Visa and I-94

Upon entry, depending on the type of visa obtained, the length of your authorized period of stay is determined when you are inspected and admitted by an immigration officer, and it will reflect on your Form 1-94.

This should not be confused with the date on your visa. Your visa is evidence of permission to enter the U.S and Form I-94 is evidence of your authorized length of stay.

For example, your B-2 visa is valid from January 2, 2023 to January 1, 2025. You entered the U.S January 2, 2023 and your Form I-94 shows July 1, 2023 as your departure date.

In this case, even though the visa document is valid till 2025, your authorized period of stay is only valid for the length of time set for you by U.S Customs and Border Protection (CBP) and you must leave the United States on or before July 1, 2023.


Unlawful Presence and Consequences of Overstaying Your Visa

If you fail to leave on or before that date, your visa is automatically voided once you exceed your stay and you will be unable to apply for a visa in any U.S Consulate outside your home country.

Also, you may begin to accrue unlawful presence and may be banned from re-entry into the U.S from 3 to 10 years depending on how long you have overstayed.


3 Year Ban
If you visit and stay more than 180 days but less than one year, and voluntarily depart before removal proceedings are initiated, you will not be able to re-enter the U.S for 3 years.


10 Year Ban
If you overstayed for one year or more, removal proceedings were initiated against you and you were in fact removed, or departed – you will not be able to re-enter the U.S for 10 years.


Accordingly, as a temporary visitor to the U.S, you must take care to be law abiding and mindful of your authorized period of stay. If for any reason you need to stay longer, it’s imperative that you contact an immigration attorney right away.

The attorney will assist in determining what your options are, including possibly extending your stay. If you apply for extension timely, you are considered to have maintained lawful status even if your I-94 expires while the application is pending.


What this means: Any application to extend must be filed and received by USCIS before your authorized period of stay expires. And if you have overstayed your visit, the attorney can help determine if you may be eligible for a waiver.

Traveling regularly outside of the US with a Green card

The O-1 Employment Non-Immigrant U.S Visa

Non-immigrant visas are issued to applicants from foreign nations seeking temporary admission into the United States for a definite purpose. Unlike an Immigrant Visa which allows a person from another country to live and work permanently in the US, a Non-immigrant visa holder must leave the country when the duration of their visa expires.

O-1 Non-Immigrant Visa and Who May Be Eligible?

The O-1 non-immigrant visa is issued by United States Citizenship and Immigration Service, to individuals with extra ordinary abilities in athletics, arts, education, business, motion picture, television industry or in the sciences. Foreign nationals who demonstrate extra-ordinary ability by national or international acclaim in a level of expertise indicating that the individual is of the small percentage who have risen to the Pinnacle of their field may be eligible for the O-1 Visa.

Professors, scientists, athletes, artists, musicians, movie directors, producers, entrepreneurs who have been recognized for extra-ordinary achievements in their fields may seek to enter the US on O-1 visa, along with their dependents and assistants. The O-1 Visa can be broken down into the following sub-categories:

O-1A

The O-1A visa is issued to foreign nationals with extraordinary ability in;

i) The Sciences

ii) Education

iii) Business

iv)Athletics

 O-1B

This sub-category is for individuals who have demonstrated a record of extra-ordinary achievement or been recognized nationally or internationally in;

i) The Arts

ii) Motion picture

iii) Television Industry

O-2 Assistant to O-1

A person seeking to enter the US, to render relevant assistance to the O-1 beneficiary, may be eligible for O-2 Visa. The assistance to be rendered to the O-1 beneficiary must be an “integral part” of their performance. The skills and experience possessed by the O-2 assistant most be critical with the experience of the O-1 visa holder and must be such as cannot be readily performed by a US worker.

O-3

The O-3 visa is for dependents of O-1 and O-2 visa holders. Spouses and children under the age of twenty-one years, may be eligible for O-3 visa. They will also be subject to the same period of admission and limitations as the O-1 and O-2 Visa holders themselves. O-3 visa holders cannot work in the US but may study full time or part-time.

 Application Process

The petition must be filed not more than one year from the date of proposed employment and at least 45 days before that date and must be accompanied by the required supporting evidence. An O-1 petition with a January 1st, 2024, employment start date must be filed earliest January 1st, 2023, and latest on November 15th, 2023.

