entrants who stay beyond the period authorized upon entry in the United States due to the historically inadequate tracking of data in this area despite a statutory requirement to do so.[5]  The Department of Homeland Security has tested six exit data pilot programs since 2004 with four being discontinued.[6]

The ability to regulate and remove individuals who “overstay” their non-immigrant visa has so far evaded an adequate solution, but has improved over the past few decades.  In 1981, the Select Commission on Immigration and Refugee Policy (SCIRP) recommended a fully automated system to track nonimmigrant arrivals and departures from the United States as one of its recommendations.[7]  The concern about visa overstays began to attract Congressional attention in 1990 with the provisions of the Immigration Reform and Control Act (IRCA) of 1986.[8]  By 1996, the number of visa overstays was estimated at 2.1 million out of a total number of 5.8 million undocumented individuals in the United States.  The number of non-immigrant visa violators represented 41% of the overall total of undocumented individuals.[9]  Congress responded with several provisions of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 aimed at non-immigrant visa overstays.  First, Congress clarified that visas of non-immigrants who stay beyond the authorized period are void.  Second, the law added provisions that created bars to re-entry for someone who overstays beyond 180 days or one year and accrues what is known as unlawful presence.  These bars are commonly referred to as the 3 and 10 year unlawful presence bars.  Finally, the law required the development of an automated entry/exit system that utilizes biometric identification.[10]

In 2002, the Enhanced Border Security and Visa Entry Reform Act of 2002 sought to further address the improvement of visa issuance and the tracking of individuals within the United States on visas.[11]  In 2004, Congress implemented specific recommendations of the 9/11 Commission through the passage of the Intelligence Reform and Terrorism Prevention Act (IRTPA) of 2004.  IRTPA required faster deployment of the biometric entry/exit system, passport security requirement for anyone entering the United States, and new standards for the security of driver’s licenses, identification cards, and social security cards.[12]

The number of visa overstays – along with the number of individuals entering without documentations – appears to be dropping each year.  In 2013 researchers, Robert Warren and John Robert Warren concluded that “total nonimmigrant overstays to the United states dropped from 705,000 to 190,000, or about 73% [per year] over the decade.”[13]  These numbers indicate that Congressional action over the past decade has greatly reduced the number of non-immigrant overstays.

The number of non-immigrant visa overstays remains one of the most important issues in the immigration debate that is largely discussed as a side issue.  It is difficult to balance welcoming “guests” to the United States while discouraging abuse.  Some efforts by Congress have been successful.  A strong entry / exit system for non-immigrant visa holders will allow for proper tracking, and if needed enforcement.  This must be balanced with requirements that are not so rigorous that individuals are frustrated by the process.  The United States must continue to recognize the global economy in which it operates.  More and more individuals and companies will need the free exchange of individuals in the same way we promote the free exchange of ideas and trade.

• What types of personal information is acceptable for the United States to collect from its guests? 

• What type of biometric data is acceptable (fingerprints, retina scans, facial recognition)? 

• How can policy makers and companies work together to balance the competing interests involved in non-immigrant visas?

[1] See, Bureau of Consular Affairs, Report of the Visa Office 2012, U.S. Department of State, Table XVI(A), 2013, cited in Ruth Ellen Wasem, “Nonimmigrant Overstays: Brief Synthesis of the Issue,” Congressional Research Service, January 22, 2014, RS22446.

[2] 9 FAM 41.11 N1.5

[3] As always, there are exceptions to the general rule.  A H-1B applicant may have a dual intent.  In other words, the H-1B visa is a non-immigrant visa to temporarily work in the United States.  However, the law allows for the H-1B visa holder to file for an immigrant visa at the same time without violating the terms of the H-1B, hence the dual intent (simultaneous non-immigrant and immigrant intent).

[4] The latest data that supports the 40% finding is from a 2006 Pew Hispanic Center Report.  Pew Hispanic Center, Fact Sheet, “Modes of Entry for the Unauthorized Migrant Population, May 22, 2006.  See also, PolitiFact-Texas, “John Carter claim that 40 percent of nation’s illegal residents came by plane and overstayed visas draws on 2006 estimate,” Tampa Bay Times, http://www.politifact.com/texas/statements/2013/sep/06/john-carter/john-carter-claim-40-percent-nations-illegal-resid/

[5] Ruth Ellen Wasem, “Nonimmigrant Overstays: Brief Synthesis of the Issue,” Congressional Research Service, January 22, 2014, RS22446, at 4.  The most notable statutory requirement for collecting exit data is § 110 of the Illegal Immigration Reform and Responsibility Act of 1996 (IIRIRA, P.L. 10-208, Div. C).

[6] Wasem at 4.

[7] Select Commission on Immigration and Refugee Policy, U.S. Immigration Policy and the National Interest, Staff Report, Washington, D.C. April 30, 1981, p. xxxiii, cited in Wasem at 5.

[8] Id. at 1

[9] Id.

[10] Wasem at 5.

[11] Id at 5-6.

[12] Id. at 6.

[13] Robert Warren and John Robert Warren, “Unauthorized Immigration to the United States: Annual Estimates and Components of Change, by State, 1990 to 2010,” International Migration Review, vol. 47, no. 2 (June 2013), pp. 296-329; and Robert Warren and John Robert Warren, “A Review of the Declining Numbers of Visa Overstays in the U.S. from 2000 to 2009,” Center for Migration Studies, 2013.