TEMPORARY 

MIGRATION 

TO THE 

UNITED STATES 

NONIMMIGRANT ADMISSIONS UNDER 

U.S. IMMIGRATION LAW 

 
 Nonimmigrants – v. 06.a 

 

Temporary Migration to the United States: 

Nonimmigrant Admissions Under U.S. Immigration Law 

U.S. Immigration Report Series, Volume 2 

About this Edition 

This document discusses nonimmigrants and the laws and regulations concerning 

their admission to the United States. The purpose of this report is to describe the 

various nonimmigrant categories and discuss the policy concerns surrounding 

these categories. Topics covered include: adjustment of status, temporary 

workers, work authorization, and visa overstays. 

The United States welcomes visitors to our country for a variety of purposes, such 

as tourism, education, cultural exchange, and temporary work. Admittance to the 

United States as a nonimmigrant is intended to be for temporary visits only. 

However, some nonimmigrants are permitted to change to a different 

nonimmigrant status or, in some cases, to permanent resident status. This report 

provides an overview of the reasons for visiting the United States on a temporary 

basis and the nexus between temporary visitor and permanent resident.
TEMPORARY MIGRATION TO THE 

UNITED STATES: 

NONIMMIGRANT ADMISSIONS UNDER U.S.IMMIGRATION LAW

Research and Evaluation Division

U.S. Citizenship and Immigration Services

Office of Policy and Strategy

 January 2006 
ACKNOWLEDGEMENTS

This report was prepared by staff in the Research and Evaluation Division of the 

Office of Policy and Strategy, U.S. Citizenship and Immigration Services, under the 

direction of David R. Howell, Deputy Chief, and Lisa S. Roney, Director of 

Evaluation and Research. The report was written by Rebecca S. Kraus. The 

following staff made significant contributions in the research for and review of this 

report: Lisa S. Roney and Linda W. Gordon. Sally Goya, Bahar Sadjadi, and Barbara 

Previti of the Office of Policy and Strategy provided invaluable assistance in the 

preparation of this report. 

The Office of Policy and Strategy also would like to thank the outside reviewers of 

this report: Elizabeth M. Grieco, Office of Immigration Statistics, DHS; and Donna 

Crump, Office of Program and Regulations Development, USCIS. 

Image Credits: 

Images of nonimmigrant visas and border crossing card, pp. 33-35: U.S. Department of Justice, Immigration and 

Naturalization Service, A Guide To Selected U.S. Travel/Identity Documents For Law Enforcement Officers, M-396 (Rev, 

8/1/98), accessed at <http://www.fels.org/insforms/insdocs.htm.> Image of Form I-94, p. 37: U.S. Customs and 

Border Protection, <http://www.cbp.gov/xp/cgov/travel/leavingarrivinginUS/ 

nonimmigrant_arri_dep/i_94_sample.xml.>
i

TEMPORARY MIGRATION TO THE UNITED STATES: 

NONIMMIGRANT ADMISSIONS UNDER U.S. IMMIGRATION LAW

 

Contents Page

INTRODUCTION........................................................................................v 

 

I. OVERVIEW.......................................................................................... 1 

 Introduction.................................................................................... 1 

 Overview of the Nonimmigrant Categories............................................... 2 

 Temporary Visitors: B-1, B-2, BE, WB, WT, GB, and GT....................... 3 

 Temporary Employees: H, J, K, L, O, P, Q, and R............................... 4 

 Treaty Traders, Investors, and Professionals: E, TN, TD, and H-1B1........ 7 

 Students: F and M......................................................................9 

 Foreign Government, Organization, or Media Representatives: 

 A, G, I, and NATO............................................................... 9 

 Aliens in Transit and Crewmembers: C and D.................................. 11 

 Certain Family Members of U.S. Citizens and Lawful Permanent 

 Residents: K, N, and V........................................................... 12 

 Witnesses and Victims: S, T, and U................................................ 14 

II. HOW DID NONIMMIGRANT POLICY EVOLVE?..............................................17

The Evolution of Nonimmigrants in Immigration Law....................................17

 Early U.S. Immigration Laws: Before 1952........................................17 

 Consolidation of Immigration Laws: 1952........................................ 20

 The Expansion of International Relationships: 1960s and 1970s............... 21 

Immigration Reform and Control: 1986.......................................... 23

 Addressing Legal Immigration and Temporary Entrants: 1990s...............24 

 Efforts to Prevent Crime and Protect Victims: 1994 to 2000................. 28 

 Family Equity: 2000.................................................................. 29 

Creating Subcategories of Nonimmigrants....................................... 30

Conclusion..................................................................................... 31 

III. HOW DO U.S. NONIMMIGRANT POLICIES COMPARE TO OTHER COUNTRIES.....33

 Australia........................................................................................ 33 

 Canada..........................................................................................35 

 Temporary Residents................................................................ 35 

 Temporary Workers................................................................ 35 

 Students................................................................................ 35 
ii

Contents (continued) Page

Japan............................................................................................. 36 

 The Philippines................................................................................. 37 

 The European Union.......................................................................... 37 

 Conclusion..................................................................................... 39 

IV. WHO ARE NONIMMIGRANTS?................................................................ 41 

Introduction..................................................................................... 41 

 Nationality of Nonimmigrants by Category of Admission.............................. 43 

 Border Crossers.............................................................................. 44 

 Length of Stay.................................................................................. 45

V. SPECIAL FOCUS: PERMISSION TO WORK................................................... 47 

Introduction..................................................................................... 47 

 Immigration Law and Foreign Workers..................................................... 47

 Alien Contract Labor............................................................... 47 

 War Time Labor Shortages.......................................................... 48 

 The Temporary Worker Nonimmigrant Category.............................. 49 

 Nursing Shortages in the 1980s.................................................... 49 

 The Immigration Act of 1990...................................................... 50 

 American Competitiveness and Workforce Improvement..................... 51 

 Visa Reform in 2005.................................................................. 52 

Working in the United States............................................................... 53 

Nonimmigrants Authorized to Work Incident to Status....................... 53 

 Nonimmigrants Authorized to Work for a Specific Employer 

 Incident to Status................................................................. 53 

Nonimmigrants Requiring Permission to Work.................................. 54 

Nonimmigrants Not Authorized to Work....................................... 55 

Temporary Workers and Intracompany Transferees.................................... 55 

 H Nonimmigrants..................................................................... 55 

 L Nonimmigrants...................................................................... 58 

The Foreign Labor Certification Process................................................... 58 

VI. SPECIAL FOCUS: PERMISSION TO STUDY.................................................. 61 

Introduction..................................................................................... 61 

 Academic Students........................................................................... 61 

 Vocational Students........................................................................... 62 

 Part-time Students............................................................................ 62 

 Exchange Students............................................................................. 63 

 High School Students......................................................................... 63 

 Student and Exchange Visitor Information System (SEVIS).............................. 63 
iii

Contents (continued) Page

VII. HOW DOES ONE APPLY FOR NONIMMIGRANT STATUS?............................. 65

 

Overview....................................................................................... 65 

 Acquiring a Nonimmigrant Visa............................................................. 66 

 Presumption of Status................................................................ 66 

 Admissibility............................................................................ 67 

Entry to the United States................................................................... 68 

 Canadian Citizens..................................................................... 68 

 Mexican Citizens..................................................................... 70 

 Visa Waiver Program................................................................ 70 

 Denial of Admission.................................................................. 72 

Authorized Stay............................................................................... 72 

 Extension of Stay.............................................................................. 73 

 Changing from One Nonimmigrant Status to Another................................... 73 

VIII. POLICY ISSUES RELATED TO THE NONIMMIGRANT SYSTEM......................... 75 

Dual Intent..................................................................................... 75

Adjustment of Status......................................................................... 76 

 Visa Overstays.................................................................................. 78 

 Tracking Arrivals and Departures of Visitors to the United States.................... 78 

 Legislative Requirements............................................................. 78 

 Operational Procedures.............................................................. 80 

 Temporary Workers......................................................................... 80 

VI. CONCLUSION.................................................................................... 83

 

APPENDICES

 Appendix A. Nonimmigrant Visa Categories.............................................. 85 

 Appendix B. Summary of Selected Nonimmigrant Benefits............................ 89 

ENDNOTES............................................................................................. 95 

TABLES, FIGURES, AND EXHIBITS

 Table 1.1 Nonimmigrant Categories......................................................... 2 

Table 1.2 Nonimmigrant Categories, by Purpose of Visit............................... 3 

Table 1.3 Nonimmigrant Categories for NATO Employees............................ 11 
iv

Contents (continued) Page

Table 2.1 Changes in Nonimmigrant Categories, 1990.................................. 25 

Table 3.1 Australian Student Visas.......................................................... 31 

Table 3.2 Selected Japanese Visa Categories.............................................. 36 

Table 3.3 European Union Members and Year of Entry................................ 38 

Table 4.1 Nonimmigrant Entries, 1985-2004............................................. 42 

Table 4.2 Nonimmigrant Entries by Region of Residence and Selected Class 

 of Admission, 2002............................................................ 43 

Table 4.3 Nonimmigrant Entries by Country of Citizenship and Selected Class 

 of Admission, 2002: Temporary Workers and Exchange Visitors..... 44 

Table 5.1 Work Authorization, by Nonimmigrant Category........................... 53 

Table 5.2 Filing Requirements for Foreign Labor Certification........................60 

Table 7.1 Visa Waiver Countries, 2005.................................................... 72 

Table 7.2 Nonimmigrant Extension of Stay............................................... 73 

Table 8.1 Adjustment of Status by Selected Status at Entry, 2002.................... 77 

Figure 2.1 Timeline of the Evolution of Nonimmigrant Categories................... 18 

Exhibit 2.1 Form I-94, front and back...................................................... 69 
v

INTRODUCTION

The facilitation and promotion of international travel and the entry of people from all over the 

world to the United States for cultural, social, and economic reasons are integral parts of U.S. 

domestic and foreign policies. Each year, approximately 30 million people come to the United 

States for temporary stays for a variety of reasons, such as to conduct business, vacation, or 

study. These visitors, called nonimmigrants, make important contributions to the United 

States’ economy and other social institutions. 

Over the years, several nonimmigrant visa categories have been created to better 

accommodate the reasons people come to the United States. By far, the largest nonimmigrant 

category is “temporary visitors.” Temporary visitors for business or pleasure account for 

nearly 90 percent of all nonimmigrants entering the United States every year. In 2004, more 

than 9 million temporary visitors for pleasure and approximately 2 million temporary visitors 

for business arrived at U.S. ports of entry with nonimmigrant visas. In addition, 13.6 million 

tourists and 2.2 million business visitors entered under the Visa Waiver Program, which waives 

the nonimmigrant visa requirement for nationals of 27 countries. In addition, another 148 

million Mexican and Canadian citizens visited the United States without nonimmigrant visas. 

Other categories of nonimmigrants include foreign government officials, representatives of 

international organizations, foreign athletes and artists, students, cultural exchange visitors, 

religious workers, and foreign media representatives. Treaty traders, treaty investors, and 

professional workers admitted under the North American Free Trade Agreement and other 

trade agreements are also considered nonimmigrants. Nonimmigrant categories also include 

temporary workers and trainees and workers performing services for which workers are 

unavailable in the United States. 

Some nonimmigrant categories facilitate the entry of noncitizen family members. This includes 

family members of U.S. citizens and legal permanent residents to minimize family separations 

while their applications for permanent residence are processed. It also includes the admission 

of the spouses and children of the principal nonimmigrant for many nonimmigrant categories. 

This report examines many of the procedural requirements for nonimmigrants, including how 

to obtain nonimmigrant status, what restrictions and benefits apply to the various nonimmigrant 

categories, and the authorized purposes for coming to the United States as a nonimmigrant. 

The report also reviews the legal and historical development of the complex nonimmigrant 

classification system. In addition, it discusses specific policy issues, including guest workers, visa 

overstayers, and visa waiver policies. 
vi
1

SECTION I 

OVERVIEW

Introduction 

A foreign national who requests temporary entry to the United States for a specific purpose is 

considered to be a “nonimmigrant.” The law distinguishes among nonimmigrant aliens who may 

have immigrant intent (e.g., those seeking to remain in the United States permanently), those 

who may only have nonimmigrant intent (i.e., those who are not seeking permanent status), and 

those who may have dual intent (e.g., those who may seek admission for a temporary purpose 

while independently pursuing a related or unrelated purpose to remain in the United States 

permanently).1

 

There are a variety of reasons an individual would wish to come to United States temporarily. 

In fact, there are more than 75 classifications of nonimmigrant visas – each based on the reason 

for entering the United States and having different terms of admission. Most nonimmigrants are 

temporary visitors coming to the United States as tourists, to visit friends or relatives, or on 

business trips. Some foreign nationals work as crew on international airlines or shipping vessels 

and need to be admitted temporarily into the United States, but do not intend to remain for 

any significant period of time. An example of this type of nonimmigrant is a flight attendant 

who works for an international airline that arrives at a U.S. airport with only a short layover 

before picking up new passengers and departing. 

Additional nonimmigrant categories permit the entry of foreign students, certain temporary 

workers whose services are needed by U.S. employers, persons working for foreign companies 

who are temporarily transferred to affiliate offices in the United States, fiancé(e)s of U.S. 

citizens, and participants in cultural exchange programs. The nonimmigrant categories also 

include persons entering on a nonpermanent basis to engage in trading and investing under 

international treaties with the United States, representatives of foreign media, religious workers, 

artists, entertainers, and athletes. Each nonimmigrant category carries specific requirements 

and privileges related to permission to work in the United States, permission to bring family 

members, and length of stay. 

Throughout the history of our Nation, immigration law has evolved and incorporated 

nonimmigrant categories as needed. With the Immigration and Nationality Act of 1952, which 

codified all existing immigration statutes into one body of law, the nonimmigrant categories 

were categorized alphabetically. Subsequent letters were assigned when the need for a new 

nonimmigrant category arose. As subcategories of nonimmigrants were needed, the original 

categories were expanded. Some categories, such as category H (temporary workers), have 

several subcategories to identify more precisely the reason for the nonimmigrant worker’s 
2

admission. Subcategories also were created to accommodate the family members or personal 

employees of the principal alien.*

 

Overview of the Nonimmigrant Categories2

The nonimmigrant classifications are based on the reasons for entering the United States and 

many categories have different conditions of admission. For instance, some nonimmigrants are 

permitted to work, while others are not. Some periods of admission may be for the entire 

time that a nonimmigrant is in a particular status – such as a foreign government official or 

student – while others may be brief. Moreover, a few nonimmigrant categories are subject to 

annual numerical limits. This section presents an overview of the various nonimmigrant 

categories. The main categories of nonimmigrants are shown in alphabetical order in Table 1.1 

and Appendix A. Detailed information concerning terms of admission and work authorization 

can be found in Appendix B. 

Table 1.1 Nonimmigrant Categories 

A 

B

Foreign Government Officials 

Temporary Visitors (business/pleasure) 

L 

M 

Intracompany Transferees 

Vocational Students 

C Aliens in Transit N Parent/Child of Special Immigrants 

D Crewmembers O Workers with Extraordinary Abilities 

E Treaty Traders and Treaty Investors P Athletes and Entertainers 

F Academic Students Q International Cultural Exchange Visitors 

G Foreign Government Officials to 

International Organizations 

R 

S 

Religious Workers 

Witness or Informant 

H Temporary Workers 

I Foreign Media Representatives 

T Victims of a Severe Form of Trafficking 

In Persons 

J Exchange Visitors Victims of Certain Crimes 

K Fiancé(e)s and Spouses of U.S. 

Citizens 

U 

V Spouses of LPRs with applications for LPR 

status pending for at least 3 years. 

Additional Categories:

BE Bering Straits agreement entrants 

GB, GT Temporary visitor for business, pleasure - Guam Visa Waiver Program 

WB, WT Temporary visitor for business, pleasure - Visa Waiver Program 

NATO North Atlantic Treaty Organization 

TN, TD North American Free Trade Agreement 

 *

 For the purposes of this report, the “principal alien” is the primary person applying for nonimmigrant status for entry 

into the United States for a specified purpose. For some nonimmigrant categories, the principal alien’s spouse and children 

may derive nonimmigrant status from the principal alien. In other words, some nonimmigrant categories permit the 

principal alien’s family members to accompany him or her to the United States. 
3

The nonimmigrant classifications fall within eight overarching themes, based on the reason for 

the individual’s entry to the United States: (1) temporary visitors; (2) temporary employees; 

(3) treaty traders, investors, and professionals; (4) students; (5) officials of foreign governments, 

organizations, and the media; (6) aliens in transit and crewmembers; (7) family members of U.S. 

citizens and legal permanent residents; and (8) witnesses, informants, and victims of certain 

crimes. The nonimmigrant classifications related to each of the eight themes are described 

briefly below and are shown in Table 1.2. 

Table 1.2. Nonimmigrant Categories, by Purpose of Visit 

Purpose of Visit Categories Included 

Temporary Visitors B-1 

B-2 

Temporary Employees H-1B, H-1C, H-2A, H-2B 

H-3, H-4 

J-1, J-2 

L-1, L-2 

O-1, O-2, O-3 

P-1, P-2, P-3, P-4 

Q-1 

Q-2, Q-3 

R-1, R-2 

Treaty Traders, Investors, 

and Professionals 

E-1, E-2, E-3 

TN, TD 

H-1B1 

Students F-1, F-2, F-3 

M-1, M-2, M-3 

Foreign Government, 

Organization, or Media 

Representatives 

A-1, A-2, A-3 

G-1, G-2, G-3, G-4,.G-5 

I 

NATO 1-7 

Aliens in Transit and 

Crewmembers 

C-2, C-3 

D-1, D-2 

Family Members of U.S. Citizens 

and Legal Permanent Residents 

K-1, K-2, K-3, K-4 

V-1, V-2, V-3 

Witnesses, Informants, and 

Victims 

S-5, S-6 

T-1, T-2, T-3, T-4 

U-1, U-2, U-3, U-4 

Temporary Visitors: B-1, B-2, BE, WB, WT, GB, and GT 

Temporary visitors account for the largest share of nonimmigrants entering the United States 

each year, with temporary visitors for pleasure representing the majority of entrants. A visitor 

visa is required of persons desiring to enter the United States temporarily for business (B-1) or 

for pleasure (B-2), unless they are nationals of the 27 countries participating in the Visa Waiver 

Program (discussed in Section VII). B-1 and B-2 visa holders may be authorized an initial length 

of stay of up to 1 year, with extensions of stay granted in increments of 6 months. 
4

Foreign nationals usually need a B-1 visa to come to the United States to consult with business 

associates, negotiate a contract, buy goods, participate in conferences, and engage in similar 

activities. They must demonstrate that the purpose of their trip is for business, that they plan 

to remain for a specific, limited period of time, and that they have a residence outside of the 

United States as well as other foreign ties that will ensure their return home at the end of their 

visit. 

Persons wishing to come to the United States for pleasure travel and tourism, such as to visit 

family or friends, or for medical treatment must obtain a B-2 visa. These temporary visitors 

must demonstrate that the purpose of their trip is for pleasure or medical treatment; they plan 

to remain for a specific, limited period; they have sufficient funds to cover expenses in the 

United States; and they have compelling social and economic ties abroad, including a residence 

outside the United States. 

Not all temporary visitors for business or pleasure are required to obtain a B-1 or B-2 visa. 

