B-1 & B-2 visas for Tourists, F-1 visas for Students, and J-1 visas for Trainees

B-1 Visas

A B-1 visa is for a person employed abroad to come to the U.S. temporarily on business to attend business meetings or trade shows, buy goods, conduct research, and so forth. A foreign national may be admitted for a period of a few weeks up to six months. Extension for an additional six months is possible for good reason.

A B-1 visa holder may take no compensation directly or indirectly from a U.S. company. If a U.S. company employs a B-1 visa holder, the company may be committing an I-9 violation and the visa holder may be deportable.

A B-1 visa holder may be admitted to install, service, or repair imported equipment, provided the sales contract so states.

B-2 Visas

A B-2 visa is a tourist visa, which allows for admission to the U.S. for a few days up to six months. The DOS rules also permit a domestic partner (same or opposite sex) to use a B-2 visa to accompany a nonimmigrant visa holder – e.g., an E-2, H-1B, or L-1. Admission for this purpose is usually for one year with extensions possible every six months. Saudi princes can even bring multiple wives.

The Visa Waiver Program

The Visa Waiver Program (VWP) allows citizens from 27 participating countries to travel to the U.S. for tourism or business without first obtaining a visa stamp. With a valid passport from a participating country, an individual may come to the U.S., using only certain airlines, for up to 90 days. Among the participating countries in the VWP are Japan, Australia, France, Germany, and the United Kingdom. VWP travelers who overstay, even by a day, may be refused admission to the U.S. on subsequent trips.

Generally, extensions or applications for change of status to another nonimmigrant visa classification or an immigrant visa category are not permitted.

After admission in certain circumstances, a VWP holder can marry a U.S. citizen and apply for adjustment of status, but may be accused of entry fraud. For such, expert legal counsel is highly recommended.

New ESTA System For Visa Waiver Travelers

The Department of Homeland Security ("DHS") released a rule implementing the Electronic System Travel Authorization ("ESTA") for the Visa Waiver Program ("VWP"). The start date is January 12, 2009, but volunteer applications will be accepted August 1, 2008. Applications are submitted online at www.esta.cbp.dhs.gov.

ESTA is a web-based program in which all citizens of VWP countries, including children, regardless of age, will be required to receive an electronic travel authorization prior to boarding a U.S. bound carrier. ESTA approval only authorizes a VWP traveler to board the plane or ship; U.S. Customs and Border Protection (CBP) officers determine admissibility upon entry to the U.S.  Note: the ESTA is not a visa. People traveling with valid visas will not be required to apply for an ESTA.

ESTA applications should be submitted no less than 72 hours prior to travel. Specific travel plans are not required to complete the ESTA but the VWP traveler must provide data including name, birth date, and passport information as well as answer eligibility questions regarding arrests, convictions, communicable diseases, past history of visa revocation, deportation, etc. 

In most cases, ESTA will provide an almost immediate response of "Authorization Approved", "Authorization Pending", or "Authorization Denied".  Applications that are approved will be valid for a period of 2 years or until the applicant's passport expires, whichever comes first.  Pending applications will receive a final response within 72 hours.  Those who are denied will be referred to the Consul to apply for a visa  Once ESTA becomes mandatory, travelers that have not received ESTA approval may be denied boarding, delays or be denied admission to the U.S. 

For additional information about the new ESTA program and FAQ see: http://www.dhs.gov/xnews/releases/pr_1212501117599.shtm  

The Visa Waiver Program countries include: Andorra, Austria, Australia, Belgium, Brunei, Denmark, Finland, France, Germany, Hungary, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom.

F-1 Visas

The F-1 student visa classification allows foreign nationals to attend an academic school in the U.S. To obtain an F-1 visa the individual must show availability of funds, have foreign residence, be proficient in English, and have sufficient academic credentials. A student’s Form I-94 is marked with a “D/S” designation, which indicates that he/she may stay in the U.S. for the duration of status based on the criteria listed on the student’s I-20 form. If students work illegally, take less than a full course load, or drop out, they have violated their status. A student who violates his/her status usually is ineligible to change to another visa classification within the U.S. and must go home to obtain another type of visa to reenter the U.S.

F-1 Practical Training

During college or after graduation, a student may be given permission to work, called “practical training,” for up to 12 months after each degree. In certain circumstances one may obtain curricular practical training while studying for a degree.

Before a student may begin work, he/she must have a valid Employment Authorization Document (EAD) granted by USCIS. This will be issued only after the student has attended school for nine months. Alternatively, an unrestricted social security card and an original notice that the work authorization application has been approved are acceptable.

In both cases, students must obtain these documents before they may begin work.