In the case of O-2 visa for assistant of the O-1 Visa holder, the petitioning employer must provide sufficient evidence to show that the services to be rendered by the O-2 visa applicant are “integral” to the work to be performed by the O-1 beneficiary in the US. Unlike O-3 dependents who are included in the Form I-129 O-1 visa petition, the O-2 assistant’s petition must be filed on a separate Form I-129 from the one filed for the O-1 beneficiary. In other words, two separate Form I-129 must be filed, one for O-1 and the other for the O-2 assistant.

Specific Requirements:

 Consultation

As part of the O-1 visa application process, the petitioner must provide a written advisory opinion from a peer group or a person with skills or expertise similar to the O-1 beneficiary’s. A petition for an individual with extraordinary achievements in motion picture or television, must include a written advisory opinion from an appropriate labor union and a management organization with expertise in the beneficiary’s area of ability.

Waiver

The consultation requirement may be waived if the employer or agent can show that an appropriate peer group or labor organization does not exist, in which case USCIS may adjudicate based on supporting evidence filed with the petition. Consultation may also be waived for an O-1 beneficiary with extra ordinary ability in the field of Art who is seeking to reenter the US to perform similar services as was performed within a space of two years from the date of a previous consultation. The petitioning employer or agent will be required to submit a waiver request along with the Form I-129, including a copy of the previous consultation.

Contract

There must be an existing written employment contract between the petitioner and the O-1 beneficiary, copy of which must be submitted with the petition. In the absence of a formal written contract, The petitioner may submit a written summary of terms of the oral agreement governing the O-1 employment.

Itinerary

An explanation of the nature of the O-1’s activities and copies of their itineraries, with dates, must be submitted with the Form I- 129. Explanation of activities such as any tours, exhibitions or concert performances of the O-I beneficiary should be included.

 Who May File Application

A company registered in the United States or a United States citizen may file the O-1 petition as US employer, on behalf of the foreign national. Similarly, a U.S agent may file the petition on behalf of the beneficiary. A foreign employer may also file the O-1 petition through a US agent.

Who is an Agent

The US agent maybe the beneficiary’s actual employer or a representative of both the beneficiary and the employer. A person or company authorized by the employer to act as its agent, may also file the petition on behalf of the beneficiary.

Procedure for changes in employment

In the event that an O-1 Immigrant desires to change employers, the new employer must file a fresh Form I-129 with USCIS. If the original petition was filed by an agent, the new employer must file an amended petition, providing evidence to show that they are the new employer.

Material changes in terms and conditions of employment

Additional performances or engagements such as additional tour dates in the terms and conditions of the O-1 immigrant’s employment are allowed and do not affect eligibility. Other than these, the employer or agent must file an amended Form I-129 if there is any material change in the terms and conditions to the employment as stated in the original petition, such as changes in the skills and experience required for the position.

Special rules for athletes

O-1 professional athletes who are traded from one team to another, will continue in the new team with their existing employment authorization for 30 days after change of employment. The new employer is required to file a new Form I-129 within 30 days of the trade. The new Form I-129, once filed, will extend the athlete’s employment authorization at least until USCIS processes the petition. Failure to file the new Form I-129 means the O-1 athlete loses his employment authorization. The athlete also loses their employment authorization if the new employer files Form I-129 showing new employment and the new Form I-129 is denied by USCIS.

Employers liability

An employer who terminates an O-1 immigrant’s employment for reasons other than his voluntary resignation, must pay for the reasonable cost of returning him to the last place of residence, before entering the U.S. An agent who files on behalf of the O-1 immigrant is jointly responsible with the employer for paying the O-1’s return costs.

Period of Stay

O-1 and O-2 visa holders and their dependents can stay in the US for an initial period of up to three years, with possible extensions of up to one year. There are no limits to the number of extensions, as long as the beneficiary continues to meet eligibility requirements. The USCIS approved duration for the petition is the actual authorized period in which the visa holder can work. O-1 and O-2 Visa holders are not allowed to work during the grace period of up to 10 days before and after validity of the visa.

 Conclusion

Individuals with extraordinary ability in the Arts such as Nobel and Pulitzer Prize winners, Oscar and Grammy award winners, individuals who have been recognized nationally internationally in their field of extraordinary ability, may easily demonstrate eligibility. The O-1 business category may also be a good option for entrepreneurs from non-treaty countries who are not eligible for the E Treaty Investor Visa. Although the O-1 petition requires a high volume of evidentiary documentation, unlike the H-IB Visa, it has no restriction on how many people may apply.

H-1B Non-Immigrant Visa

By The H-1B Team

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The initial registration period for 2024 H-1B non-immigrant visa applications will open at noon Eastern Time on March 1 and run through noon Eastern Time on March 17, 2023.