Nonimmigrant categories WB and WT identify persons entering under the Visa Waiver 

Program (VWP) for business or pleasure, respectively. Under the VWP, nationals of 27 

countries are not required to obtain a visa if certain conditions are met (see Section VII for 

information on the VWP). The BE category is for temporary entrants under the Bering Straits 

agreement. Visa waiver entrants and persons entering with BE visas are permitted a maximum 

stay of 90 days.3

Categories GB and GT signify temporary entrants for business or pleasure to Guam under the 

Guam Visa Waiver Program (GVWP). The GVWP, created by the Omnibus Territories Act of 

1986, 4 permits temporary visitors for business or pleasure from certain countries to enter 

Guam for stays of up to 15 days without obtaining a nonimmigrant visa.5 The law specified that 

eligible countries were those within geographical proximity to Guam, or that have a substantial 

volume of nonimmigrant admissions to Guam. Currently, nationals of the following countries 

may enter Guam under the GVWP: Australia, Brunei, Indonesia, Japan, Malaysia, Nauru, New 

Zealand, Papua New Guinea, Republic of Korea, Singapore, Solomon Islands, Taiwan (only if on 

a direct flight to Guam from Taiwan), the United Kingdom (including British National Overseas 

passport holders), Vanuatu, and Western Samoa.6

Canadian and Mexican citizens also are not necessarily required to obtain a nonimmigrant visa 

for business or pleasure trips. However, generally, citizens of Mexico wishing to visit the 

United States must present a passport and visa or a Border Crossing Card (BCC).7

 Mexican 

visitors possessing BCCs are admitted for up to 72 hours for travel within 25 miles of the U.S.-

Mexico border.8 To enter the United States, a Canadian citizen needs only to establish identity 

and citizenship. (See Section VII for more information on border crossers.) 

Temporary Employees: H, J, K, L, O, P, Q, and R 

There are several nonimmigrant categories for persons wishing to come to the United States to 

work on a temporary basis. These categories differ not only by the type of work permitted, 

but also by duration of stay and whether they may bring family members. These categories also 

differ significantly from the B-1 nonimmigrant category, temporary visitors for business, which is 
5

for visitors who are admitted temporarily to conduct business for a non-U.S. establishment, and 

who maintain their homes abroad. (See Section V for more information on temporary 

employees.) 

H: Temporary Workers

The H nonimmigrant category covers a wide spectrum of workers entering the United States 

on a temporary basis in order to fill the needs of U.S. employers. The category applies to 

persons in specialty occupations, fashion models of distinguished merit and ability, and persons 

performing services of an exceptional nature for cooperative research and development 

projects administered by the Department of Defense (H-1B);9 registered nurses hired under 

the authority of the Nursing Relief for Disadvantaged Areas Act of 1999 (H-1C);10 temporary 

or seasonal agricultural workers (H-2A);11 temporary workers coming to the United States to 

perform nonagricultural work of a temporary nature (H-2B);12 persons coming temporarily to 

the United States for training provided primarily at academic or vocational institutions (H-3);13

and their spouses and children (H-4).14 

The H-1B1 category, created in 2003 for professionals entering the United States pursuant to 

free trade agreements between the United States and Chile and Singapore, is discussed below 

under the heading of “Treaty Traders, Investors, and Professionals.” 

J and Q: Exchange Visitors

The J-1 visa is for persons seeking entry into the United States to participate in an approved 

exchange visitor program for the purpose of teaching, lecturing, studying, observing, conducting 

research, consulting, demonstrating special skills, or receiving training.15 The exchange visitor 

program is designed to promote the interchange of persons, knowledge, and skills in the fields 

of education, arts, and sciences between the United States and other countries. The Mutual 

Educational and Cultural Exchange Act of 1961,16 also referred to as the Fulbright-Hays Act, 

promotes mutual understanding between the United States and other countries by means of 

educational and cultural exchange. The Act specifically created the J visa category to facilitate 

the entry of exchange program participants into the United States.17 

The U.S. Department of State administers the Mutual Educational and Cultural Exchange Act 

and designates sponsors to administer individual exchange visitor programs. Sponsors are U.S. 

organizations such as government agencies, academic institutions, educational and cultural 

organizations, and corporations. Persons participating in these programs include:18

• Students at all academic levels 

• Trainees obtaining on-the-job training with firms, institutions, and agencies 

• Teachers at primary, secondary, and specialized schools 

• Professors coming to teach or do research at institutions of higher learning 

• Research scholars 

• Professional trainees in the medical and allied fields 
6

• International visitors coming for the purpose of travel, observation, consultation, 

research, training, sharing, or demonstrating specialized skills, or participating in 

organized people-to-people programs 

The principal program participant may apply for a J-1 nonimmigrant visa. Accompanying 

spouses and children may apply for J-2 visas. Some exchange programs provide for on-the-job 

training, teaching, research, or other activities that involve paid employment. However, 

participants in programs that do not involve work, such as high school foreign exchange 

students, may not accept paid employment.19 

The Q-1 nonimmigrant category is designated for individuals participating in an international 

cultural exchange program, the purpose of which is to provide practical training, employment, 

and the sharing of the history, culture, and traditions of the individuals’ home countries.20 The 

Q-1 exchange visitor must be at least 18 years old and be able to communicate effectively 

about the cultural attributes of his or her country. They must be paid by their employing U.S. 

sponsor at the same rate paid to local domestic workers similarly employed.21

Q-2 applies to persons in the Irish Peace Process Cultural and Training Program, the purpose 

of which is to provide “practical training, employment, and the experience of coexistence and 

conflict resolution in a diverse society.” 22 Participants come from disadvantaged areas of 

Northern Ireland and the six border counties of the Republic of Ireland. The program provides 

employment and vocational training opportunities in selected cities in the United States for up 

to 24 months. The goal is to help the participants develop and enhance personal and 

professional skills which can then be applied in their home countries. This is a temporary 

program, with the final participants expected to depart the United States in 2008. Spouses and 

children of program participants are classified as Q-3 nonimmigrants.23 

L: Intracompany Transferees

Intracompany transferees are individuals who have been employed continuously for 1 year by a 

non-U.S. firm or corporation who are temporarily transferred to an office, branch, or 

subsidiary of that company in the United States. Intracompany transferees must perform work 

in a managerial or executive capacity, or in a position involving specialized knowledge. The L-2 

nonimmigrant category is for the spouse and children of the L-1 nonimmigrant.24

O: Individuals with Extraordinary Ability

O-1 applies to persons who have extraordinary ability in the sciences, arts, education, business, 

or athletics, or extraordinary achievements in the motion picture and television field, who have 

received “sustained national or international acclaim.” An individual’s authorized stay is only for 

the specific event for which the visa is requested. Individuals accompanying and assisting the 

principal alien, as well as the alien spouse or child of the principal alien, may also be granted 

entry with O-2 and O-3 visas, respectively.25
7

P: Athletes, Artists, and Entertainers

P-1 applies to individual or team athletes, or members of an entertainment group that are 

internationally recognized, such as an athlete coming temporarily to the United States to 

perform at a specific athletic competition at an internationally recognized level of 

performance.26 Internationally recognized is defined as “[h]aving a high level of achievement in a 

field evidenced by a degree of skill and recognition substantially above that ordinarily 

encountered, to the extent that such achievement is renowned, leading, or well-known in more 

than one country.”27

Individual athletes are permitted an initial stay of up to 5 years. Extensions are permitted in 

increments of up to 5 years, with the total stay limited to 10 years. For athletic groups and 

entertainment groups, the initial stay is 1 year, with extensions possible in increments of 1 year 

in order to continue or complete the same event or activity for which they were admitted.28 

P-2 applies to artists or entertainers who will perform in the United States under a reciprocal 

exchange program. They are permitted an initial stay of up to 1 year, with extensions of up to 

1 additional year. P-3 applies to artists or entertainers who perform under a program that is 

culturally unique. Culturally unique is defined as “a style of artistic expression, methodology, or 

medium which is unique to a particular country, nation, society, class, ethnicity, religion, tribe, 

or other group of persons.” These nonimmigrants are permitted an initial stay of up to 1 year, 

with extensions of up to 1 year. 29 Persons providing essential support for P-1, P-2, and P-3 

nonimmigrants are classified in the same category as the principal nonimmigrant for whom they 

work. Spouses and children of P-1, P-2, and P-3 principal aliens are classified as P-4 

nonimmigrants.30

R: Religious Workers

The R nonimmigrant category applies to religious workers. Religious workers include ministers 

who are authorized by a recognized denomination to conduct religious worship and perform 

other duties usually performed by members of the clergy. To qualify for this category, an 

individual must be a member of a religious denomination that has a religious organization in the 

United States, and must have been a member of that denomination for the 2 years immediately 

preceding his or her application for admission to the United States.31 

Religious workers are permitted an initial stay of up to 5 years for the following purposes: to 

work as a minister of the religious denomination, to work for the organization in a professional 

capacity, or to work for the denomination in a religious vocation or occupation. 32 This 

category does not include lay preachers. 

Treaty Traders, Investors, and Professionals: E, TN, TD, and H-1B1 

 

E-1, E-2, and E-3

Currently, nationals of countries with which the United States has a treaty concerning 

commerce and navigation who are coming to the United States to carry out substantial trade, 

or to direct operations of an enterprise in which the national has invested, are permitted to 
8

enter the United States for a stay of up to 2 years as nonimmigrant treaty traders or investors. 

These individuals are classified as E-1 and E-2 nonimmigrants, respectively.33 For treaty traders, 

the trade must be “substantial” in size or volume and must be principally between the United 

States and the treaty country. The applicant must be employed in a supervisory or executive 

capacity, or possess highly specialized skills. For treaty investors, the investment also must be 

substantial and must be sufficient to ensure the successful operation of the enterprise and to 

have a significant economic impact in the United States. A speculative or idle investment does 

not qualify; the investment must be in a real, operating enterprise. If the applicant is not the 

principal investor, he or she must be employed in a supervisory, executive, or highly specialized 

skill capacity.34 The spouse and minor children accompanying or following to join an E-1 or E-2 

nonimmigrant may obtain derivative status.35

In 2005, the E-3 nonimmigrant visa category was added by the REAL ID Act.36 This category is 

reserved for Australian nationals working in specialty occupations. There is a limit of 10,500 

visas, and the intending employer must file a labor attestation with the Department of Labor.37

TN and TD

Certain professionals from Canada or Mexico may enter the United States for temporary 

employment under the provisions of the North American Free Trade Agreement (NAFTA).38 

Signed on December 17, 1992 by the Presidents of the United States and Mexico and the Prime 

Minister of Canada, NAFTA became effective on January 1, 1994. 39 Entrants under the 

agreement are admitted under the TN classification. Spouses and unmarried minor children 

accompanying or following to join the principal nonimmigrant are admitted as TD 

nonimmigrants; however, they are not authorized to work in the United States.40 

Chapter 16 of NAFTA, “Temporary Entry for Business Persons,” was designed to facilitate the 

movement of businesspersons among the United States, Canada, and Mexico for investment, 

trade, and professional commerce services. NAFTA professionals may enter as temporary 

visitors for business (B-1), treaty traders (E-1), treaty investors (E-2), intracompany transferees 

(L-1), and NAFTA professionals (TN).41 An applicant seeking admission under NAFTA must 

demonstrate the he or she will be conducting business at a professional level in one of the 63 

professions identified in the law, and that the job has been prearranged. These professions 

include: accountant, architect, economist, engineer, interior designer, lawyer, librarian, 

vocational counselor, dentist, pharmacist, nutritionist, veterinarian, meteorologist, zoologist, 

horticulturalist, and college or university teacher.42 (The complete list of professions can be 

found at 8 CFR 214.6(c)). 

A visa is not required for Canadian and Mexican workers entering under the terms of 

NAFTA.43 Upon entry to the United States, they are issued an I-94, Arrival/Departure Record, 

stamped “multiple entry” and they are not charged a fee for entering the United States.44

 H-1BI

The United States signed free trade agreements with Chile and Singapore in 2003. 45 These 

agreements resulted in the creation of the H-1B1 nonimmigrant category for the entry of 
9

persons from Chile and Singapore in specialty occupations requiring “(A) theoretical and 

practical application of a body of specialized knowledge; and (B) attainment of a bachelor’s or 

higher degree in the specific specialty (or its equivalent)... .”46 There is an annual limit of 1,400 

visas for Chilean workers and 5,400 visas for Singaporean workers. These visas count against 

the existing annual numerical limit (currently 65,000) for H-1B nonimmigrants.47 

Students: F and M 

The United States has long recognized the importance of permitting nationals of foreign 

countries to enter the United States for the purpose of obtaining an education. This 

nonimmigrant category has evolved over the years to include six subcategories. The primary 

distinction is between academic students (F) and vocational students (M). Each of these is 

further divided to distinguish among the principal alien attending an educational institution on a 

full-time basis (F-1 or M-1) and his or her spouse and minor children (F-2 and M-2), or a 

national of Canada or Mexico who lives in his or her country of nationality and crosses the 

border to attend an educational institution on a full-time or part-time basis (F-3 or M-3).48 (See 

Section VI for more information on permission to study in the United States.) 

Foreign Government, Organization, or Media Representatives: A, G, I, and NATO 

Many individuals enter the United States in their official capacities as diplomats, government 

officials, and other persons working for foreign-based or international organizations. In some 

cases, such individuals may be permanently assigned to the United States, in others, they may 

merely be passing through on their way to another destination, such as the United Nations 

headquarters. 

Foreign Government Officials 

Foreign government officials traveling to the United States in their official capacity are 

designated as nonimmigrants. Nonimmigrant category A-1 applies to ambassadors, public 

ministers, or career diplomatic or consular officers who have been accredited by a foreign 

government recognized by the United States and their immediate families. Category A-2 applies 

to other officials and employees who have been accredited by a foreign government recognized 

by the United States and the members of their immediate families. Category A-3 applies to 

attendants, servants, personal employees, and members of their immediate families, of the 

officials and employees who have A-1 or A-2 nonimmigrant status.49 

 Officers and Employees of International Organizations

Other foreign officials reside and work in the United States during their appointments to 

foreign governments or international organizations and are assigned to the G nonimmigrant 

category. “Designated principal resident representative[s]” of foreign governments that are 

recognized by the United States, accredited resident members of the staff of such 

representatives, and members of their immediate families, are designated as G-1 

nonimmigrants. The foreign government representative must be a member of an international 
10

organization entitled to enjoy privileges, exemptions, and immunities as an international 

organization under the International Organizations Immunities Act of 1945.50

Other accredited representatives of such governments to international organizations, such as 

the United Nations, and their immediate families are accorded G-2 nonimmigrant status. 

Individuals who represent foreign governments that are not recognized by the United States or 

that are not members of an international organization and their immediate family members are 

designated as G-3 nonimmigrants.51

Other officers or employees of international organizations of which foreign governments are 

members, and the members of their immediate families, are classified as G-4 nonimmigrants. 

Finally, the attendants, servants, and personal employees of any representative, officer, or 

employee, and the members of the immediate families of such attendants, servants, and 

personal employees are G-5 nonimmigrants.52 

Foreign Media Representatives 

An individual who is a bona fide representative of foreign press, radio, film, or other 

information media, who seeks to enter the United States solely to engage in his or her vocation, 

as well as his or her spouse and minor children, are accorded I nonimmigrant status.53 Prior to 

the INA of 1952, these nonimmigrants were classified as temporary visitors for business. This 

category was added by the 1952 Act to facilitate the exchange of information among nations.54 

This status is only for representatives of foreign media who are traveling to the United States 

to work in their profession and who have a home office in a foreign country. Reciprocity to 

U.S. media in foreign countries is taken into consideration when the visa application is reviewed. 

Applicants for media nonimmigrant visas must demonstrate that they will be in the United 

States for a temporary, specific period; they have sufficient funds to cover their expenses in the 

United States; and they have significant ties abroad which will insure their return at the end of 

their visit.55 

Individuals traveling to the United States for the purpose of engaging in their profession as 

media representatives or journalists may not travel without a visa under the Visa Waiver 

Program (VWP). Media representatives coming to the United States to attend conferences or 

meetings or to purchase media equipment or broadcast rights can be considered ordinary 

business visitors, as long as they are not reporting on anything newsworthy. In this case, they 

may enter with B-2 visas or, if applicable, as visitors for business under the VWP. Spouses 

and/or minor children may accompany or join the principal media visa holder for the duration 

of his or her stay with their own media visas. Their applications must include a copy of the 

principal visa holder’s media visa.56

Representatives of NATO

The admission to the United States of foreign armed forces personnel under the North Atlantic 

Treaty Organization (NATO) is addressed in the NATO Status of Forces Agreement, which 

was signed in 1951. 57 This agreement defines the terms of the status of NATO members’ 
11

armed forces while serving abroad. Terms of admission for NATO employees and persons 

associated with NATO are not covered under the INA, but are found in the Treaty and 

codified in the CFR.58 Nonimmigrants entering with NATO visas are generally exempt from 

inspection at U.S. ports of entry; thus, the recorded number of entries for these nonimmigrants 

is low. 

Nonimmigrant aliens classified as NATO-1 through NATO-5 are officials, employees, or 

persons associated with NATO, and members of their immediate families, who may enter the 

United States in accordance with the NATO Status of Forces Agreement or the Protocol on 

the Status of International Military Headquarters set up pursuant to the North Atlantic Treaty 

(Paris Protocol). Civilians (and members of their immediate families) who are employed as 

members of a civilian component of NATO are classified as NATO-6 nonimmigrants. NATO-7 

applies to the attendants, servants, or personal employees of nonimmigrant aliens classified as 

NATO-1 through NATO-6.59 The categories of NATO nonimmigrants are explained below in 

Table 1.3. 

Table 1.3. Nonimmigrant Categories for NATO Employees 

NATO-1 Principal permanent representative of member state to NATO and resident 

members of official staff or immediate family. 

NATO-2 Other representatives of member state; dependents of member of a force 

entering in accordance with the provisions of NATO Status of Forces 

agreement; members of such force if issued visas. 

NATO-3 Official clerical staff accompanying representative of member state to NATO or 

immediate family. 

NATO-4 Official of NATO other than those qualified under NATO-3, employed on behalf 

of NATO and immediate family. 

NATO-5 Expert other than NATO officials qualified under NATO-4, employed on behalf 

of NATO and immediate family. 

NATO-6 Civilians, and members of their immediate families, who are employees of a 

force entering in accordance with the NATO Status of Forces Agreement, or 

as members of a civilian component attached to or employed by NATO 

Headquarters, Supreme Allied Commander, Atlantic (SACLANT), set up 

pursuant to the Paris Protocol. 

NATO-7 Attendants, servants, or personal employees of nonimmigrant aliens classified 

as NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, and NATO-6. 

Aliens in Transit and Crewmembers: C and D 

Because of the prevalence of international travel, each year numerous foreign nationals enter 

the United States en route to other destinations. Such visitors are required to obtain transit 

visas (C-1, C-2, or C-3) which are valid for a maximum of 29 days. Nonimmigrants with C visas 

may not change their status to any other nonimmigrant status and may not accept employment 

in the United States. 

A C-1 nonimmigrant is a foreign national proceeding in immediate and continuous transit 

through the United States to another country. Persons in the C-2 category are entitled to pass 

in transit to and from the United Nations Headquarters District and foreign countries. The 

C-3 visa is for foreign government officials in transit through the United States.60 In some cases, 
12

an individual who qualifies for a transit visa will also qualify for and receive a B-1 or B-2 

nonimmigrant visa instead.61 

Previously, an alien in immediate and continuous transit through the United States while 

traveling from one foreign country to another was permitted to enter the United States 

without first obtaining a nonimmigrant visa. This status, equivalent to a C-1 nonimmigrant visa, 

was valid only for travel involving layovers of no more than 8 hours and no more than 2 

transfers. However, use of this status was suspended in 2003. On August 7, 2003, the Secretary 

of Homeland Security and the Assistant Secretary of State for Consular Affairs published an 

interim rule suspending the Transit without Visa (TWOV) and International-to-International 

(ITI) transit programs based on credible intelligence concerning a specific threat of exploitation 

of these programs by terrorist organizations.62 

Non-U.S. crewmembers serving aboard a vessel or aircraft that will land in the United States 

also must obtain a visa. D visas are issued to crewmembers serving in good faith in a capacity 

required for normal operation and service on board a vessel or aircraft who intends to (a) land 

temporarily and solely in his or her role as a crewmember, and (b) to depart from the United 

States with the vessel or aircraft on which he or she arrived or on some other vessel or aircraft. 