J-1 Visas

J-1 visas are for trainees, scholars, university students, visiting researchers, and others. This visa is often used for interns. J-1 trainee visas are valid for up to 18 months. J-1 visas need a sponsor authorized by the Department of State to issue a Certificate of Eligibility. A training program is submitted to the sponsor who issued Form DS 2019. The applicant then applies to the consul for a visa.

Some people who receive government funds for their training, clinical medical doctors, or citizens of a developing country on the DOS “Skills List” may be required by the J-1 visa rules to go home for two years before obtaining an H-1B visa or be granted a green card. Waiver of this rule (called 212(e)) is permitted under certain circumstances. Most trainees from Western Europe, Canada, and Japan are not subject to 212(e). J-1 visa holders’ salaries are exempt from FICA taxes.

OPT Valid up to 29 Months for Technology Grads

The new rules create complex criteria for certain F-1 students to be granted OPT for up to 29 months.  This includes both new applications and extending current OPT.

Overview

Foreign students with a degree in science, technology, engineering or mathematics (“STEM”), who have OPT and are working in their field for an employer enrolled in the Department of Homeland Security’s SAVE Program, with the endorsement of the school’s DSO (Designated School Official for student visa matters) may:

• file an application to extend OPT employment authorization for an additional 17 months (29 months total);

• the OPT Employment Authorization Document (EAD) will be automatically extended up to 180 days while the application is pending;

• the employer will be required to report termination of employment to the DSO or other DHS designated agent;

• the DSO will report the details of the student’s employment, and the maintenance of status through SEVIS (the government’s post-9/11 student tracking system);

The Details

• Degree requirement

To be eligible for the 17 month extension or 29 month OPT, a student’s degree must be in one of the following areas:

• Actuarial Science
• Computer Science (other than data entry/microcomputer applications)
• Engineering
• Engineering Technologies
• Biological and Biomedical Sciences
• Mathematics and Statistics
• Military Technologies
• Physical Sciences
• Science Technologies
• Medical Scientist (MS or PhD)

The Classification of Instructional Programs developed by the U.S. Department of Education National Center for Education Statistics is utilized to determine degree classification.

• Employer requirements – E-Verify

The student must be working for (or have a job offer from) an employer enrolled in the E-Verify program.  Only one percent of employers are currently enrolled in E-Verify. Participating in E-Verify requires an application by the company, and signing a “Memorandum of Understanding.”  This involves an ongoing commitment by the company to utilize the government’s E-Verify system to verify EVERY new employee has a legal right to work in the U.S. – not just foreign students with F-1 visas.

Most employers are not currently enrolled in E-Verify.  There are costs and burdens as well as benefits to this program beyond those related to OPT.  Whether to enroll in E-Verify will be a business decision for each employer and will be driven by many factors.

If a student applies for a 17 month extension or 29 month OPT, the employer must agree to notify the student’s DSO or other agent designated by DHS within 48 hours should the student’s employment end.

• DSO role

A student must also request their DSO to recommend the extension or 29 month OPT.  The DSO will verify the student’s eligibility, certify that the student’s degree is on the STEM Designated Degree Program List, and assure that the student and employer are aware of their responsibilities for maintaining status.

The recommendation by the DSO is made through the online SEVIS database. 

The student is required to report to the DSO every six months to verify continued eligibility.  The employer is required to report any termination in employment. The DSO will enter these reports into SEVIS.

Within 10 days, the student must also report to the DSO any change of name, mailing or residential address, employer name and address, and interruption or loss of employment.  The DSO will update SEVIS with this information.

Type of job

The employment must be in the area of the student's education (i.e., STEM). 

Benefits for Technology Companies

The 29 months OPT will be a huge benefit for some technology, engineering and scientific companies.  No longer will there be such great pressure to obtain an H-1B visa in the student’s first year of OPT.  One can apply possibly three times for an H-1B while the student works on OPT.  Those with Master’s (or other advanced degrees or a Bachelor’s plus 5 years work experience) may even be able to avoid the need for an H-1B visa and may obtain a labor certification and green card before the end of the 29 months of OPT.  For those from India and China for whom the visa numbers are backlogged, this may not be the entire solution, but for others it will be.

The employer’s E-Verify requirement may be a roadblock for some.  But for small companies needing excellent workers, this will, in many cases, not be an impediment. 

In sum, the visa options just expanded for many foreign students in technology fields.

Maintenance of Status on OPT

Students with OPT must now be employed to maintain status.  Students may not have more than 90 days cumulative unemployment during post-completion OPT.  If they have been granted a 17 month extension or 29 month OPT, the cumulative time unemployed may not exceed 120 days.

Open Questions

There has been little guidance or interpretation from the USCIS beyond a press release, and the discussion contained in the rule itself.

Many questions remain open many of which I expect will be clarified in the future.