During this period, intending employers and representatives in the United States will be able to begin their H-1B application process by registering each beneficiary electronically for selection using USCIS online H-1B registration system.

And if selected, the employer becomes eligible to file a paper petition on behalf of the foreign worker.  

Employment Date

An H-1B petition can be filed six months in advance of October 1, 2023, which is the earliest date a foreign worker can begin employment in H-1B status.

Once the H-1B registration and application periods end, prospective employers and employees must wait till the next fiscal year to begin the application process; Except applicants for extension of stay in H1B category or change in terms of employment – concurrent H1B.

What is H-1B 

H-1B nonimmigrant visas are the most frequently obtained nonimmigrant work permits, available to foreign nationals who wish to come temporarily into the U.S to perform services in a specialty occupation full-time or part-time.

Specialty Occupation 

A specialty occupation is one that requires; specialized knowledge, at least a bachelor’s degree or higher in the specific area, or the individual possesses equivalent work experience as a minimum requirement for entry into the occupation.  If the occupation requires a license to perform the duties of the job – like an attorney, the alien must have that license prior to approval of the H-1B petition.

In other words, an H-1B visa is available to a foreign national;

(i) With a university degree, or its equivalent; 

(ii) A job offer in the United States that requires at least a bachelor’s degree; and 

(iii) A wage offer equal to or above the prevailing wage rate for that type of job.

Specialty occupations may include engineers, attorneys, accountants, computer scientists, information technology specialists, software engineers, architects, chemical,  mechanical engineers, mathematicians, doctors and educationists; Including workers in social services and the arts.

H-1B CAP

The annual H-1B cap applies only to “new employment”. Which means H-1B renewal and extension with the same employer, are exempt from the cap. Petitions filed by institutions of higher education or certain nonprofit organizations are also not subject to the cap.

There are currently 65,000 visas for holders of Bachelor’s degrees, and an additional 20,000 for beneficiaries who have earned a Master’s degree, or higher, from a U.S. university – a total of 85,000 H-1B non-immigrant visas.

Change of Status

An intending US employer may petition the USCIS on behalf of a foreigner who is already in the US in a different visa category such as H-4, L-2, J-2, F1, OPT or CPT; To temporarily employ the foreigner in a role that requires H-1B qualifications. If the petition is approved, the individual’s status will change to H-1B. 

Duration.

The maximum period of stay in H-1B is 6 years, with status granted for an initial period of up to three years. And may be extended for up to three more years. The 6-year limitation does not apply in the case of;

i) Individuals who reside for less than six months in the U.S. each year;

ii) Seasonal or intermittent workers;

iii) A worker who has filed an application for Lawful Permanent Residence (Form I-140) at least 365 days before the 6th year of their H-1B.

Condition for Renewal

A person who is subject to the 6-year limitation must leave the United States for at least one year when their H-1B expires. After which they may renew for another six year period.

However, on February 9, 2023, The State Department announced in an interview with Bloomberg Law, that it will launch a pilot program later this year offering visa renewal options in the U.S for H-1B specialty occupation workers and other temporary visa holders who are currently required to travel abroad.

H-1B Dependents

Spouses and children of H1-B work permit holders are eligible for H-4 status. Spouses of certain individuals in H-1B are now eligible to apply for, and may be granted a temporary permit to work in the United States. 

Aging Out

Children of H1-B work permit holders who are in H-4 status, age out of their parent’s H-1B at 18. At which point they are no longer eligible as dependents of H-1B.

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Are You a Green Card Holder? What to do after a Long Absence from the United States.

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As a Legal Permanent Resident, a Green Card is evidence of your immigration status in the United States, and you are required to actually reside in the US. 

Long Absence

But for any number of reasons, you might find yourself spending long periods of time outside the States. If absent for one year or more, you may be deemed to have abandoned your Legal Permanent Residence status – particularly if it’s determined that you have taken up residence outside the U.S. This determination is usually based on intent – whether by your actions, you indicate intent to be resident in any other country.

Re-entry Permit

If you plan on staying outside the U.S for over a year, you want to apply for a Re-entry permit before you leave. This permit allows a Green card holder to return to the US after an absence of up to two years. But it does not preserve your status for Naturalization. 

The permit is valid for 2 years and upon expiration, you are required to re-apply for a new one – while physically present in the United States.

Possible Consequence of Long Stays Outside the U.S

Long absences from the U.S can prevent you from becoming a citizen because you may not meet the requirements for Naturalization. But if you apply to preserve residence for Naturalization purposes, your status in the U.S is maintained. This will allow you to apply for citizenship later.