The D-1 classification is for those crewmembers who are departing on the same vessel on 

which they arrived; D-2 is for crewmembers who have been discharged and intend to work on 

another vessel. Persons traveling with D-1 and D-2 visas may be permitted entry for the 

duration of their status as an alien crewmember.63 

Crewmembers traveling to the United States for the purposes of joining a ship or aircraft must 

also obtain a C-1 transit visa. In most cases, qualified applicants will receive a combined C-1/D 

visa, which enables them to travel to the United States by boat or plane in order to join their 

ships.64 However, in some cases, reciprocity does not allow for a combined C-1/D visa to be 

issued. When the reciprocity schedules for C-1 and D visas differ with regard to the number of 

applications or period of validity permitted in each category, the consular officer will issue 

separate C-1 and D visas. Spouses and children accompanying crewmembers, and not 

performing services on the vessel or aircraft, must obtain B-2 visas or other applicable 

nonimmigrant visas, unless they qualify under the Visa Waiver Program.65

Certain Family Members of U.S. Citizens and Lawful Permanent Residents: K, N, and V 

K-1 and K-2

The K and V nonimmigrant categories were created to eliminate unnecessary family separations 

caused by delays for applications to be adjudicated and/or for visas to become available. A 

foreign national who is coming to the United States to marry an American citizen in the United 

States may obtain a K-1 “fiancé(e)” visa. The minor children of a K-1 nonimmigrant will derive 

K-2 status as long as the children are named in the K-1 petition. The marriage must take place 

within 90 days of the K-1 nonimmigrant entering the United States, and the K-1 nonimmigrant 

is expected to apply for adjustment to permanent resident status as the spouse of a U.S. citizen 

upon marriage. 66 After arriving in the United States, the K-1 fiancé(e) may apply for work 

authorization (although USCIS might not be able to process the work permit within the 90-day 
13

time limit for the marriage to take place). However, when the fiancé(e) applies for adjustment 

to permanent resident status after the marriage, he or she must re-apply for a new work 

permit.67

K-3 and K-4

Similarly, the K-3 and K-4 nonimmigrant categories apply to the alien spouse and unmarried, 

minor children of a U.S. citizen. These visas permit the family members to enter the United 

States while awaiting adjustment of status, rather than having to remain overseas until the 

application is adjudicated and/or until a visa becomes available.68 K-3 and K-4 nonimmigrants 

are expected to apply for adjustment of status after they enter the United States.69 They may 

elect to apply for an immigrant visa instead of adjustment of status and may wait in the United 

States until they must appear at the consulate in the home country for their visa interview. 

They may also apply for authorization to work in the United States while they wait for their 

immigrant status.70 

V-1, V-2, and V-3

The V nonimmigrant category allows the spouses and children of U.S. lawful permanent 

residents (LPRs) to live and work in the United States while they wait for an immigrant visa. 

V-1 applies to the spouses of LPRs whose petitions for immigrant visas are pending, V-2 is for 

the children of LPRs, and V-3 is for the dependent children of V-2 visa holders.71 Only aliens 

who are the beneficiaries of immigrant visa petitions filed on or before December 21, 2000 are 

eligible to apply for V nonimmigrant status, and only if one of the following circumstances has 

occurred: (1) the immigrant petition has been pending for 3 years or more, or (2) the petition 

has been approved and 3 or more years have passed since the filing date because an immigrant 

visa is not immediately available or because the alien’s application for adjustment of status 

under section 245 of the INA remains pending.72

N-8 and N-9

Created by the Immigration Reform and Control Act (IRCA) of 1986, 73 nonimmigrant 

categories N-8 and N-9 are for the parents and children of special immigrants who had worked 

for international organizations in the United States as G-4 nonimmigrants. 

The special immigrant categories (SK-1 through SK-4 and SK-6 through SK-9) were created to 

alleviate the hardship imposed upon such individuals if required to return to their home 

countries after having spent a substantial amount of time in the United States.74 The N-8 and 

N-9 nonimmigrant classifications for their family members were intended to minimize family 

separations caused by the fact that some family members were not accorded special immigrant 

status.75 

In 1998, the American Competitiveness and Workforce Improvement Act (ACWIA) extended 

N-8 and N-9 status to the parents and children of NATO civilian employees (classified as 

NATO-6 nonimmigrants) who were given special immigrant status under ACWIA.76
14

Witnesses and Victims: S, T, and U 

S-5 and S-6

There are times when U.S. officials may deem it necessary to permit foreign nationals to enter 

the United States because their assistance is vital to the investigation and prosecution of a 

criminal case. Respectively, the S-5 and S-6 nonimmigrant categories apply to certain alien 

witnesses and informants who possess “critical reliable information” concerning a criminal or 

terrorist organization or enterprise. Such aliens must be willing to supply such information to 

U.S. officials, and the alien’s presence in the United States must be deemed essential to a 

criminal investigation or successful prosecution.77 

T-1, T-2, T-3, and T-4

The Victims of Trafficking and Violence Protection Act (VTVPA) permits individuals who have 

been victimized in the most severe fashion to remain in the United States temporarily (and in 

some cases longer) and receive certain types of Federal and State assistance. This law created 

the T-1 nonimmigrant category, which allows victims of severe trafficking in persons to remain 

in the United States and assist federal authorities in the investigation and prosecution of human 

trafficking cases. The T-1 classification applies to an alien whom the Attorney General 

determines is or has been a victim of a severe form of trafficking in persons; is at a port of 

entry or physically present in the United States, American Samoa, or the Commonwealth of the 

Northern Mariana Islands on account of such trafficking; has complied with any reasonable 

request for assistance in the investigation or prosecution of acts of trafficking (or is under 18); 

and who would suffer extreme hardship involving unusual and severe harm upon removal. The 

T-2 category is for the spouse of a victim of a severe form of trafficking in persons. T-3 is for 

the unmarried children, and T-4 is for the parents of the principal alien, if that person is under 

21.78

U-1, U-2, U-3, and U-4

Category U is for individuals who have suffered substantial physical or mental abuse as a result 

of having been a victim of criminal activity involving one or more of the following or any similar 

activity in violation of Federal, State, or local criminal law: rape; torture; trafficking; domestic 

violence; sexual assault; sexual exploitation; peonage; involuntary servitude; abduction; unlawful 

criminal restraint; false imprisonment; blackmail; extortion; murder; obstruction of justice; 

perjury; or attempt, conspiracy, or solicitation to commit such crimes. An alien is eligible for 

U-1 status if he or she possesses information concerning the criminal activity; the alien has been 

helpful or is likely to be helpful to Federal, State, or local law enforcement officials investigating 

or prosecuting the criminal activity; and the criminal activity involved violated the laws of the 

United States or occurred in the United States or its territories and possessions. The spouse, 

child, or parent (in the case of an alien child) of the alien may be granted U-2, U-3, or U-4 

nonimmigrant status, respectively, if it is determined to be necessary to avoid extreme 

hardship.79
15

Individuals who are identified as possible T or U victims may be granted work authorization 

pursuant to existing authority and utilizing existing application procedures. For instance, 

potential applicants who are paroled may be granted work authorization pursuant to 8 CFR § 

274a.12(c)(11); potential applicants who are placed on deferred action may be granted work 

authorization pursuant to 8 CFR § 274a.12(c)(14); and potential applicants who are granted a 

stay of removal may be granted work authorization in accordance with the provisions of 8 CFR 

§ 274a.12(c)(18).80
16
17

SECTION II 

HOW DID NONIMMIGRANT POLICY EVOLVE?

The Evolution of Nonimmigrants in Immigration Law 

Over time, the nonimmigrant categories have been expanded to meet the evolving needs of 

society. Industrialization and globalization have had a direct impact on the numbers of 

temporary visitors as well as the purposes of their visits. Business expansion into new 

technologies and international markets has had an impact on U.S. employers and their need for 

human resources. International travel has become commonplace, providing millions of visitors 

the opportunity to visit the United States. This section provides a brief overview of the 

historical development of U.S. nonimmigrant laws. This evolution is depicted in Figure 2.1. 

 

Early U.S. Immigration Laws: Before 1952 

The Steerage Act of 1819 established the official collection of immigrant arrival data and was 

the first Federal law to distinguish between permanent immigrants and temporary visitors. The 

reporting of “temporary arrivals” separately from permanent immigration was not required 

until the Act of 1855. It was not until the Immigration Act of 1907 that arriving aliens were 

required to declare their intention of permanent or temporary stay. This law officially classified 

arriving aliens as either immigrants or nonimmigrants.81 

Throughout the 1800s, the United States was expanding rapidly and immigrants and temporary 

workers were a welcome addition. However, as the 19th century drew to a close, the needs of 

the nation had changed. The western frontier had been settled, and some Americans had 

become concerned about the impact of population growth on wages and working conditions.82 

By the end of World War I, the United States had entered into a period characterized by 

nationalism and isolationism, resulting in the increasing regulation of immigration and foreign 

visitors to the United States.83 

The Immigration Act of 1917

The Immigration Act of 191784 incorporated and codified earlier immigration laws. Though not 

the first law to address the admission of aliens, the Act contains several provisions related to 

temporary admissions that were included in later laws. Section 16 of the Act required all aliens 

coming to the United States: 

to state under oath the purposes for which they come, the length of time they intend to 

remain in the United States, whether or not they intend to abide in the United States 

permanently and becomes citizens thereof, and such other items of information that will 

aid the immigration officials in determining whether they belong to any of the excluded 

classes...85
18

Figure 2.1 Timeline of the Evolution of Nonimmigrant Categories 

A, B, C, D, E, AND F RECOGNIZED BY 

THE IMMIGRATION ACT OF 1924* 

1924

G ADDED BY THE INTERNATIONAL 

ORGANIZATIONS IMMUNITIES ACT* 

1945 

H AND I CREATED BY THE 

IMMIGRATION AND NATIONALITY ACT 

OF 1952 

1952

J CREATED BY THE MUTUAL 

EDUCATIONAL AND CULTURAL 

EXCHANGE ACT OF 1961 

1961 F-2 ADDED BY MUTUAL EDUCATIONAL 

AND CULTURAL EXCHANGE ACT OF 

1961 

K AND L CREATED BY PUBLIC LAW 

91-225 

1970 H-4 CREATED BY PUBLIC LAW 91-225 

M CREATED BY THE IMMIGRATION AND 

NATIONALITY AMENDMENTS OF 1981 

1981 

N CREATED BY THE IMMIGRATION 

REFORM AND CONTROL ACT 

(IRCA) OF 1986 

1986 H-2 SPLIT INTO H-2A AND H-2B BY 

IRCA

1989 H-1A CREATED BY THE NURSING 

RELIEF ACT OF 1989 

O, P, Q AND R CREATED BY THE 

IMMIGRATION ACT OF 1990 

1990 

S CREATED BY THE VIOLENT CRIME 

CONTROL AND LAW ENFORCEMENT 

ACT OF 1994 

1994 

1999 H-1C (REPLACING H-1A) CREATED BY 

THE NURSING RELIEF FOR 

DISADVANTAGED AREAS ACT OF 1999 

T AND U CREATED BY THE VICTIMS OF 

TRAFFICKING AND VIOLENCE 

PROTECTION ACT OF 2000

2000 

V CREATED BY THE LEGAL 

IMMIGRATION FAMILY EQUITY (LIFE)

ACT OF 2000 

K-3 AND K-4 ADDED BY THE LIFE ACT

2002 F-3 AND M-3 CREATED BY THE BORDER 

COMMUTER STUDENT ACT OF 2002 

2003 H-1B1 CREATED BY THE UNITED 

STATES-CHILE AND THE UNITED 

STATES-SINGAPORE FREE TRADE 

AGREEMENTS

2005 E-3 CREATED BY THE REAL ID ACT

 * Nonimmigrant categories were designated by number, not letter, prior to 1952. 
19

The list of aliens to be excluded from admission to the United States included a variety of 

“defective persons,” including polygamists, criminals, professional beggars, persons likely to 

become public charges, and persons afflicted with “a loathsome or dangerous contagious 

disease.” 86 Exempt from some of the exclusion provisions, however, were: government 

officers, ministers or religious teachers, missionaries, lawyers, physicians, chemists, civil 

engineers, teachers, students, authors, artists, merchants, and travelers for curiosity or pleasure, 

and certain family members of such individuals.87

The Immigration Act of 1924

After World War I, the number and character of both immigrants and foreign visitors began to 

change as a result of the increasingly restrictive immigration legislation. For example, the 

Immigration Act of 1924 created a permanent quota system for immigration and also defined 

who was not an immigrant. Persons in these categories were considered “nonimmigrants”: 

When used in this Act the term “immigrant" means an alien departing from any place 

outside the United States destined for the United States, except (1) a government 

official, his family, attendants, servants, and employees, (2) an alien visiting the United 

States temporarily as a tourist or temporarily for business or pleasure, (3) an alien in 

continuous transit through the United States, (4) an alien lawfully admitted to the 

United States who later goes in transit from one part of the United States to another 

through foreign contiguous territory, (5) a bona fide alien seaman serving as such on a 

vessel arriving at a port of the United States and seeking to enter temporarily the 

United States solely in the pursuit of his calling as a seaman, and (6) an alien entitled to 

enter the United States solely to carry on trade under and in pursuance of the 

provisions of a present existing treaty of commerce and navigation.88

The Immigration Act of 1924 also provided for the admission of foreign students, although not 

as nonimmigrants. The law exempted alien students from quota limitations and classified them 

as immigrants to be granted temporary residence only.89 The Act included in its definition of 

nonquota immigrant “an immigrant who is a bona fide student at least fifteen years of age and 

who seeks to enter the United States solely for the purpose of study at an accredited school, 

college, academy, seminary, or university, particularly designated by him and approved by the 

Attorney General...” 90 Because students were given this special classification (compared to 

immigrants admitted for permanent residence and nonimmigrants admitted temporarily), it was 

concluded that they should be admitted for a longer period than other visitors, and while they 

were in the United States they were “entitled to the privileges similar to those enjoyed by 

aliens admitted for permanent residence.”91 However, foreign students enrolled as part-time 

students, in short courses, or in schools that had not been approved were admitted as 

nonimmigrant visitors for periods ranging from 3 months to 1 year.92

World War II Era

During the pre- and post-World War II era, much of U.S. immigration legislation focused on 

control of the alien population (such as with the Registry Act of 1929 and the Alien Registration 

Act of 1940), protecting the Nation (e.g., the Public Safety Act of 1941 and the Internal Security 

Act of 1950), and facilitating the entry of certain noncitizens, such as war brides and fiancé(e)s 
20

(e.g., the War Brides Act of December 28, 1945 and the G.I. Fiancées Act of June 29, 1946), 

and refugees (the Displaced Persons Act of 1948 and its amendments).93

During World War II several measures were passed to facilitate the admission of temporary 

workers to meet seasonal and temporary labor shortages. In 1943, Congress passed a joint 

resolution that exempted alien workers from the contract labor laws. 94 In addition, the 

Attorney General authorized the temporary admission of agricultural workers under the Ninth 

Proviso of Section 3 of the Immigration Act of 1917, and later legislation provided for the 

temporary admission of seasonal farm labor in what would become known as the Bracero 

Program.95 (The Bracero Program is discussed in greater detail in Section V.) 

International Organizations and Exchange Programs

During this time, the United States also increasingly recognized the importance of international 

cooperation with its allies. It was during this period that legislation was passed that permitted 

certain foreign nationals to enter the United States on a temporary basis, thus amending the 

Immigration Act of 1924 to create new nonimmigrant categories. 

In 1945, the International Organizations and Immunities Act was passed to “extend certain 

privileges, exemptions, and immunities to international organizations and to the officers and 

employees thereof...”96 Section 7 of the Act added to the list of individuals not considered to 

be immigrants, i.e., nonimmigrants. Representatives, officers, and employees of foreign 

governments or international organizations, as well as their family members, attendants, 

servants and employees, were permitted to enter the United States on a temporary basis.97

Three years later, Congress passed the U.S. Information and Educational Exchange Act, also 

known as the Smith-Mundt Act. 98 As the predecessor to the Fulbright-Hayes Act of 1961 

(discussed below), the law provided “for interchanges on a reciprocal basis between the United 

States and other countries of students, trainees, teachers, guest instructors, professors, and 

leaders in fields of specialized knowledge or skill...”99 Such persons were to be admitted as 

nonimmigrant visitors for business. 100 In the Senate report accompanying the bills, the 

Committee on Foreign Relations emphatically recommended the enactment of the legislation, 

stating: 

... the committee believes that the enactment of the bill is essential if we are to have 

mutual understanding between the people of the United States and the people of other 

nations which will serve as a firm and lasting foundation for world peace. Today that 

peace is endangered by the weapons of false propaganda and misinformation and the 

inability on the part of the United States to deal adequately with those weapons. Truth 

can be a powerful weapon on behalf of peace.101

Consolidation of Immigration Laws: 1952 

The Immigration and Nationality Act (INA) of 1952, also known as the McCarran-Walter Act, 

was enacted, in part, to “preserve the social and cultural balance of the United States.”102 This 

law reaffirmed the national origins quota system for immigrants and combined the many 

existing immigration laws into the new law.103 The INA of 1952 also recognized the existing 
21

categories of nonimmigrants, while adding two additional categories: persons approved to work 

temporarily in the United States for U.S. employers and representatives of international media. 

The temporary worker category, H, was created to accommodate the entry of persons from 

other countries who had been approved to work temporarily in the United States for a U.S. 

employer. This category differed significantly from the B-1 nonimmigrant (temporary visitor for 

business) who was admitted temporarily to conduct business for a non-U.S. business but also 

maintained his or her home abroad. Prior to the creation of the H nonimmigrant category, the 

provision of law regarding the admittance of temporary visitors for business was interpreted to 

exclude persons seeking to enter the United States temporarily to engage in employment. The 

Act of 1952 sought to remedy this by establishing a separate nonimmigrant class for temporary 

workers. 104 The Act authorized two types of workers: “aliens of distinguished merit and 

ability ... coming to the United States to perform temporary services of an exceptional nature 

requiring such merit and ability” (H-1), and temporary workers coming to fill temporary jobs, 

provided that there were no U.S. workers available to fill the positions (H-2).105 In addition, the 

Act provided for the admission of individuals coming temporarily to the United States as 

industrial trainees (H-3).106

Under the INA of 1952, representatives of foreign media who are traveling to the United States 

to work in their profession and who have a home office in a foreign country are eligible to 

apply for an I nonimmigrant visa. Prior to 1952, these nonimmigrants were classified as 

temporary visitors for business. This new category was added to facilitate the exchange of 

information among nations.107 

Thus, at the dawn of the second half of the 20th Century, the United States recognized these 

categories of temporary visitors: (A) officials of foreign governments and their families, 

(B) temporary visitors (such as tourists, persons visiting relatives, or persons conducting 

business), (C) foreign nationals in transit through the United States to another country, 

(D) crewmembers on foreign vessels, (E) traders and investors (and their spouses and/or 

children) who are doing trade or overseeing investments in the United States under existing 

international treaties, (F) academic students, (G) foreign government officials representing 

international organizations (such as employees and representatives of organizations like the 

United Nations and the World Bank), (H) persons approved to work temporarily in the United 

States for a U.S. employer, and (I) representatives of international media. 

The Expansion of International Relationships: 1960s and 1970s 

As international communications, cooperation, and travel expanded throughout the 20th

century, it became apparent that additional nonimmigrant categories for the temporary entry of 

foreign nationals were needed. Increased commerce, ease of travel, the expansion of U.S. 

armed forces stationed at various locations around the world, and the rise in the number of 

students from abroad attending universities and colleges in the United States were just some of 

the issues affecting global travel and migration at that time. Thus, immigration law was modified 

to accommodate these societal changes by adding more categories of nonimmigrants. 
22

Exchange Visitors

In 1961, the Mutual Educational and Cultural Exchange Act, also known as the Fulbright-Hayes 

Act, was enacted to further the U.S. commitment to international exchange programs.108 The 

Act created the J-1 nonimmigrant category specifically for educational and cultural exchange 

program participants. The new category was necessary because “exchange aliens [were] 

variously, and rather haphazardly, issued different types of statutorily established nonimmigrant 

visas,” primarily B and F. 109 The legislative history notes that the main purpose of the new 

category was to reserve the F visa for students other than exchange students and to make the J 

visa available solely to nonimmigrants selected under exchange programs.110

Family Members

Congress also recognized that provision needed to be made to permit the spouses and minor 

children of foreign students and exchange visitors to enter with the family member participating 

in such programs. It is important to distinguish between the principal alien (the student or the 

exchange visitor) and his or her dependents because the principal may be authorized to do 

things that the dependents cannot, such as attend college or work in the United States. Thus 

Congress created new subcategories of nonimmigrants to accommodate the spouses and 

children of foreign students and exchange visitors. The Mutual Educational and Cultural 

Exchange Act created the J-2 category for exchange program participants’ spouses and children, 

and the F-2 category for the spouses and children of foreign students. 111 Similarly, the H-4 

nonimmigrant category was created by Public Law 91-225 in 1970 for the spouses and children 

of temporary workers.112

Intracompany Transferees and Fiancé(e)s of U.S. Citizens

The immigrant and nonimmigrant classification systems also did not accommodate groups of 

noncitizens that were growing in numbers as a result of increased international mobility. First, 

due to greater international travel, foreign study, and the presence of U.S. armed forces 

throughout the world, a growing number of noncitizens were marrying U.S. citizens. After 

World War II, for example, Congress had enacted special laws designed to permit the entry of 

noncitizen spouses and fiancé(e)s of U.S. citizens to the United States.113 However, these laws 

had been specifically for fiancé(e)s of members of the armed forces and had since expired, 

leaving no provisions for the entry of fiancé(e)s in immigration law. The need for a mechanism 

for the entry of fiancé(e)s became apparent as members of the armed forces found it difficult to 

obtain permission to marry during their tours of duty abroad. As a result, they had to either 

travel abroad to marry at a later date in order for their fiancé(e) to qualify for immediate 

relative status as their new spouse, or they had to wait for a nonpreference immigrant visa 

number to become available for the fiancé(e)s, which for some countries could take many years. 

Thus, the Act of April 7, 1970114 added the K-1 and K-2 nonimmigrant categories for fiancé(e)s 

of U.S. citizens and their children, respectively. Unlike the previous laws, this law applied to the 

fiancé(e) of any U.S. citizen, not just members of the armed forces.115 

Second, the growth in multinational companies brought about the need to accommodate the 

movement of managers of these companies among branches and subsidiaries throughout the 
23

world, including the United States. The 1965 amendments to the Immigration and Nationality 

Act abolished the national origins quota system and replaced it with a system of uniform 

numerical limits. Under the pre-1965 system, it is generally believed that migrants from 

countries with large, unused immigration quotas and from Western Hemisphere countries with 

few quantitative limits on entry used the permanent immigration system to enter the United 

States for temporary purposes. After 1965, it became more difficult for international 

businesses (which also had been growing in number) to use immigrant visas to transfer 

employees to offices and subsidiaries in the United States. In particular, the imposition of a 

numerical ceiling on the immigration of persons born in the Western Hemisphere, when 

previously there had been no limit, made the transfer of employees from Canadian branches of 

international firms problematic. To resolve this difficulty, the L-1 nonimmigrant category was 

created for intracompany transferees.116 

Nonacademic and Vocational Students

In the 1970s and 1980s, concerns about the ability of the Immigration and Naturalization 

Service (INS) to track the growing number of foreign students, as well as concerns over 

incidents of terrorism, led to further changes in the nonimmigrant categories. In the wake of 

the 1979 American hostage crisis in Iran, it was discovered that the INS did not know the 

number or whereabouts of Iranian students in the United States. The INS was instructed to 

identify any Iranian students who were not in compliance with the terms of their nonimmigrant 

entry visas, and Iranian students were required to report their location and status to the INS.117 

Of the more than 64,000 Iranian students estimated to be in the United States, slightly more 

then 7,500 were found to have violated their status.118 

At the same time, hearings on foreign student policies were held by both Congress and the 

Select Commission on Immigration and Refugee Policy. During these hearings, concern was 

voiced that there was a high percentage of foreign students enrolled in vocational programs in 

fields that had little or no applicability to their own country.119 As a result of these efforts, 

Congress determined that there was a need to better track the immigration status of students. 

The Immigration and Nationality Act Amendments of 1981 120 created a new nonimmigrant 

category for foreign students. The M-1 classification was established for aliens pursuing full 

time studies in vocational or other nonacademic institutions, with the exception of language 

training programs. The Act also limited the F-1 category to academic institutions and language 

training programs. Because foreign language training programs were often a prerequisite for 

entry into institutions of higher education, it was determined that students in such programs 

would continue to be classified as F-1 nonimmigrants.121

Immigration Reform and Control: 1986 

The Immigration Reform and Control Act (IRCA) of 1986 122 significantly reformed U.S. 

immigration law. The Act was intended to control illegal immigration through stronger 

enforcement actions, including increased border control and sanctions for employers who hire 

illegal workers, as well as a legalization program for specific groups of illegal immigrants already 

in the United States as of January 1, 1982. 123 The 1986 Act also made changes to the 

nonimmigrant provisions of the law. First, IRCA revised the nonimmigrant class of temporary 
24

workers performing services when U.S. workers were unavailable by dividing it into two 

categories: agricultural workers (H-2A) and other temporary workers (H-2B).124 

Second, the Act created new nonimmigrant categories for the parents (N-8) and children (N-9) 

of some special immigrants. The Act created a special immigrant category to allow certain 

retired employees of international organizations, their unmarried sons and daughters, and their 

surviving spouses (all formerly G-4 nonimmigrants) to adjust to permanent resident status. The 

provision was designed to alleviate the hardship imposed upon such individuals, who often have 

spent a substantial amount of time in the United States, during which they became integrated 

into U.S. society.125 The nonimmigrant classifications for their family members, authorized by 

IRCA, also were intended to minimize family separations caused by the fact that some family 

members were not accorded special immigrant status.126 Thus, the parents and minor children 

of individuals given the special immigrant status under this Act were made eligible for the new 

nonimmigrant status.127

Finally, IRCA authorized the Visa Waiver Pilot Program, which allowed certain tourists and 

business travelers to visit the United States without applying for a nonimmigrant visa on a smallscale basis. This program was revised and extended through Fiscal Year 1994 by the 

Immigration Act of 1990,128 and made permanent by the Visa Waiver Permanent Program Act 

of 2000.129 (The Visa Waiver Program is discussed in greater detail in Section VII). 

Addressing Legal Immigration and Temporary Entrants: 1990s 

The debate over immigration reform continued after the passage of IRCA. In their 1981 report, 

the Select Commission on Immigration and Refugee Policy had called for comprehensive 

immigration reform encompassing both illegal and legal immigration. Legislation was introduced 

to discuss both of these issue areas but was subsequently divided on the theory that it was 

critical to gain control of illegal immigration before reforming legal immigration. Thus, after the 

passage of IRCA in 1986, which primarily addressed illegal immigration, Congress turned their 

attention to reforming the legal immigration system. 130 These efforts culminated in the 

Immigration Act of 1990.131 

The 1990 Act substantially revised U.S. immigration law. It provided for an overall but 

pierceable cap of 675,000 immigrants, beginning in Fiscal Year 1995, in three major categories: 

family-based, employment-based, and diversity immigrants. In addition, naturalization 

requirements were revised and the Attorney General was given the authority to grant 

temporary protected status to aliens from designated countries subject to armed conflict or 

natural disasters. With regard to nonimmigrants, the 1990 Act revised some categories, 

created four additional categories, and extended the Visa Waiver Pilot Program. 132 The 

modifications to the nonimmigrant categories made by the Immigration Act of 1990 are 

summarized in Table 2.1. 
25

Table 2.1. Changes in Nonimmigrant Categories, 1990

Nonimmigrant Category Changes Made 

A - Foreign government officials No changes 

B - Temporary visitors Extended the Visa Waiver Pilot Program until September 30, 

1994; permitted entry under the visa waiver program at land 

ports of entry. 

C- Aliens in transit No changes 

D - Alien crewmembers Denied crewmember status in certain labor disputes; prohibited 

nonimmigrant crewmembers from performing longshore work 

(with some exceptions, including the filing of a labor attestation). 

E - Treaty traders and investors Designated two countries (Australia and Sweden) whose 

nationals can receive E status without a specific bilateral treaty in 

place; added trade in services and technology as eligible areas 

of trade; defined “substantial” for the purposes of E visa 

classification as “such an amount of trade or capital as 

established by the Secretary of State” in consultation with other 

agencies. 

F - Academic students Created a 3-year pilot program to allow foreign students to work 

part-time off campus. A labor attestation was required for 

participating businesses. 

G - Representatives to international 

 organizations 

No changes 

H - Temporary workers H-1A (nurses): placed responsibility for filing attestations on both 

the registry and the hospital, as long as they were independent 

of one another; DOL given authority to waive attestation in 

certain circumstances 

H-1B (skilled workers): redefined specialty occupations as 

requiring highly specialized knowledge and a bachelor’s degree 

(or equivalent); required employers to file labor attestation; 

created annual cap of 65,000. 

H-2A (agricultural workers): no changes

H-2B (skilled/unskilled): created annual cap of 66,000. 

H-3 (trainees): codified existing INS regulations by adding the 

requirement that training programs not be designed to provide 

“productive employment.” 

I - Representatives of foreign media No changes 

J - Exchange visitors No changes 

K - Fiancé(e)s of U.S. 

 citizens and their children 

No changes 

L - Intracompany transferees Broadened definitions of specialized knowledge and managerial 

and executive capacity; relaxed prior experience requirement; 

lengthened period of admission; required 30-day processing of 

petitions.

M - Vocational students No changes 

NATO - NATO officials and families No changes 

N - Parents or children of special 

 immigrants (who were formerly 

 G-4 nonimmigrants) 

No changes 

O - Aliens of extraordinary ability Created by the Immigration Act of 1990 

P - Athletes and entertainers Created by the Immigration Act of 1990 

Q - Cultural exchange visitors Created by the Immigration Act of 1990 

R - Religious workers Created by the Immigration Act of 1990 

Source: “The Immigration Act of 1990 Analyzed: Part 4 – Nonimmigrant Visas B to H-1A,” Interpreter 

Releases, vol. 68, no. 1 (January 7, 1991), p. 1; “The Immigration Act of 1990 Analyzed: Part 6 – The 

Remaining Nonimmigrant Visa Provisions,” Interpreter Releases, vol. 68, no. 3 (January 7, 1991), p. 69.
26

Crewmembers

Many of the changes to nonimmigrant requirements were enacted in response to concerns 

from both labor unions and business interests over how the entry of all foreign workers should 

be controlled. 133 For example, changes in the rules for crewmember nonimmigrant visas 

(D visas) stemmed from a labor dispute between Trans World Airlines and the flight 

attendants’ union. The union alleged that during a strike the airline employed nonresident 

aliens on trans-Atlantic flights. Although IRCA had passed a 1-year ban on alien crewmembers 

working during strikes, the provision had expired and Congress had not reauthorized the 

provision.134 This issue was addressed in section 202 of the 1990 Act, which denied alien crew 

member status during certain labor disputes, thus closing “a gap in immigration law which 

unfairly harms American workers who exercise their right to strike.”135

Temporary Workers, Treaty Traders and Investors, and Intracompany Transferees

In drafting the 1990 Act, Congress focused considerable attention on the temporary worker 

nonimmigrant categories. The legislative history of the Act notes that between 1981 and 1988, 

the annual number of H-1 admissions had increased by over 30,000. There also was concern 

that because there was no labor certification requirement (to demonstrate that no U.S. worker 

would be displaced), the H-1 category was open to abuse.136 

Citing the rise in the number of visa issuances and “the problem of H-1 visa abuse,” Congress 

redefined and split-out certain categories of workers, as well as placing numerical limits on all 

categories that were formerly H visas.137 Certain entertainers, athletes, artists, and persons of 

“extraordinary ability” were given the new nonimmigrant categories of O and P. Persons in 

“specialty occupations” remained in the H-1B category, and were redefined as occupations 

requiring highly specialized knowledge and a bachelor’s degree or equivalent. These changes 

were made in response to concerns that the requirement of “distinguished” was not 

appropriately applied to the H-1 category.138

Noting that the supply of temporary workers had “not kept up with the demands of American 

business in the international marketplace,” Congress also modified the E nonimmigrant category 

to take advantage of technological advances by allowing the transfer of technology and services 

under the definition of the E category.139 In addition, the Act made several changes to the L-1 

category, including: broadening the definitions of managerial and executive capacity and 

specialized knowledge, relaxing the prior experience requirement (permitting the applicant to 

gain qualifying experience anytime within the 3 years preceding admission, rather than 1 year 

preceding admission), lengthening the maximum period of admission, and giving the INS a 30-

day deadline in which to process L-1 petitions.140

Exchange Visitors

In response to charges that the J-1 exchange visitor programs were “inappropriately utilized for 

employment purposes,” 141 the Immigration Act of 1990 established the Q nonimmigrant 

category for certain participants in cultural exchange programs. Prior to the passage of the Act, 

the General Accounting Office (GAO) had issued a report on the use of J-1 exchange visitor 
27

visas, noting that “the J-visa program has expanded to include activities that do not meet the 

qualifying language of the J-visa statute.”142 Of particular concern were au pair programs and 

other programs in which work was a substantial part of the participants’ activities. GAO 

recommended that other visa categories, such as H, L, and M, may be more appropriate for 

such activities. 143 Concerned that the J-1 visa program could be eliminated or substantially 

modified, several major companies, including the Walt Disney Company, urged Congress to 

create a program that would legitimately permit them to bring in workers for cultural 

programs. 144 Thus, the Q nonimmigrant category, sometimes called “the Disney Visa,” was 

developed. 

According to the 1990 Act, an alien may qualify for a Q nonimmigrant visa if he or she is a 

participant in an international cultural exchange program the purpose of which is to provide 

“practical training, employment, and the sharing of the history, culture, and traditions of the 

country of the alien's nationality... ."145 This exchange program is administered by USCIS, and 

participating employers must be designated by the Department of Homeland Security as 

operating qualifying exchange programs. 

Religious Workers

The 1990 Act also created a separate nonimmigrant category for religious workers. Prior to 

that time, temporary religious workers had to qualify for one of the other nonimmigrant 

categories, such as B-1, H-1B, H-3, J-1, or L-1. Often, however, these categories were not 

appropriate for the type of work religious workers did. For example, prior to 1990, the H-1B 

category required an alien to be “prominent” in his or her field or to have a professional degree, 

which some religious workers did not possess. Because of these difficulties, as well as a 

shortage of domestic religious workers, religious groups lobbied Congress to include provisions 

specifically for religious workers in the 1990 Act.146 

The R nonimmigrant category was created for members of religious denominations “having a 

bona fide nonprofit, religious organization in the United States” seeking to enter for a period 

not to exceed 5 years to work for that religious organization. 147 In creating this category, 

Congress instituted safeguards to guard against abuse, requiring all prospective R 

nonimmigrants to have been members of their religious organization for the 2 years 

immediately preceding their application for a visa.148

Miscellaneous and Technical Amendments of 1991

As the effective date of the Immigration Act of 1990 neared, Congress received numerous 

letters concerning the implementation of the new O and P nonimmigrant categories. 

Organizations within the entertainment and athletics industries had expressed concerns over 

the labor union consultation requirements, the annual caps, the length of time entertainment 

group members were required to be with the group, and the requirement that visa applications 

be made no more than 90 days prior to the anticipated date of entry.149 As originally written, 

the provisions of the Act relating to the O and P categories were to be implemented on 

October 1, 1991; however, a clause was added to the Armed Forces Immigration Adjustment 
28

Act (which was signed into law on October 1, 1991) to delay implementation of the O and P 

provisions until April 1, 1992.150

After consideration of the concerns expressed by the various groups, Congress drafted the 

Miscellaneous and Technical Immigration and Naturalization Amendments of 1991.151 The bill, 

signed into law on December 12, 1991, provides a variety of modifications to the 1990 Act. 

With regard to nonimmigrants, the 1991 amendments clarified the standards and requirements 

for the O and P categories, modified the consultation requirement, and defined “extraordinary 

ability” for O nonimmigrants. In addition, the INA section concerning H-1B nonimmigrants was 

amended to include fashion models. 152 According to a House Report accompanying the bill, 

“Fashion models are specifically mentioned in the legislation because an oversight in the 1990 

law effectively precludes all but the most famous such persons from coming to the United 

States.”153

Efforts to Prevent Crime and Protect Victims: 1994 to 2000 

Crime in the United States was a key issue of the 1980s and 1990s. The violent crime rate had 

been increasing since the 1970s and peaked between 1986 and 1993.154 At the same time, there 

was a growing awareness and concern over the issues of violence against women, trafficking in 

persons, and terrorism.155 As a result, several laws were passed that addressed these issues, 

including the immigration-related aspects of such crimes. 

In 1994, sweeping changes were made to the nation’s law enforcement efforts with the passage 

of the Violent Crime Control and Law Enforcement Act.156 Referred to as the “largest crime 

bill in the history of the country,”157 the Act provided for 100,000 new police officers, funding 

for prisons and crime prevention programs, and additional funding for Federal law enforcement 

agencies, including the INS and the FBI. In addition, the law addressed several issues, including 

firearms sales and licensing, telemarketing fraud, gangs, alien smuggling, and violence against 

women.158

Among the immigration provisions of the law was the designation of the S nonimmigrant 

category for witnesses and informants possessing information concerning criminal organizations 

or terrorist information. According to the new law, aliens who possessed “critical reliable 

information” concerning a criminal or terrorist enterprise, who were willing to share that 

information with U.S. officials, and whose presence in the United States was required for the 

successful investigation or prosecution of the criminals or terrorists, would be eligible for 

nonimmigrant status, and most grounds for exclusion could be waived for such aliens.159 

Additional anti-crime efforts were enacted into law in 2000 with the Victims of Trafficking and 

Violence Protection Act.160 The purpose of this law is to “prevent trafficking in persons, to 

ensure punishment of traffickers, and to protect their victims.”161 Among the provisions of the 

Act was the creation of T and U nonimmigrant visas. 

The T nonimmigrant visa is for alien victims of severe forms of trafficking in persons. The 

individual must demonstrate that he or she is a victim of a severe form of trafficking, is willing 
29

to cooperate with law enforcement, and is unable to return home for fear of retribution. The 

need for this status is described in the House Report accompanying the bill, 

When trafficked persons are brought to the United States, they are often deportable for 

having entered illegally. Many are smuggled into the country. Others obtain visas under 

false pretenses, use fraudulent passports, or overstay their visas. Once placed in the sex 

trade or forced labor, the victims’ traffickers control them through threats. The victims 

are told that if they escape or go to law enforcement authorities, they will be deported. 

Of those victims who do give information to authorities, some claim that they cannot 

return to their home country for fear of retribution at the hands of their traffickers.162

Also created by the Victims of Trafficking and Violence Protection Act of 2000, the U visa is for 

victims of certain other crimes. Individuals who have suffered substantial physical or mental 

abuse as a result of having been a victim of criminal activity, including, rape, torture, domestic 

violence, prostitution, involuntary servitude, blackmail, false imprisonment, and other crimes 

identified in the law, may be eligible for a U nonimmigrant visa. The individual must possess 

information concerning the criminal activity and must be willing to help authorities investigating 

or prosecuting the criminal activity. In addition, the criminal activity must have occurred in the 

United States (or its territories and possessions).163

Family Equity: 2000 

The final, currently existing nonimmigrant category, V, was established in 2000 with the Legal 

Immigration Family Equity (LIFE) Act. That law also created additional subcategories within the 

K nonimmigrant category. The purpose of these categories is to alleviate family separations 

caused by the wait for immigrant visas. 

Prior to the creation of the V visa, spouses and children of legal permanent residents faced a 

wait of at least 4 years to receive a green card; the wait was longer for certain groups, such as 

Mexican nationals, depending on the availability of immigrant visas. Family members waiting for 

immigrant visas, usually in unlawful status, were not permitted to remain in the United States 

with the petitioning family member or to adjust status. Further, because they were considered 

intending immigrants, they were unable to obtain nonimmigrant visitor visas. As a result 

families entered illegally or were separated for many years. 164 The V nonimmigrant visa, 

however, is only available to those individuals who have had an application for immigrant status 

pending for at least 3 years, or that have been approved and 3 years have passed since the filing 

date.165

The LIFE Act also created the K-3 and K-4 nonimmigrant categories for the spouses and minor 

children, respectively, of U.S. citizens who are waiting for the adjudication of their immigrant 

visa applications. Although they are immediate relatives of U.S. citizens and not subject to an 

annual cap on immigration, such individuals often wait many months to receive a visa due to 

administrative processing delays. Further, as was the case with individuals now eligible for V 

visas, because they would be intending immigrants they were ineligible for nonimmigrant visitor 

visas. The creation of the K-3 and K-4 visas, like their cousins K-1 and K-2, permit the visa 

holders to enter the United States and adjust status in the United States, thus permitting the 

families to be in the United States together.166
30

Creating Subcategories of Nonimmigrants 

As noted above, the nonimmigrant categories have evolved over time. From categories A 

through E, prior to the passages of the Immigration and Nationality Act of 1952, to the creation 

of categories T, U, and V in 2000, almost the entire alphabet has been used over the last halfcentury to describe the various reasons foreign nationals have for requesting temporary entry 

to the United States. However, throughout this period additions have been made to the 

existing categories as well (see Figure 2.1). For example, as discussed above, the LIFE Act 

added K-3 and K-4 to the existing K nonimmigrant category. 

As noted in the preceding section, the H-1 category has undergone many revisions and 

subcategories have been added to this category from time to time. The Nursing Relief Act of 

1989 167 and the Nursing Relief for Disadvantaged Areas Act of 1999 168 created separate 

subcategories for foreign nurses. In response to the shortage of nursing professionals in the 

United States, Congress created the H-1A nonimmigrant category in 1989.169 Foreign nurses 

were admitted to the United States in this category under a 5-year pilot program that expired 

in 1995, but was later extended through September 30, 1997.170 After the original program 

expired, Congress created the H-1C nonimmigrant category, established by the Nursing Relief 

for Disadvantaged Areas Act of 1999. This law specified that the program would expire 4 

years after the date the regulations implementing the law were published by the Department of 

Labor.171 Thus, after September 20, 2004, the Department of Labor was no longer accepting 

labor attestations under the H-1C program.172

The H-1 category was appended again in 2003 with the passage of free trade agreements with 

Chile and Singapore.173 These agreements resulted in the creation of the H-1B1 nonimmigrant 

category, with numerical limits of 1,400 for Chileans and 5,400 for Singaporean treaty workers. 

The category is for the entry of persons in specialty occupations requiring “(A) theoretical and 

practical application of a body of specialized knowledge; and (B) attainment of a bachelor’s or 

higher degree in the specific specialty (or its equivalent)... .” 174 Unlike the other H-1B 

classifications, the new subcategory does not require a petition, and while the initial entry 

period is for 1 year, the alien may receive unlimited extensions in 1-year increments.175

The cultural exchange nonimmigrant category Q was expanded in 1998 to accommodate the 

Irish Peace Process Cultural and Training Program, also referred to as the Walsh Visa Program 

after Congressman James Walsh who sponsored the bill. The nonimmigrant categories Q-2 

(program participants) and Q-3 (spouses and dependents) were authorized by the Irish Peace 

Process Cultural and Training Program Act of 1998. 176 The original legislation has been 

extended twice, with the final program participants expected to depart the United States in 

2008.177 

The Irish Peace Process Cultural and Training Program provides employment and vocational 

training opportunities in selected cities in the United States. It also offers conflict resolution 

training and other activities designed to involve participants in U.S. society. The goal is to help 

the participants develop and enhance personal and professional skills which can then be applied 

in their home countries. Participants come from disadvantaged areas of Northern Ireland and 

the six border counties of the Republic of Ireland.178
31

The student categories were expanded by the Border Commuter Student Act of 2002.179 This 

law created the F-3 and M-3 nonimmigrant categories for commuter students from Canada and 

Mexico who continue to reside in their home country while commuting to the United States to 

attend an approved school.180 As one of its post-September 11, 2001 border security initiatives, 

the INS reviewed several policies and practices and issued a memorandum to regional offices 

advising them to discontinue, by July 1, 2002, any local practices permitting the entry of parttime commuter students with visitor visas or border crossing cards, as such documents were 

inappropriate for the intended purpose of attending school. The memorandum also reminded 

the offices that part-time students were ineligible for student visas, because nonimmigrant 

student visas required the student to pursue a full course of study.181 

However, because strict adherence to these requirements would effectively bar Mexican and 

Canadian nationals from attending U.S. institutions of higher education on a part-time basis, 

many individuals expressed concern with the efforts of the INS to enforce the rule. 

Congressional intervention extended the deadline for discontinuing the admittance of part-time 

students through December 31, 2002.182 Later, the INS published an interim rule to expand the 

F and M visa categories to “recognize the special relationship between the United States and its 

neighbors and to legitimize such study by border commuter students, while placing it within a 

regulated, controlled, process.”183 At the same time, some members of Congress, recognizing 

the positive impact commuter students can have on their home communities, drafted legislation 

to address the issue.184 The bill, the Border Commuter Student Act,185 was signed into law on 

November 2, 2002, thereby creating new nonimmigrant categories for commuter students. 

Finally, two additional free trade agreement nonimmigrant categories were added in 2003 and 

2005. In 2003, the United States signed free trade agreements with Chile and Singapore, 

resulting in the creation of the H-1B1 nonimmigrant category for workers in specialty 

occupations.186 In 2005, the E-3 nonimmigrant visa category was added by the Real ID Act.187 

This category is reserved for Australian nationals also working in specialty occupations.188

Conclusion 

The nonimmigrant system has evolved in a logical fashion over time as the needs of the United 

States and the world have changed. Through its laws and regulations, the United States has 

developed requirements for the entry of visitors from other countries. The requirements vary 

somewhat by the nationality of the visitors, the purposes for which they visit, the relationship 

the United States has with certain countries, and considerations for the safety and security of 

U.S. citizens, permanent residents, and visitors. However, the system also has become more 

complicated with the addition of categories, changing requirements, and security considerations. 

Nonetheless, the need for foreign nationals to enter the United States on a temporary basis will 

continue to exist, and the nonimmigrant system will continue to evolve to reflect the needs of 

the United States. 
32
33

SECTION III 

HOW DO U.S. NONIMMIGRANT POLICIES 

COMPARE TO OTHER COUNTRIES? 

In many ways, the U.S. nonimmigrant visa policy is similar to that of other countries. Many 

countries have a variety of rules and procedures that are applied to different reasons for visiting 

the country. In general, different requirements must be met for individuals requesting 

admission for personal visits, to study, or to work. This section compares the nonimmigrant 

policies of Australia, Canada, Japan, the Philippines, and the European Union to that of the 

United States. 

Australia 

All persons traveling to Australia, except citizens of New Zealand, are required to have a visa 

or Electronic Travel Authority (ETA) as proof of authorization to travel to Australia. The 

Australian government introduced ETAs in 1996. An ETA is equivalent to a visa, but rather 

than being a stamp in a passport, is an electronic record accessible by airlines and travel agents, 

as well as by officials at Australian ports of entry. This record includes all of the traveler’s 

passport information, as well as the authorization for travel to Australia.189

Applications for ETAs are submitted through travel agents, airlines, or online via the Internet, 

rather than at an embassy or consulate, and checked against government databases. If no 

adverse information is found, the ETA is granted. 190 There are two types of ETAs, which are 

similar to the U.S. temporary visitor visas (B-1 and B-2): the visitor ETA and the short validity 

business ETA. Each permits stays up to 3 months. Similar to the U.S. visa waiver program, only 

nationals of certain countries are eligible for ETAs. The 34 countries and/or jurisdictions able 

to participate in the ETA issuing system include Andorra, Austria, Germany, Greece, Hong 

Kong, South Korea, Switzerland, Taiwan, the United States, and Vatican City.191 

For those ineligible for an ETA, there are several classes (and subclasses) of Australian 

nonimmigrant visas, each carrying different conditions, such as restrictions on employment or 

studies. Visa classes include visitors, workers, students, and temporary entrants for other 

reasons. For example, there is a specific type of visa for temporary retirement. This visa class 

permits persons who are 55 years or older with sufficient income or capital, to enter Australia 

for an extended temporary stay. Holders of temporary retirement visas must: meet specific 

income or asset requirements, have no dependent children, have adequate health insurance, 

and be of good health and character. In addition, they must have no intention of working fulltime in Australia, though they are permitted to work up to 20 hours per week.192 

Australia also has a separate visa category for “working holiday makers,” who participate in a 

special program that “enhances the cultural and social development of young people, promotes 

mutual understanding between Australia and other nations and is an important part of the 

tourist industry.”193 This type of visa is available to individuals seeking to enter Australia for 

extended visits, the primary purpose of which is tourism. However, the working holiday maker 

visa permits visitors to supplement their travel funds through incidental employment “of a 
34

temporary or casual nature.” Work for longer than 3 months with any one employer is not 

permitted. To qualify for this type of visa, the applicant must be between the ages of 18 and 30, 

must not have dependent children, and should have sufficient funds to return to their home 

country as well as for the first part of their stay. The working holiday maker visa is valid for 

stays of up to 12 months.194

The student visa categories also are different from those in the United States. Whereas there 

are two main U.S. student visa categories (academic and vocational students), the Australian 

student visa program has seven subclasses, as show in Table 3.1. The visa subclass is 

determined by the type of courses taken.195 

Table 3.1. Australian Student Visas 

Source: Government of Australia, Department of Immigration and Multicultural and Indigenous 

Affairs, “Student Visa Subclasses and Assessment Levels” accessed at 

<http://www.immi.gov.au/study/visas/subclasses_assessment.htm.> 

There are several conditions attached to student visas. Initially, student visa holders may not 

work. Students (and their family members) may apply for work after their studies have 

commenced; the educational institution must electronically notify the Department of 

Immigration and Multicultural and Indigenous Affairs that the student has commenced his or her 

coursework. If approved, students may work up to 20 hours per week, and full-time during 

school breaks. Family members may work no more than 20 hours per week during the entire 

time the student visa holder is in status. Other conditions address topics such as changing 

schools or courses of study, having adequate health insurance, and having adequate financial 

support. 196

Student Visa Subclass Main Course of Study 

570 - Independent ELICOS English Language Intensive Courses for Overseas Students (ELICOS), 

undertaken as a stand-alone course (not leading to an Australian diploma 

or degree), or undertaken as a stand-alone course, leading to a 

certificate. 

571 - Schools Primary or secondary school courses, or courses in an approved 

secondary exchange program 

572 - Vocational Education 

 and Training 

Certificate I, II, III, and IV (except ELICOS), diploma, or advanced 

diploma 

573 - Higher Education Bachelor degree, associate degree, graduate certificate, graduate 

diploma, or masters coursework 

574 – Postgraduate 

 Research 

Masters research or doctoral degree 

575 - Non-award Non-degree foundation studies, or other full-time course or components 

of courses not leading to an Australian diploma or degree 

576 - AusAID and Defense Full-time courses of any type undertaken by an AusAID or Defense 

student sponsored by the Australian Government 
35

Canada 

Before traveling to Canada as a visitor, student, or worker, foreign nationals are required to 

obtain a temporary resident visa, unless they qualify for an exemption from this requirement 

(U.S. citizens and permanent residents are not required to obtain a visa). 197 A temporary 

resident visa is an official document that is obtained from a Canadian visa office abroad and is 

placed in a person’s passport as proof that the individual has met the requirements for 

admission to Canada as a temporary resident. There are three types of temporary resident 

visas: single entry, multiple entry, and transit visas.198

Temporary Residents 

To qualify for a temporary resident visa, individuals must: satisfy an immigration officer that they 

will leave Canada, demonstrate that they have enough money to maintain themselves and their 

family members while in Canada and to return home, not intend to work or study in Canada 

unless authorized to do so, be law abiding and have no record of criminal activity, not be a risk 

to the security of Canada, and be in good health. Additional documents may be requested to 

establish admissibility.199

Temporary Workers 

Canada allows the entry of foreign workers for temporary work in areas where there are skill 

shortages. In most instances, temporary workers are required to have a valid work permit. 

Before applying for a permit, the worker must have a job offer, and Human Resources 

Development Canada (HRDC) must provide a labor market opinion confirming that the worker 

may accept the job. In addition, temporary workers must meet the entry requirements 

specified above for temporary residents.200 

Not all types of work are required to have a labor market opinion, and some workers may not 

be required to obtain a work permit. For example, certain entrepreneurs, intracompany 

transferees, and treaty traders are not required to obtain an HRDC confirmation. In addition, 

individuals such as news reporters, athletes, coaches, performing artists, foreign government 

officers, and military personnel are not required to obtain a work permit. Skilled workers who 

meet certain work experience requirements may be permitted to become permanent 

residents.201 Similar to the United States, the many requirements and exceptions are specified 

in law and regulation.202 

Students 

In some cases, persons wishing to enter Canada to attend an educational institution must apply 

for a study permit.203 To obtain a study permit, individuals must meet the same qualifications as 

those for a temporary resident permit, and must show that they have been accepted by an 

educational institution. Individuals also must demonstrate that they have enough money to pay 

for tuition, transportation, and living expenses for themselves and any accompanying family 

members while in Canada. Several conditions may be imposed on a student’s admission, 
36

including the type of studies permitted, the location and educational institution where the 

student may study, the time period of study, and permission to work.204

Japan 

In Japan, nonimmigrant entry is addressed in the Immigration Control and Refugee Recognition 

Act. In general, an individual wishing to enter Japan for a temporary period of time must have a 

visa and a passport. A visa may only be obtained at an overseas Japanese embassy or consulate. 

The visa does not guarantee entry (landing) in Japan; it is an indication that a person is eligible 

to apply to enter the country.205 

When the visitor arrives at an airport or seaport in Japan, he must apply to an immigration 

officer for landing permission. The immigration officer will check the validity of the person’s 

passport and visa and will inquire about the person’s reason for visiting Japan and length of stay. 

If the individual meets all of the requirements of the Immigration Control Act, he or she may be 

permitted entry to Japan. If admission is granted, the immigration officer will provide the visitor 

with a stamp of landing permission which states the date and port of entry and the immigration 

status of the visitor. The stamp of landing permission serves as the legal basis for the foreign 

national’s stay in Japan.206

Table 3.2. Selected Japanese Visa Categories 

Working General Specified 

 Professors 

 Artists 

 Religious activities 

 Journalists 

 Investors/business 

managers 

 Legal/accounting services 

 Medical services 

 Researchers 

 Instructors 

 Engineers 

 Specialists in the 

humanities/ international 

services 

 Intracompany transferees 

 Entertainers 

 Skilled laborers 

 Cultural 

activities 

 College students 

 Pre-college 

students 

 Trainees 

 Dependents 

Activities that are 

specifically designated by 

the Minister of Justice for 

certain activities, such as: 

 Personal employees 

of diplomats 

 Athletes in amateur 

sports 

 Foreign lawyers 

engaging in 

international 

arbitration affairs 

 University students 

engaged in internship 

activities 

Source: Ministry of Foreign Affairs of Japan, Consular and Migration Affairs Department, Foreign 

Nationals’ Affairs Division, “A Guide to Japanese Visas, Section IV. Types and Categories of Visas,” 

<http://www.mofa.go.jp/j_info/ visit/visa/04.html.> 

Japanese nonimmigrant visas fall into seven broad categories based on the purpose of the visit 

(see Table 3.2): diplomatic visas, official visas, working visas, temporary visitor visas, transit visas, 

general visas, and specified visas. As in the United States, many of these visa categories require 
37

that documentation pertinent to the reason for the visit be provided at the time of visa 

application.207

Like the United States, Japan also has visa exemption arrangements with other countries. 

Citizens of the United States and 58 other countries are not required to obtain a visa if they 

will be visiting Japan for short-term stays for such purposes as sightseeing and business trips, 

with the exception of paid activities. Visitors from the United States are not required to obtain 

a visa if they are planning to be in Japan for 90 days or less.208

The Philippines 

The Philippines specifies seven categories for nonimmigrant admissions: temporary visitor, 

transient, seaman, treaty trader/investor, foreign government official, student, and prearranged 

employment. Only nationals of countries that have reciprocity agreements with the Philippine 

government are eligible for nonimmigrant visas.209 A “foreign tourist” (or temporary visitor) is 

defined as “a person without distinction as to race, gender, language or religion, who is 

proceeding to the Philippines for a legitimate, nonimmigrant purpose such as sightseeing, sports, 

health, family reasons, training or study (excluding enrollment in schools for the purpose of 

obtaining a title or degree), religious pilgrimage, business, cultural and scientific purposes.”210 

Similar to U.S. nonimmigrant visas, a Philippine visa shows that a visa application has been 

properly examined and that the bearer may request permission to enter the Philippines at a 

port of entry. 

Nationals of certain countries who are traveling to the Philippines for business and tourism are 

permitted to enter the Philippines without visas for up to 21 days, provided that they have valid 

tickets for their return journey or to their next destination and that their passports are valid 

for at least 6 months beyond their intended visit. The Philippines have specified 145 countries 

(including the United States) whose nationals are allowed to enter the Philippines without a visa 

for stays of 21 days or less. Holders of Brazilian and Israeli passports are permitted to enter 

the Philippines without a visa for up to 59 days. Holders of Hong Kong Special Administrative 

passports, British National Overseas passports, Portuguese Passports issued in Macao, and 

Macao Special Administrative Region passports may enter the Philippines without a visa for 

stays up to 7 days. 211

The European Union 

The European Union (EU) currently is composed of 25 member nations (see Table 3.3). The 

origins of the EU date to the 1950s with the need for cooperation after World War II. The 

Treaty of Paris, signed in 1951, created the European Coal and Steel Community, comprised of 

France, Germany, Belgium, Italy, Luxembourg, and the Netherlands. This alliance was later 

transformed into the European Economic Community (EEC) by the Treaty of Rome in 1957. 

The purpose of the EEC was to develop a common market of goods and services.212 Over the 

years, the EEC experienced subsequent stages of “enlargement,” through which new member 

states were added. 
38

Table 3.3 European Union Members and Year of Entry 

EU Member Year of Entry EU Member Year of Entry 

France 1957 Finland 1995 

Germany 1957 Sweden 1995 

Belgium 1957 Cyprus 2004 

Italy 1957 Czech Republic 2004 

Luxembourg 1957 Estonia 2004 

The Netherlands 1957 Hungary 2004 

Denmark 1973 Latvia 2004 

Ireland 1973 Lithuania 2004 

United Kingdom 1973 Malta 2004 

Greece 1981 Poland 2004 

Portugal 1986 Slovakia 2004 

Spain 1986 Slovenia 2004 

Austria 1995 

The framework for free movement within the union was set in place in 1985 with the signing of 

the Schengen agreement. Signed in the village of Schengen, Luxembourg, by France, Germany, 

Belgium, Luxembourg, and the Netherlands, this agreement called for the gradual abolition of 

checks at internal borders.213 In June 1990, the Schengen Convention was signed, implementing 

the 1985 agreement. The Schengen Convention abolished the checks at internal borders of the 

signatory states and created a single external frontier, where checks for all the Schengen 

signatories were to be carried out in accordance with a common set of rules. This convention 

went into effect in 1995. By that time, Italy, Spain, Portugal, and Greece had joined the initial 

signatories to the Schengen agreement.214 

A new Treaty of European Union, also known as the Maastricht Treaty, was signed in 1992 and 

went into effect in 1993. This treaty changed the name of the EEC to the European Union and 

set out several objectives for “the process of creating an ever closer union among the peoples 

of Europe.” 215 The treaty also established the concept of EU citizenship and provided that 

“every citizen of the Union shall have the right to move and reside freely within the territory of 

the Member States...”216

These measures were incorporated into the Amsterdam Treaty on the European Union, which 

became effective on May 1, 1999. This treaty incorporated the Schengen agreements and other 

treaty provisions into the EU legal and institutional framework. 217 With the Treaty of 

Amsterdam, the Schengen requirements were fully accepted by 13 of the EU Member States. 

Ireland and the United Kingdom never signed the Schengen Convention and, through a 

protocol annexed to the Treaty of Amsterdam, have not ended border controls with other EU 

Member States. However, in the future they will participate in those aspects of Schengen 

relating to cooperation between police forces and the judiciary. 218 In addition, Iceland and 

Norway, though not members of the European Union, apply the Schengen provisions to their 

entry requirements. 219
39

The key rules adopted by nations participating in the Schengen agreements are: 

 Removal of checks on persons at common EU internal borders; 

 Common rules applying to people crossing external EU borders; 

 Separation at air terminals and, where possible, seaports of people traveling within the 

Schengen area from those arriving from countries outside the Schengen area; 

 Harmonization of the rules regarding conditions of entry and visas for short stays; 

 Coordination between governments on surveillance of borders; 

 Definition of the role of carriers in preventing and deterring illegal immigration; 

 Enhanced police cooperation; 

 Strengthening of judicial cooperation through a faster extradition system and transfer of 

the enforcement of criminal judgments; and 

 Creation of the Schengen Information System, which is a data system accessible by police 

forces and consular agents from the Schengen countries. 220

Nationals of third countries may enter and travel within the European Union provided they 

fulfill the entry conditions, which include: the possession of a valid travel document, and of a 

visa if required; and being able to demonstrate the purpose of the journey and sufficient means 

of subsistence for the period of stay and for the return.221 The EU has identified 45 countries 

and/or jurisdictions that are exempt from the visa requirement, including the United States, 

Australia, Guatemala, the Holy See, Mexico, and Japan.222

A visa, known as the Schengen visa, is issued to temporary visitors for tourism or business from 

countries that are not exempt from the visa requirement. The visa permits the holder to travel 

freely within the 13 participating countries of the EU (Austria, Belgium, Denmark, Finland, 

France, Germany, Greece, Italy, Luxembourg, the Netherlands, Portugal, Spain, and Sweden), as 

well as Iceland and Norway.223 Holders of Schengen visas are subject to immigration control 

upon first entry into a Schengen country and are therefore not guaranteed automatic entry.224 

In addition, participating countries may provide exceptions to the visa requirements for certain 

individuals, such as holders of diplomatic or official-duty passports, civilian air and sea crew, and 

persons providing assistance in the event of a disaster or accident.225

On May 1, 2004, the EU experienced its fifth enlargement with the incorporation of 10 new 

countries into the union: Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, 

Poland, Slovak Republic, and Slovenia. However, a transition agreement was established to 

phase in the entry of eight of these countries. Therefore, freedom of movement within the EU 

does not apply to all new members. According to the agreement, the EU cannot impose rules 

more restrictive than those applied before May 1, 2004 to nationals from new member states. 

Therefore, the transition agreement does not apply to Cyprus or Malta because of their size 

and relative economic strength.226 

Conclusion 

All countries have developed rules and procedures concerning the entry and terms of 

admission of foreign nationals. Like the United States, other nations require visitors to obtain 
40

visas and have specified different nonimmigrant categories of admission to accommodate the 

various reasons individuals have for visiting other countries. The categories of admission 

ascribe different privileges, such as work authorization or permission to bring dependents. 

As global ties and the ease of international travel bring more visitors and temporary entrants to 

our ports of entry, the United States, as well as other nations, must continue to balance the 

interests of national security and hospitality. The nonimmigrant classification system is one way 

of ensuring the orderly admission of temporary visitors. 

 
41

SECTION IV 

WHO ARE NONIMMIGRANTS? 

Introduction 

Each year millions of nonimmigrants are admitted to the United States. In 2004, there were an 

estimated 179 million nonimmigrant admissions to the United States. Of these, about 31 

million entered with nonimmigrant visas or through the Visa Waiver Program. An additional 

148 million Canadian and Mexican citizens not required to obtain nonimmigrant visas visited the 

United States in 2004.227

DHS records information on nonimmigrant entries as the number of legal admissions. Because 

many nonimmigrants enter and leave the United States more than once each year (such as 

students, diplomats, and frequent border crossers), the count of admissions exceeds the 

number of actual individuals arriving in the United States. Further, information concerning the 

nationality of nonimmigrants and the number of nonimmigrant admissions is obtained from the 

I-94 forms issued at U.S. ports of entry. 228 Therefore, information concerning persons not 

required to complete an I-94, such as certain Canadians and Mexicans entering with Border 

Crossing Cards, is not reflected in this section. Thus, the information presented in this section 

concerns the 31 million nonimmigrants who entered the United States with nonimmigrant visas 

or through the Visa Waiver Program (VWP) and completed I-94 forms. 

As shown in Table 4.1, the number of entries for most types of nonimmigrants has increased in 

the last 20 years. For example, the number of temporary visitors for business or pleasure (B-1 

and B-2 nonimmigrants, as well as VWP participants) has increased from 8.4 million entrants in 

1985 to 27.4 million entrants in 2004. Some of this increase is attributable to the introduction 

of the VWP as a pilot program in 1986. 

Similarly, the number of J-1 exchange visitors entering the country almost tripled between 1985 

and 2004, while the number of L-1 intracompany transferees increased almost five times. 

Other categories that have been more recently created, have shown significant increases since 

they were first introduced. For example, after its introduction in 1990, the O-1 category was 

used as the means of admission by almost 6,000 nonimmigrants in 1995. By 2004, the number 

of entrants in that category was over 27,000. 

By far, the greatest number of admissions of nonimmigrants is within the temporary visitor 

category (B-1 and B-2). Academic students in F-1 status represent the next largest group of 

nonimmigrants, with over 600,000 entries in 2004. The next highest number of nonimmigrant 

admissions were by H-1B temporary workers. In 2004, 386,821 H-1B nonimmigrants were 

admitted to the United States. 
42

Table 4.1. Nonimmigrant Entries, 1985-2004 

Category 1985 1990 1995 2000 2004 

Foreign government officials and families 

(A-1, A-2, A-3) 

 90,190 96,689 103,606 138,230 152,649

Temporary visitors (B1, B2, Visa Waiver) 8,405,409 16,079,666 20,886,872 30,511,125 27,396,031

Transit aliens (C-1, C-2, C-3, C-4) 236,537 306,156 320,333 437,671 338,175

Treaty trader, spouse and children (E-1) 65,406 78,658 53,557 51,241 47,083

Treaty investor, spouse and children (E-2) 31,083 68,878 78,220 116,973 135,851

Academic students (F-1) 251,234 319,467 364,220 659,081 613,221

Vocational students (M-1) 5,835 6,797 7,635 10,288 6,989

Spouses and children of F1 and M1 (F-2, M-2) 28,427 28,943 31,260 40,872 36,163

Representatives (and families) to international 

organizations (G-1 through G-5) 

 57,203 61,449 71,982 97,555 109,355

Specialty occupations, DOD workers, fashion 

models (H-1B) 47,322 100,446 117,574 355,605 386,821

Nurses (H-1A, H-1C) N/A N/A 6,512 565 7,865

Temporary agricultural worker (H-2A) N/A 18,219 11,394 33,292 22,141

Temporary worker: skilled and unskilled (H-2B) N/A 17,754 14,193 51,462 86,958

Trainee (H-3) 3,003 3,168 2,787 3,208 2,226

Spouse or child of H-1, H-2, H-3 (H-4) 12,632 28,687 43,247 120,212 130,847

Representatives of foreign media (and families) 

(I-1) 

 16,753 20,252 24,220 33,918 37,108

Exchange visitors (J-1) 110,942 174,247 201,095 304,225 321,975

Spouses and children of J-1 (J-2) 30,271 40,397 39,269 47,518 38,802

Fiancées of U.S. citizens (K-1) 6,975 6,545 7,793 20,558 28,546

Children of fiancées of U.S. citizens (K-2) 832 673 768 3,113 4,515

Intracompany transferee (L-1) 65,349 63,180 112,124 294,658 314,484

Spouses and children of intracompany 

transferees (L-2) 

 41,533 39,375 61,621 132,105 142,099

NATO officials and families (N-1 through N-7) 8,323 8,333 8,579 14,133 14,813

Parents or children of international organization 

special immigrants (N-8 and N-9) 

N/A N/A 8 47 54

Extraordinary ability in Sciences, Arts, 

Education, Business, or Athletics (O-1) 

N/A N/A 5,974 21,746 27,127

Aliens accompanying O-1 (O-2) N/A N/A 1,813 3,627 6,332

Spouse or child of O-1 or O-2 (O-3) N/A N/A 751 3,546 3,719

Individual or team athletes, or entertainment 

groups (and support personnel) (P-1) 

N/A N/A 22,397 40,920 40,466

Artists and entertainers in reciprocal exchange 

programs (P-2) 

N/A N/A 660 4,227 3,810

Artists and entertainers in culturally unique 

programs (and their support personnel) (P-3) 

N/A N/A 5,315 11,230 10,038

International cultural exchange visitors (Q-1) N/A N/A 1,399 2,447 2,113

Irish Peace Process Cultural and Training 

Program (Q-2) 

N/A N/A N/A 279 368

Religious workers (R-1) N/A N/A 6,742 15,342 21,571

Spouse or child of R-1 (R-2) N/A N/A 1,790 3,930 6,443

Professionals, NAFTA (TN) N/A N/A 23,904 91,279 66,207

Spouses and children of TN (TD) N/A N/A 7,202 22,181 12,595

Source: DHS, Office of Immigration Statistics, 2002 Yearbook of Immigration Statistics, October 2003, table 26; 

DHS, Office of Immigration Statistics, “Temporary Admissions (Nonimmigrants),” accessed at <http://uscis.gov/ 

graphics/shared/statistics/yearbook/YrBk04TA.htm.> 
43

Nationality of Nonimmigrants by Category of Admission 

Over one-third of all nonimmigrants arrive from European countries (see Table 4.2). In 2004, 

Europeans represented almost 12.5 million nonimmigrant entries. Nonimmigrants from Asia 

numbered 7.8 million. 

Table 4.2. Nonimmigrant Entries by Region, 2004 

Region All Nonimmigrants Visitors for Pleasure 

All Countries 30,781,330 22,802,907 

Europe 12,487,585 9,582,957 

Asia 7,828,316 5,512,730 

Canada/Mexico 4,692,958 3,784,476 

South America 2,167,668 1,378,692 

Caribbean 1,210,672 915,304 

Oceania 936,471 668,952 

Central America 833,058 577,257 

Africa 384,477 204,179 

Source: U.S. Department of Homeland Security, Office of Immigration 

Statistics, “Temporary Admissions (Nonimmigrants),” accessed at 

<http://uscis.gov/graphics/shared/statistics/yearbook/YrBk04TA.htm.> 

 

The United Kingdom, Mexico, Japan, Germany, and France were the countries of origin for 

over half of the nonimmigrants visiting the United States in 2004. Almost 5 million 

nonimmigrants (16 percent of all nonimmigrants) were citizens of the United Kingdom. Both 

Mexico and Germany were home to approximately 14 percent of all nonimmigrants in 2004. 

Other top sending countries for nonimmigrants included Japan and France.229

Another way of understanding where nonimmigrants come from is to compare their countries 

of citizenship with the types of nonimmigrant visas they used to enter the United States, as 

shown in Table 4.3. In 2004, the majority of H-1B visa entrants were from Europe and Asia: 

29 percent were from Europe, while more than 39 percent were from Asia. Europe and Asia 

together also provided almost two-fifths of all J-1 exchange visitors. 

Eighty percent of temporary agricultural workers (H-2A) entered the United States from 

Mexico and Canada, with Mexico providing 17,704 such workers. Similarly, 68 percent of H-2B 

temporary workers also came from our neighboring countries. Mexico again provided the 

majority of these workers – 59,252 H-1B workers were Mexican citizens, compared to 9,638 

Canadian citizens. 
44

Table 4.3. Nonimmigrant Entries by Country of Citizenship 

and Selected Class of Admission, 2004: Temporary 

Workers, and Exchange Visitors

Region 

H-1A/H-1C 

Nurses 

H-1B 

Specialty 

Occupations 

H-2A 

Temporary 

Agricultural 

Workers 

H-2B 

Non-agric. 

Temporary 

Workers 

J-1 

Exchange 

Visitors 

All countries 7,865 386,821 22,141 86,958 321,975

Europe 0.6% 29.1% 0.9% 5.0% 58.5%

Asia 1.3% 39.5% 1.1% 2.1% 19.6%

Africa 1.7% 2.0% 3.1% 2.4% 3.0%

Oceania 0.6% 2.5% 0.7% 2.0% 2.9%

Canada/Mexico 91.3% 10.8% 80.0% 68.1% 4.4%

Caribbean 1.2% 1.4% 11.9% 11.1% 1.0%

Central America 0.5% 1.0% 0.4% 5.4% 0.7%

South America 2.5% 13.3% 1.5% 3.2% 8.9%

 

Source: U.S. Department of Homeland Security, Office of Immigration Statistics, “Temporary Admissions 

(Nonimmigrants),” accessed at <http://uscis.gov/graphics/shared/statistics/yearbook/YrBk04TA.htm.> 

Columns do not add to 100 percent because “unknown” country of citizenship is not included in the table. 

As these summary statistics show, nonimmigrants come to the United States from all over the 

world and have many legitimate reasons for being here. Because of the complexity of our 

immigration system, the many nonimmigrant categories have different requirements and 

responsibilities concerning entry, length of stay, ability to adjust status, and other important 

activities. Section VII provides an overview of many of these procedures, and Section VIII 

describes some of the issues that can affect nonimmigrants while they are in the United States. 

Border Crossers 

As noted above, each year, millions of Canadian and Mexican nationals enter the United States 

for brief periods of time and are not counted as nonimmigrants. This is because most citizens 

of Canada and certain Mexican citizens do not need to obtain a nonimmigrant visa nor an 

I-94 to enter the United States. Therefore, although they are inspected at the border, their 

admission is not included in nonimmigrant counts. However, DHS estimates that 148 million 

such visitors entered the United States in 2004.230

Mexican nationals must obtain a Border Crossing Card to facilitate entry and exit to and from 

the United States on a frequent basis in the immediate border zone. Mexican citizens may 

apply for BCCs if they provide the required information concerning residence, employment in 

their home country, and reason for frequent border crossing. (More information concerning 

entry requirements for Canadian and Mexican nationals is found in Section VII.) 
45

Length of Stay 

In a 2005 study, the DHS Office of Immigration Statistics estimated the length of time 

nonimmigrants remained in the United States during each visit. Because of data limitations, the 

study was restricted to nonimmigrants who departed the United States in 2003. Thus, length 

of each visit was determined by subtracting the date of departure in 2003 from the date of 

arrival using the arrival and departure information provided on the nonimmigrants’ I-94 forms. 

The estimates of length of stay are based on 22.1 million nonimmigrant departures that were 

matched to arrival data.231 Note, however, that these estimates are based on individual visits to 

the United States, and, therefore, do not capture the extent to which nonimmigrants make 

multiple entries. Thus, these estimates may significantly underestimate the actual time spent in 

the United States for many nonimmigrants, particularly those with visas providing for long-term 

stays.232

The study found that the average stay for all nonimmigrants who departed the United States in 

2004 was 34 days. Only 1.4 percent of the nonimmigrants departing had been in the United 

States for more than a year. Of course, the length of visit varied greatly by the purpose of the 

visit and the type of nonimmigrant visa used for entry. Temporary visitors for business (B-1 

nonimmigrants) stayed in the United States for an average of 15 days. Comparatively, 

temporary visitors for pleasure (B-2 nonimmigrants) spent 48 days in the United States.233

Academic students (F-1) remain in the United States for longer periods than persons in other 

nonimmigrant categories. Their average length of stay was 314 days – or approximately 10 

months. The average time their spouses and children (F-2) spent in the United States was 260 

days. Vocational students (M-1), however, spent only an average of 147 days in the United 

States (approximately 5 months). Their spouses and children (M-2) stayed, on average, for 85 

days.234

Temporary workers exhibit a different pattern. Their stays tend to be shorter in duration. For 

example, workers in specialty occupations (H-1B) stayed in the United States for an average of 

173 days. Temporary agricultural workers (H-2A) were here for 154 days. Comparatively, 

representatives of foreign media (I nonimmigrants) were in the United States for an average of 

49 days. Similarly, international recognized athletes and entertainers (P-1) visited for 41 days. 235 

However, as mentioned above, these data do not take into account multiple visits by the same 

nonimmigrant.
46
47

SECTION V 

SPECIAL FOCUS: PERMISSION TO WORK

Introduction 

An increasingly global workplace and international business ties have fueled the need for foreign 

workers in the United States. Because many of these individuals do not intend to remain here 

permanently, several nonimmigrant categories are designed to accommodate specific types of 

temporary work. In addition, to protect the jobs and wages of U.S. workers, there are varying 

requirements and restrictions for the different types of nonimmigrant worker categories. 

Companies seek to bring employees to the United States for a variety of reasons. For example, 

businesses with U.S. branches or affiliates may want their managers and professional staff to 

gain experience in the United States, sports franchises seek top athletes from around the world, 

and U.S. farmers may need additional workers during peak harvest times. In other industries, 

there may be a lack of U.S. workers willing to fill positions, or U.S. workers with the needed 

skills may not be available. In other instances, multinational companies, foreign governments, 

and international organizations send nationals of their countries to fill positions in the United 

States. 

For those workers who do not intend to reside in the United States permanently, there are 

several nonimmigrant categories that permit them to enter the country with authorization to 

work. This section briefly discusses the immigration laws relevant to foreign workers and 

students and describes the differences among the nonimmigrant categories with regard to 

permission to work and/or study while in the United States. 

Immigration Law and Foreign Workers 

While the United States has always welcomed newcomers and visitors, it also seeks to protect 

its residents. These safeguards have included the passage of legislation concerning foreign 

workers to protect U.S. job holders. From the 1880s to the present, the requirements and 

regulations concerning temporary workers have adapted to the economic needs of the nation. 

Alien Contract Labor 

One of the earliest laws regulating the flow of foreign workers was the Act of February 26, 

1885,236 known as the Contract Labor Law. At the time this law was passed, employers had 

been recruiting foreign workers through advertisements asserting that hundreds of workers 

were needed in certain industries, such as in the coal fields, when no such vacancies actually 

existed. This practice was intended to create an oversupply of labor so that U.S. workers 

would be forced to work at reduced wages.237 Passed in response to the concerns of labor 

unions about this practice, the Contract Labor Law made it unlawful to import aliens into the 

United States under contract for the performance of labor. The law provided exceptions for 

the temporary entry of artists, lecturers, servants, and skilled aliens working in industries not 
48

yet established in the United States.238 The Contract Labor Law remained in effect until the 

INA of 1952 created the H nonimmigrant category for temporary workers.239

War Time Labor Shortages 

During World War II, however, the United States faced labor shortages as U.S. workers were 

needed in the armed forces. To facilitate the admission of temporary workers from other 

nations, in 1943 Congress issued a joint resolution that exempted alien workers from the 

contract labor laws. 240 The law authorized the entry of agricultural workers only for the 

duration of the war, and only for as long as they were needed by U.S. employers. The law 

specified that the workers must be “native-born residents” of a Western Hemisphere country 

and exempted them from certain entry requirements: they did not need to pay a head tax, they 

were not required to pass a literacy test, and they were not required to be fingerprinted and 

registered like other visitors under the Alien Registration Act of 1940. Agricultural workers 

also had to possess an alien laborer’s identification card, issued by the War Food 

Administrator.241 

The recruitment of foreign workers continued in other industries as authorized under Title II of 

Public Law No. 229 (February 14, 1944), which permitted the employment of foreign workers 

in “industries and services essential to the preservation, marketing or distribution of agricultural 

products, including the timber and lumber industries,” and under Title VII of Public Law No. 

373 (June 29, 1944), which permitted foreign nationals to work in “industries and services 

essential to the war effort.”242 Workers from Mexico, British Honduras, Barbados, Jamaica, and 

other Western Hemisphere Countries continued to be welcomed in the United States during 

this period of worker shortages due to World War II. 

In addition, the Attorney General authorized the temporary admission of agricultural workers 

under the Ninth Proviso of Section 3 of the Immigration Act of 1917, and later legislation 

provided for the temporary admission of seasonal farm labor in what would become known as 

the Bracero Program.243 Between 1942 and 1964, the United States welcomed more than 4.5 

million nonimmigrant workers from Mexico known as braceros (Spanish for the strong-armed). 

The Bracero Program was developed in response to the labor shortages during World War II. 

The program was governed and modified by several agreements between the United States and 

Mexico, beginning with the Mexican Farm Labor Program Agreement signed in 1942. The 

agreement guaranteed a minimum wage of 30 cents an hour and humane treatment (including 

food and shelter) for Mexican workers in the United States.244 The agreement also required 

that the workers be employed by the U.S. Government, not by the individual farm owners.245 

The original program was terminated on December 31, 1947. Agricultural employers, however, 

requested that the program continue. Thus, in February 1948, a new agreement was reached 

between the Department of State and the Mexican government. The new agreement did not 

require a minimum wage, nor did it require the farm workers to be employed directly by the 

Federal Government. Instead, the farm owners entered into contracts with the workers 

themselves and also were responsible for the recruitment and transportation of the Mexican 

workers.246
49

During the Korean War, the United States again faced a labor shortage. In 1951, Public 

Law 78247 was passed granting authorization for the Federal Government to enter into another 

bilateral agreement with Mexico on migrant labor.248 A 1951 agreement between Mexico and 

the United States once again required the U.S. Government to act as employer to the migrant 

workers. Originally set to expire in 1954, the program was extended several times through its 

termination at the end of 1963.249

The Temporary Worker Nonimmigrant Category 

Following the termination of the Bracero Program, the only mechanism for the temporary 

employment of foreign agricultural workers was the H-2 nonimmigrant visa. The Immigration 

and Nationality Act of 1952 created the H nonimmigrant category for temporary workers and 

prescribed a petition procedure for businesses to obtain temporary workers from other 

countries. Section 214(c) of the law stated: 

The question of importing any alien as a nonimmigrant under section 101(a)(15)(H) in any 

specific case or specific cases shall be determined by the Attorney General, after 

consultation with appropriate agencies of the Government, upon petition of the importing 

employer. Such petition shall be made and approved before the visa is granted. The 

petition shall be in such form and contain such information as the Attorney General shall 

prescribe. The approval of such a petition shall not, of itself, be construed as establishing 

that the alien is a nonimmigrant.250

The law also specified that aliens coming temporarily to the United States as H-2 

nonimmigrants to perform temporary services or labor would be admitted only if “unemployed 

persons capable of performing such service or labor cannot be found in this country.”251 

The Immigration Reform and Control Act of 1986 amended the H-2 program, creating two 

separate categories: agricultural workers (H-2A) and other temporary workers (H-2B).252 The 

law also required a labor certification process for these temporary workers.253 (See below for 

more information on the labor certification process.) 

Nursing Shortages in the 1980s 

The Immigration Nursing Relief Act (INRA) of 1989254 required a labor attestation program for 

nonimmigrant nurses, in addition to labor certification. This law was passed in response to a 

national shortage of registered nurses. It provided for certain H-1 nonimmigrant nurses to 

adjust to permanent resident status and created a 5-year pilot program for the admission of 

nurses as temporary workers. Thus, the new nonimmigrant category, H-1C, was established 

for foreign registered nurses. To hire foreign nurses, hospitals and health care facilities were 

required to file an attestation with DOL to ensure that they met certain obligations to retain 

and recruit nurses who are U.S. citizens or permanent residents.255 According to the legislative 

history of the Act, the attestation was to address several criteria: 

First, the facility must attest that substantial disruption would occur without the services of 

a foreign nurse, or nurses ... Second, the employment of a foreign nurse cannot adversely 

affect wages and working conditions of nurses similarly employed. Third, the facility must 
50

pay the prevailing wage at the facility. ... Fourth, the facility must demonstrate it is...taking 

significant steps to recruit and retain U.S. or immigrant nurses ... Fifth, the facility must 

attest that there is not a strike or lockout in the course of a labor dispute, and the 

employment is not intended to influence an election for a bargaining representative. Sixth, 

the facility is required to provide notice of the filing of an attestation to various labor 

representatives or to post a notice in a conspicuous location. ...”256

The law also established an advisory committee which was charged with measuring the impact 

of the INRA on the nursing shortage and to advise on whether the H-1A pilot program should 

be extended.257 The Committee report, issued in 1995, found that nurses admitted under the 

pilot program were few in number and therefore had no significant impact on the wages and 

working conditions of U.S. workers.258 Several organizations, including the American Nurses 

Association, submitted a dissenting opinion to the report. After several hearings were held, 

new legislation was finally passed in 1999 to create a temporary worker program for specific 

geographic locations. The Nursing Relief for Disadvantaged Areas Act of 1999 established the 

H-1C nonimmigrant category, with requirements similar to the H-1A category which was 

discontinued in 1997. 259 The legislation had a sunset date of 4 years after the final regulations 

were issued, which was September 20, 2004.260

The Immigration Act of 1990 

As discussed in Section II of this report, the Immigration Act of 1990 primarily addressed legal 

immigration, but it also contained several provisions relating to nonimmigrants, including 

changes to the H temporary worker nonimmigrant category and the creation of the O, P, Q, 

and R nonimmigrant categories. The 1990 Act also required for the first time a labor 

attestation for temporary workers other than H-1A nonimmigrant nurses. 

In response to concerns from labor unions and other organizations, Congress included labor 

attestation requirements for temporary workers in the H-1B nonimmigrant category in the 

Immigration Act of 1990. The law specified that employers must confirm to the Department of 

Labor that they will pay at least the local prevailing wage and offer prevailing working conditions 

to the prospective H-1B nonimmigrant and all U.S. workers in the same job.261 

The 1990 Act also provided a mechanism for workers to challenge the attestation of an 

employer with respect to recruitment and wages. According to the legislative history of the 

1990 Act: 

The current labor certification process lacks any meaningful access for an affected person 

to challenge an employer’s petition with respect to recruitment or wages. Thus, U.S. 

workers must rely totally on the Department of Labor’s determination that an adequate 

search of the domestic market has been made. However, Department of Labor 

acquiescence to state procedures has resulted in little uniformity of administration 

procedures; recruitment is not standardized as much as it could be due to lack of 

definitions; prevailing wage determinations many times are made on an ad hoc basis; 

schedules of categories for which there is no test of the market are established and 

removed without labor market data or Congressional and public input. All of these have 
51

combined to create a lack of faith in the system and a strain on the relationship between 

business and labor.262

The Immigration Act of 1990 also placed an annual cap on the number of temporary workers 

approved for H-1B and H-2B visas. 

American Competitiveness and Workforce Improvement 

The economic boom of the 1990s resulted in low unemployment in the United States and a 

shortage of skilled workers, particularly in the information technology and computer 

industries.263 As a result, the high-tech industry lobbied for an increase in the number of foreign 

workers permitted to come to the United States. However, this was met with concern from 

labor unions and other parties that an increase in foreign workers could have a negative impact 

on U.S. workers. 264 Eventually, a compromise was made, resulting in the signing of the 

American Competitiveness and Workforce Improvement Act (ACWIA) on October 21, 

1998.265

ACWIA attempted to strike a balance between the interests of the industries and the labor 

unions. As a result, the law allowed a temporary increase in the number of H-1B visas, while at 

the same time setting aside additional funds for U. S. worker education and training (paid for by 

increased filing fees for the H-1B program).266 The cap on the number of H-1B visas was raised 

to 115,000 for 1999 and 2000, and to 107,500 in 2001, before reverting to the 65,000 cap 

specified by the Immigration Act of 1990 for fiscal year 2002. 

ACWIA increased fines for willful violators of the H-1B program and expanded the 

investigatory authority of the Department of Labor. The law also requires employers to offer 

the same benefits to temporary foreign workers as it does to other employees, to eliminate the 

financial incentive to hire foreign workers to save costs on employee benefits.267 Further, the 

law requires new attestations by employers that (1) they have not, or will not displace a U.S. 

worker within the 90-day periods before and after the filing of the H-1B petition; (2) they will 

not place the H-1B beneficiary with another employer, if the beneficiary works at one or more 

sites of another employer and there appears to be an employment relationship between the 

other employer and the H-1B employee; and (3) they have taken the appropriate steps to 

recruit U.S. workers for the position being filled by the H-1B employee.268

Despite the changes put into place by ACWIA, employers continued to experience worker 

shortages, as well as agency delays in approvals for H-1B workers. Congress sought to provide 

relief with the passage of the American Competitiveness in the Twenty-First Century Act of 

2000.269 The law again temporarily increased the number of H-1B visas (to 195,000 for 2001 

through 2004), and, for H-1B petitions filed before September 1, 2000, exempted 

nonimmigrants employed by institutions of higher education or certain research organizations 

from the numerical limit, making more H-1B visas available to businesses.270 

The law also addresses the issue of “H-1B portability” – the ability of H-1B nonimmigrants to 

move from one employer to another. The law permits an H-1B employee to change employers 

at the same time the new employer files the petition for the H-1B workers, so that the 
52

employee does not have to wait for the application to be approved before he or she starts 

working. This provision was included to address concerns raised about the potential for 

exploitation of H-1B visa holders as a result of a specific employer’s control over the 

employee’s legal status.271 

Both ACWIA and the Twenty-First Century Act of 2000 contained provisions relating to the 

H-1B Technical Skills Training Grant Program, providing funding for the program through 

September 30, 2003. Grants were awarded to projects that provided training for both 

employed and unemployed American workers to acquire the technical capabilities required for 

high skill occupations. Eighty percent of the grants were required to be awarded to projects 

that trained workers in technology, including information technology and biotechnology.272

Visa Reform in 2005

The Omnibus Appropriations Act for Fiscal Year 2005 273 contained specific provisions 

concerning H-1B and L nonimmigrant visas. The sections of the law relating to H-1B visas, 

referred to as the H-1B Visa Reform Act, became effective March 9, 2005 although USCIS had 

not published guidance on filing petitions under the new provisions as of that date and 

requested that employers not file H-1B petitions under the new provisions until regulations 

were published.274 

The law raised the fee imposed by the American Competitiveness and Workforce 

Improvement Act of 1998 from $1,000 to $1,500; employers with no more than 25 employees 

may submit a reduced fee of $750. In addition, the Act created a Fraud Prevention and 

Detection fee of $500, required of all petitioners for H-1B and L visas.275 The Act also provides 

new exemptions from the annual H-1B cap of 65,000, including:276

 The first 20,000 H-1B beneficiaries who have earned a master’s 

degree or higher from a U.S. institution of higher education are not 

subjected to the annual cap. 

 Nonimmigrants currently in the United States as J-1 nonimmigrants 

who receive a waiver of the 2-year residency requirement also are 

exempt from the H-1B cap. 

Also part of the Omnibus Appropriations Act, the L-1 Visa Reform Act of 2004 made changes 

affecting the L nonimmigrant category. The law requires all L-1 temporary workers to have 

worked for a period of no less than 1 year outside the United States for the employer through 

whom the worker is deriving L-1 status. Previously, such workers were required only to have 

worked 6 months for the employer.277

The L-1 Visa Reform Act also addresses the issue of “outsourcing.” The law prohibits L-1 

temporary workers (those entering the United States to perform services that involve 

specialized knowledge) from working at worksites other than those of their petitioning 

employers if the work will be supervised by a different employer or if the offsite arrangement is 

essentially to provide labor for hire, rather than service related to the specialized knowledge of 

the petitioning employer. This provision became effective June 6, 2005.278
53

Working in the United States 

Some nonimmigrants have employment authorization by virtue of their nonimmigrant 

classification (such as those with temporary worker status, like H-1B visa holders). In other 

cases, USCIS must make a case-by-case determination of whether an alien can work while in 

the United States. While some nonimmigrants may apply for employment authorization, others 

are not permitted to work while in the United States. (See Table 5.1. A detailed listing of who 

can and cannot work while in the United States on a nonimmigrant visa appears in Appendix B.) 

Table 5.1. Work Authorization, by Nonimmigrant Category 

Authorized to Work 

Incident to Status 

(Must Apply for EAD)

Authorized to Work for a 

Specific Employer 

Incident to Status 

Must Apply 

to USCIS for 

Permission to Work

Not 

Authorized to 

Work 

K-1 

K-2 

K-3 

K-4 

N-8 

N-9 

V-1 

V-2 

V-3 

T-1 

U-1 

A-1 

A-2 

A-3 

C-2 

C-3 

D-1 

D-2 

E-1 

E-2 

E-3 

G-1 

G-2 

G-3 

G-4 

G-5 

H-1B1 

H-1B 

H-1C 

H-2A 

H-2B 

H-3 

I 

J-1 

L-1 

O-1 

O-2 

P-1 

P-2 

P-3 

P-4 

Q-1 

Q-2 

R-1 

NATO-1 

NATO-2 

NATO-3 

NATO-4 

NATO-5 

NATO-6 

NATO-7

Alien spouse or 

unmarried dependent 

child of nonimmigrants in 

the following categories: 

A-1, A-2, E-1, E-2, G-1, 

G-3, G-4, J-1, NATO 1-7 

F-1 and M-1, under 

certain conditions 

L-2 

O-3 

S-5, S-6, S-7 

T-2, T-3, T-4 

U-2, U-3, U-4

B-1 

B-2 

BE 

WB 

WT 

GB 

GT 

F-2 

I (dependents) 

M-2 

M-3 

Q-3 

R-2 

TD 

Nonimmigrants Authorized to Work Incident to Status

Some nonimmigrant categories include individuals who, notwithstanding their nonimmigrant 

classification, are likely to remain permanently in the United States. In particular, nonimmigrant 

categories that are designed to ease family separations caused by visa wait times are based on 

the expectation that the individuals will apply for adjustment of status to permanent resident 

once in the United States. Thus, persons in these categories are permitted to work once they 

have applied for, and been issued , an Employment Authorization Document (EAD) from USCIS. 

Nonimmigrants Authorized to Work for a Specific Employer Incident to Status 

There are several nonimmigrant categories for individuals in specific jobs, such as foreign 

government officials and persons who work for non-U.S. airlines. These categories necessarily 

permit the individual to work while in the United States for the employer through which they 

derive their nonimmigrant status. Additional nonimmigrant categories were created specifically 
54

to allow the admission of foreign workers to work for U.S. employers. In general, these 

nonimmigrants also are not permitted to accept employment for an employer other than the 

one through which the nonimmigrant status was obtained. 

Nonimmigrants Requiring Permission to Work 

Individuals in several nonimmigrant categories may not work unless granted permission by 

USCIS, as follows: 

 The alien spouses and unmarried, dependent children of nonimmigrants in 

the following categories must apply for work authorization: A-1, A-2, E-1, E-2, 

E-3, G-1, G-3, G-4, L-1, and O-3.279

 Work authorization for NATO-1 through NATO-6 nonimmigrants and 

dependents is governed by formal bilateral agreements, and other informal 

arrangements certified by the Office of the Secretary of Defense, Foreign 

Military Rights Affairs, and must be approved by NATO. If approved for 

employment by the Secretary of Defense, the alien must submit an 

application for work authorization to USCIS.280 

 F-1 academic students who (1) are seeking employment for the purposes of 

practical training, (2) have been offered employment under the sponsorship 

of an international organization, or (3) are seeking employment because of 

severe economic hardship, when certain conditions are met.281

 M-1 students may not accept employment but are permitted to apply for 

practical training after they complete their studies. If approved, they will be 

allowed 1 month of practical training for every 4 months of study they 

completed. M-1 students are limited to 6 months total practical training 

time.282 

 Dependents of J-1 visa holders may apply for USCIS authorization to accept 

employment in the United States, if they can demonstrate that they will have 

sufficient financial resources to cover their expenses while in the United 

States and that their employment is not required to support the principal J-1 

nonimmigrant.283

 Under the Violent Crime Control and Law Enforcement Act of 1994, certain 

alien witnesses and informants may be permitted to enter the United States 

temporarily as S-5 or S-6 nonimmigrants. If it is considered to be 

appropriate, the spouse, married and unmarried sons and daughters, and 

parents of an alien S-5 and S-6 nonimmigrants may be granted derivative S 

status, S-7, when accompanying or following to join the alien witness or 

informant. These aliens are permitted to work while in they are in the 

United States but must first apply to USCIS for employment authorization.284 
55

 An alien granted T-2, T-3, or T-4 nonimmigrant status may apply for 

employment authorization.285

Nonimmigrants Not Authorized to Work 

Other nonimmigrant categories are not eligible for work authorization: 

 In general, persons entering the United States with a B nonimmigrant visa 

may not accept employment while in the United States. Persons entering 

temporarily for business must be conducting business for a foreign company 

and must maintain a home in a foreign country to which they intend to 

return. However, B nonimmigrants are permitted to accept honorarium 

payments and associated incidental expenses for “usual academic activity.”286 

 Temporary visitors in the BE, WB, WT, GB, and GT categories are not 

permitted to work while in the United States. 

 Accompanying spouses and children of F-1 students, classified as F-2 

nonimmigrants, may not apply for work authorization.287

 M-1 students, their spouses, and their children may not accept employment; 

however, M-1 students may apply for practical training after they complete 

their studies.288 

 Spouses and children of I media visa holders are not permitted to work in 

the United States, though they may study in the United States without a 

student visa.289

 Spouses and dependents classified as H-4, Q-3, R-2, and TD nonimmigrants 

may not accept employment.290

Temporary Workers and Intracompany Transferees 

The admission of nonimmigrants for temporary work has often been a contentious issue in the 

United States. Businesses cite the need for more workers, while labor unions and employee 

groups express concerns that U.S. workers may be adversely affected by the “importation” of 

foreign labor. The nonimmigrant categories for temporary workers and intracompany 

transferees, at one point the same category, are described in this section. Further discussion of 

the issues surrounding temporary workers is in Section VII. 

H Nonimmigrants 

The H nonimmigrant category was created by the Immigration and Nationality Act of 1952. 

Prior to that time, the provision of law regarding the admittance of temporary visitors for 
56

business was interpreted to exclude person seeking to enter the United States temporarily to 

engage in employment. The Act of 1952 sought to remedy this by establishing a separate 

nonimmigrant class for temporary workers. The Act authorized two types of workers: aliens 

“of distinguished merit and ability ... coming to the United States to perform temporary services 

of an exceptional nature requiring such merit and ability” (H-1), and workers coming to fill 

temporary jobs (H-2), provided that there are no U.S. workers available to fill the positions.291 In 

1970, category H-4 was added to permit the entry of the spouses and children of H-1, H-2, or 

H-3 nonimmigrants accompanying or coming to join the principal nonimmigrant.292

Requirements and provisions concerning H-1B nonimmigrants have changed over the years. 293 

Today the H-1B category applies to persons coming to the United States temporarily to perform 

services in a specialty occupation or as a fashion model of distinguished merit and ability.294 The 

Immigration Act of 1990 imposed a numerical limitation for H-1B (and H-2B) nonimmigrants and 

provided for cooperative research, development and co-production projects for H-1B aliens. In 

1998, the American Workforce Competitiveness Act temporarily increased the numerical 

limitation on H-1B nonimmigrants and attempted to protect U.S. specialty occupation workers 

from unfair foreign competition by placing restrictions on “H-1B dependent employers” – those 

employers with an unusually high ratio of H-1B employees. The American Workforce 

Competitiveness in the Twenty-first Century Act of 2000 further amended the temporary 

worker provisions to raise the annual limit on H-1B nonimmigrants and granted permission to H1B workers to change jobs while in the United States in certain instances.295 

Currently there are three categories under H-1B:296

 Specialty Occupations Applies to aliens coming temporarily to perform services in a 

specialty occupation which requires the theoretical and practical application of highly 

specialized knowledge requiring completion of a specific course of higher education. 

Examples are architecture, engineering, mathematics, physical sciences, social sciences, 

medicine, and theology. 

 Research and Development Projects Applies to aliens coming temporarily to perform 

services of an exceptional nature relating to a cooperative research and development 

project administered by the Department of Defense. 

 Fashion Models Applies to fashion models who are nationally or internationally 

recognized for achievements to work in a position requiring someone of distinguished 

merit and ability. Examples of such recognition include recognition in major 

newspapers, trade journals, and magazines; work for employers with a distinguished 

reputation; receipt of recognition for significant achievements from organizations, 

critics, fashion houses, modeling agencies, or other recognized experts in the field; and 

receipt of a high salary or other substantial remuneration for their work. 

The H-1C category applies to registered nurses hired under the Nursing Relief for 

Disadvantaged Areas Act of 1999. This law was enacted as a short-term solution for nursing 

shortages in a limited number of medically underserved areas. The program allows for the 

temporary admission of 500 nurses annually. Petitioning hospitals must be in shortage areas 
57

defined by the Department of Health and Human Services and must have at least 190 acute 

care beds and specified percentages of Medicare and Medicaid patients. The total stay for these 

nonimmigrant nurses is 3 years. This program replaced a pilot program enacted under the 

Nursing Relief Act of 1989, which classified registered nurses in that program as H-1A 

nonimmigrants.297

Agricultural Workers 

Temporary or seasonal agricultural workers are classified as H-2A nonimmigrants. The INA of 

1952 authorized a program for the admission of workers for temporary jobs, provided U.S. 

workers could not be found to fill those jobs. The Immigration Reform and Control Act of 

1986 amended the H-2 program by separating it into two parts – temporary agricultural 

workers and temporary workers, skilled and unskilled. H-2A nonimmigrant agricultural 

workers are permitted entry for up to 1 year, as specified on their labor certification. 

Extensions are permitted in increments of up to 1 year, with the total stay limited to 3 years.298 

(Labor certification is discussed in detail below.) 

Under the H-2A program, employers are required to provide housing and transportation to 

nonimmigrant agricultural workers, and must meet minimum occupational safety and health 

requirements. Work must be guaranteed for at least three-fourths of the contract period. 

Employers also must provide insurance in those states where farm workers are not covered by 

workers compensation insurance.299

H-2B applies to temporary or seasonal nonagricultural workers. This classification requires a 

temporary labor certification issued by the Secretary of Labor and is limited to 66,000 workers. 

H-2B workers may be authorized for an initial stay of up to 1 year, as specified on their labor 

certification. Extensions are permitted in increments of up to 1 year, with the total stay limited 

to 3 years.300

Trainees 

The INA of 1952 described a trainee as an alien with an unabandoned residence in a foreign 

country who is coming temporarily as an industrial trainee. The modifier, industrial, was 

removed in 1970. The Health Professions Educational Assistant Act of 1976 added the 

restriction that an H-3 nonimmigrant could not receive graduate medical education or training 

in the United States. The Immigration Act of 1990 added language stating that a training 

program should not be designed “primarily to provide productive employment” and added 

special education exchange visitor programs to the H-3 category. Most H-3 trainees may be 

admitted for a total stay of up to 2 years. Aliens entering for practical training in the education 

of disabled children are limited to a total stay of 18 months. The 1990 Act provided for special 

education exchange visitor programs for H-3 aliens; and, among other things, specified that 

training programs for H-3 immigrants not be designed primarily to provide productive 

employment.301 
58

L Nonimmigrants 

The L nonimmigrant category was created by Public Law 91-225, enacted on April 7, 1970. 

This classification was created to permit international companies to temporarily transfer 

qualified employees to the United States for the purpose of improving management 

effectiveness, expanding U.S. exports, and enhancing competitiveness in markets abroad.302 

This category is for aliens who work for a company that has a parent, subsidiary, branch, or 

affiliate in the United States:303

• L-1A applies to intracompany transferees who come to the United States 

to perform services in a managerial or executive capacity. 

• L-1B applies to intracompany transferees who come to the United States to 

perform services which entail specialized knowledge. 

• L-2 is for dependents of L-1 workers. 

Previously, these employees entered the United States on immigrant visas. However, the 1965 

amendments to the INA concerning visa allocation made this impractical. Thus, the 1970 

statute created the L nonimmigrant status stating that an L-1 is an alien who has been employed 

continuously for 1 year by a firm and who “seeks to enter the United States temporarily in 

order to continue to render his services to the same employer ... in a capacity that is manager, 

executive, or involves specialized knowledge.” The Immigration Act of 1990 changed the 

1-year period of continuous employment with the firm from being required to have occurred in 

the year immediately preceding the transfer to within the preceding 3 years of the transfer. 304

Intracompany transferees with L-1A visas who are coming to an existing office in the United 

States may be admitted for up to 3 years, with extensions of up to 2 years. Their total stay is 

limited to 7 years. Transferees coming to a new office are permitted an initial stay of 1 year, 

with the same extension-of-stay limits. The same requirements apply to L-1B nonimmigrants, 

with the exception that their total stay is limited to 5 years. 305

The Foreign Labor Certification Process 

Hiring foreign workers for temporary employment in the United States normally requires 

approval from several government agencies. First, employers must seek approval through the 

Employment and Training Administration (ETA) of the U.S. Department of Labor (DOL). An 

approval by DOL does not guarantee a visa issuance. Once the application is approved, the 

employer must petition USCIS for a visa. If USCIS approves the petition, the Department of 

State will issue a nonimmigrant visa to the foreign worker for U.S. entry. Applicants must also 

establish that they are admissible to enter the United States under the provisions of the 

Immigration and Nationality Act (see discussion of admissibility in Section VII). 

The foreign labor certification process is the responsibility of the employer, not the employee. 

In general, the employer will be required to complete these basic steps to obtain approval for 

hiring a nonimmigrant worker:306 
59

1. The employer must ensure that the position meets the qualifying criteria for 

the requested program. 

2. The employer must complete the ETA form designated for the requested 

program. This may include the form and any supporting documentation (e.g., 

job description, resume of the applicant, etc.). 

3. The employer must ensure that the wage offered equals or exceeds the 

prevailing wage for the occupation in the area of intended employment. 

4. The employer must ensure that the compliance issues effected upon receipt of 

a foreign labor certification are completely understood. 

5. The completed ETA form is submitted to the designated DOL office for the 

requested program (e.g., the State Workforce Agency (SWA), regional office 

or the national office). 

The actual procedures, however, depend on the nature of the visa being requested: H-1B, 

H-2A, H-2B, or D-1 (see Table 5.2). For H-1B nonimmigrants, the employer must file a Labor 

Condition Application (LCA) with DOL. The LCA includes several attestations regarding the 

employer’s responsibilities, including the wages, working conditions, and benefits to be provided 

to the H-1B nonimmigrant.307

The H-2A program provides for a variety of worker protections and employer requirements 

that do not apply to nonagricultural programs. Employers are required to file the Application 

for Alien Employment Certification, Form ETA 750, at least 45 days before the workers are 

needed. DOL will issue a labor certification upon a finding that there are not sufficient U.S. 

workers who are able, willing, qualified, and available for the employment offered to the alien 

and that the wages and working conditions of similarly employed U.S. workers will not be 

adversely affected. If the application is approved, DOL will inform the employer and the local 

SWA of the specific recruitment efforts required of them.308

In the case of H-2B nonimmigrant workers, the DOL decision serves only as an advisory to 

USCIS. DOL will grant certification if it finds that qualified persons in the United States are not 

available and that the terms of employment will not adversely affect the wages and working 

conditions of workers in the United States similarly employed. The certification is used by the 

employer to support its visa petition to USCIS.309

DOL also accepts attestations for two situations in which D-1 nonimmigrant crewmembers are 

permitted to perform longshore work at U.S. ports of entry. Such work is permitted only 

when it is the prevailing practice for a specific port, there is no strike or lockout at the place of 

employment, and notice has been given to U.S. workers or their representatives. In addition, 

D-1 crewmembers are permitted to perform longshore work in the State of Alaska if the 

employer makes a bona fide request for and employs U.S. longshore workers who are qualified 

and available in sufficient numbers from contract stevedoring companies, labor organizations 
60

recognized as exclusive bargaining representatives of U.S. longshore workers, and private dock 

operators.310

Depending on the employment program, the length of the process for requesting certification 

can vary between months and years. Generally, H-1B processing takes only a few working days, 

while labor certification under H-2A and H-2B may take several months. USCIS also provides a 

Premium Processing Service, which provides 15-day processing of petitions for certain foreign 

workers.311 In addition to the regular filing fees, employers must pay a separate fee of $1,000 

for premium processing. Currently, USCIS offers premium processing for the following 

nonimmigrant categories: E-1, E-2, H-1B, H-2B, H-3, L-1, O-1, O-2, P-1, P-2, P-3, Q-1, R, and 

TN.312

Table 5.2 Filing Requirements for Foreign Labor Certification 

H-1B H-2A H-2B D-1 

Submit 

to DOL 

Labor Condition 

Application 

(LCA) 

Form ETA 9035 

or ETA 9035E 

Application for 

Alien Employment 

Certification 

Form ETA 750 

(submit to local 

SWA) 

Application for 

Alien 

Employment 

Certification 

Form ETA 750 

(submit to local 

SWA) 

Attestation by 

Employers Using 

Alien Crewmembers 

for Longshore 

Activities in U.S. 

Ports 

OR 

Attestation by 

Employers Using 

Alien Crewmembers 

for Longshore 

Activities at 

Locations in the 

State of Alaska 

Form ETA 9033 or 

Form ETA 9033-A 

Submit 

to USCIS 

Copy of approved 

LCA and USCIS 

Form I-129 

Form 1-29, with 

Labor 

Certification 

Determination 

received from 

DOL 

Form I-129, 

with Labor 

Certification 

Determination 

received from 

DOL 
61

SECTION V1 

SPECIAL FOCUS: PERMISSION TO STUDY

Introduction 

Under the Immigration Act of 1924, students were classified as nonquota immigrants but were 

admitted for a limited stay. However, since students were admitted for a temporary stay, the 

immigrant classification of students was inaccurate. Thus, the Immigration Act of 1952 

corrected this inconsistency by reclassifying students as nonimmigrants. A 1961 amendment 

added the alien spouse and minor children to the student category, if they were accompanying 

or following to join the principal alien student. In order to provide stricter control over the 

foreign student population, a separate nonimmigrant category, M, was created in 1981 for 

students at vocational or other nonacademic schools, with the F category reserved for 

academic students.313

Currently, the INA provides two nonimmigrant visa categories for persons wishing to study in 

the United States in either academic or language training programs (F-1) or nonacademic or 

vocational studies (M-1). Their spouses and children are eligible for F-2 and M-2 visas, 

respectively. Part-time commuter students may qualify for F-3 or M-3 status (discussed below). 

Foreign students seeking to study in the United States may enter in the F-1 or M-1 category if 

they meet the following criteria:314

 Enrollment in an academic educational program, a language training program, or a 

vocational program; 

 Enrollment in a school that is approved by USCIS; 

 Full-time enrollment at the educational institution; 

 Proficiency in English, or enrollment in courses leading to English proficiency; 

 Sufficient funds for self-support during the entire proposed course of study; and 

 Maintenance of a residence abroad which the student has no intention of giving up. 

The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 imposed 

limits on nonimmigrant students’ attendance in publicly funded institutions. As of November 30, 

1996, F-1 visas cannot be issued to persons seeking to attend a public primary school or a 

publicly funded adult education program. F-1 students attending public secondary schools may 

not be enrolled for more than 12 months and must repay the school system the full, 

unsubsidized per capita cost of providing the education. These provisions do not apply to 

dependents of other lawfully admitted nonimmigrants attending public educational 

institutions.315 

 

Academic Students 
62

Duration of status is defined as the time during which the student is pursuing a full course of 

study at a USCIS-approved educational institution, or engaging in authorized practical training 

following completion of studies. An F-1 student who is admitted to attend a public high school 

is restricted to an aggregate of 12 months of study at any public high school. An F-1 student 

may be admitted for a period up to 30 days before the indicated report date or program start 

date listed on Form I-20. The student is considered to be maintaining status if he or she is 

making normal progress toward completing a course of study.316

Upon arriving in the United States, a nonimmigrant student is issued a Form I-94, 

Arrival/Departure Record, that includes the individual’s admission number to the United States. 

An immigration inspector records this number on the student’s USCIS Form I-20A-B/ID and 

sends pages 1 and 2 of this form, known as I-20 A-B, to the school the student is attending as a 

record of the student’s legal admission to the United States. The student is expected to keep 

pages 3 and 4, known as the I-20 ID, which is proof that the student is allowed to study in the 

United States as an F-1 student.317

Students in F-1 status may leave the United States and be readmitted after absences of 

5 months or less. Under IIRIRA, a violation of student status can affect the individual’s plans to 

travel or visit the United States in the future.318

Vocational Students 

A student in M nonimmigrant status is admitted for a fixed time period, which is the period 

consistent with the time necessary to complete the course of study indicated on the Form I-20, 

plus practical training following completion of the course of study, plus an additional 30 days to 

depart the United States, but not to exceed a total period of 1 year. An M-1 student may be 

admitted for a period up to 30 days before the report date or start date of the course of study 

listed on the Form I-20. An M-1 student who fails to maintain a full course of study or 

otherwise fails to maintain status is not eligible for the additional 30-day period of stay.319

When an M-1 student arrives in the United States, he or she is issued a Form I-94, 

Arrival/Departure Record, that includes the student’s admission number to the United States. 

An immigration inspector will write this number on the Form I-20 M-N/ID and take pages 1 and 

2 of the form, known as I-20 M-N. USCIS will receive the first page (I-20M) and the student’s 

school will receive the second page (I-20 N) as a record of the student’s legal admission to the 

United States. The student is expected to keep pages 3 and 4, known as the I-20 ID. This 

document is proof that the student is allowed to study at the indicated institution in the United 

States.320 

Part-time Students 

Generally, the immigration law prohibits the admission of aliens seeking to attend school parttime as commuters. However, it had become commonplace for Mexican and Canadian 

students to enter as visitors on a daily basis to attend school. Tighter enforcement of 
63

immigration laws after September 11, 2001, threatened the ability of these students to pursue 

their studies in the United States.321 

In response to concern over changes to the informal policy of allowing commuter students to 

enter the United States a temporary visitors, the Immigration and Naturalization Service issued 

an interim rule to allow Mexican and Canadian commuter students to study on a part-time 

basis at schools located within 75 miles of the U.S. border. The new rule clarified that Mexican 

and Canadian nationals who reside outside the United States and regularly commute across a 

land border to study could do so on a part-time basis within the F-1 or M-1 nonimmigrant visa 

category.322 

Soon thereafter, Congress, recognizing the impact commuter students can have on their home 

communities, introduced legislation to address the issue. 323 The resulting law, the Border 

Commuter Student Act of 2002, 324 created the F-3 and M-3 nonimmigrant categories for 

commuter students from Canada and Mexico who continue to reside in their home country 

while commuting to the United States to attend an approved school.325 

In its final rule on reporting requirements for F, J, and M nonimmigrants, the INS noted that F-3 

and M-3 students would be subject to the same reporting requirements and processes as F-1 

and M-1 students. The rule notes, however, that F-3 and M-3 border commuter students are 

not eligible to obtain F-2 or M-2 status for their dependents.326

Exchange Students 

As previously discussed, the J exchange visitor program is designed to promote the interchange 

of persons, knowledge, and skills in the fields of education, arts, and sciences. Students 

participating in academic exchange programs may be classified as J-1 nonimmigrants. 

High School Students 

IIRIRA bars the use of F-1 visas for a students attending public secondary schools whose 

aggregate period of attendance exceeds 12 months, if they do not reimburse the school for the 

full cost of the education. However, a foreign student who wishes to study at a secondary 

school for more than 12 months may request another type of visa, such as the J-1 exchange 

visitor visa.327

Student and Exchange Visitor Information System (SEVIS)

The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 requires the 

Federal government to collect information on an ongoing basis from schools and exchange 

programs relating to nonimmigrant foreign students and exchange visitors during the course of 

their stay in the United States. In 2001, the USA PATRIOT Act required full implementation of 

the computerized system designed to collect this information, know as the Student and 
64

Exchange Visitor Information System (SEVIS), by January 1, 2003. The Enhanced Border 

Security and Visa Entry Reform Act of 2002 further clarified these requirements and also 

specified that an educational institution must report the failure of an alien to enroll at that 

school no later than 30 days after the registration deadline.328

SEVIS is a web-based system for maintaining information on international students and exchange 

visitors in the United States. Information concerning all new and continuing students and 

exchange visitors was required to be entered into SEVIS by August 1, 2003. After a student is 

admitted to the United States, SEVIS sends a notification to the designated school official that 

the student has entered the country. The school is required to notify U.S. Immigration and 

Customs Enforcement (ICE) within 30 days of the school’s registration date whether or not the 

student has registered for classes. Schools also are required to update on a regular basis. 

Thus, ICE will receive timely information as to whether students are fulfilling school 

requirements in their courses of study. The information contained in SEVIS will be used by ICE 

to monitor compliance and identify trends. 
65

SECTION VII 

HOW DOES ONE APPLY FOR NONIMMIGRANT STATUS? 

Overview 

Generally, foreign nationals intending to come to the United States on a temporary basis must 

first obtain a nonimmigrant visa at a U.S. Department of State consulate overseas. A visa 

demonstrates the individual’s eligibility to apply for admission to the United States; it does not 

guarantee entry into the United States. Only a U.S. Customs and Border Protection officer at a 

U.S. port of entry has the authority to admit a person to the United States. 

Currently, not all visitors to the United States are required to possess a visa. Canadian citizens 

may enter the United States without a passport or visa. Mexican citizens may be issued a 

Border Crossing Card in lieu of a nonimmigrant visa. Similarly, nationals of other countries 

where there are few violations of immigration status may be exempted from the nonimmigrant 

visa requirement if they are coming for business or pleasure for periods of 90 days or less. 

However, entry requirements are expected to change by 2008 (see discussion below). 

The general requirements for foreign nationals seeking temporary admission include, but are 

not limited to, the following: 

• The purpose of the visit must be temporary. 

• The foreign national must agree to depart at the end 

of his or her authorized stay or extension. 

• The foreign national must be in possession of a valid 

passport. 

• A foreign residence must be maintained by the foreign 

national, in most instances. 

• The foreign national may be required to show proof of 

financial support. 

• The foreign national must not be inadmissible under 

the grounds of inadmissibility, or must have obtained a 

waiver for any ground of inadmissibility. 

• The foreign national must abide by the terms and 

conditions of admission, usually related to permission 

to work. 

When the intending nonimmigrant arrives at a U.S. port of entry, he or she must present the 

required documentation to a U.S. immigration officer. The officer will inspect the individual’s 

documents, make a determination of whether or not the individual may be admitted to the 

United States, and specify the conditions of entry. Although most persons with valid 

nonimmigrant visas, or other appropriate documents, are admitted, some persons may be 

denied entry if the inspecting officer determines that they are coming for other purposes than 

those stated on their nonimmigrant visa or that they are otherwise inadmissible. 
66

Acquiring a Nonimmigrant Visa 

A visa is a document which is affixed to a page in an individual’s passport. Under U.S. law the 

Department of State has responsibility for issuing visas. Therefore, an individual planning to 

travel to the United States must first apply for a visa at an American embassy or consulate 

abroad. The intending nonimmigrant must complete Form DS-156 to apply for a visa and 

submit a recent photograph and any required documentation. Certain types of visas (such as 

for foreign students or temporary workers) 

require supplemental forms and additional 

documentation.329

Once the application has been submitted, a 

consular officer will review the application and 

determine if the individual is qualified for a visa. 

The review process includes indepth background 

checks using security databases that contain 

comprehensive information drawn from both U.S. 

and foreign law enforcement agencies worldwide. 

Visa applicants usually must be interviewed inperson by a consular officer at the consulate or embassy. Applicants should take their 

passports, application forms, and supporting documentation (detailing employment, reasons for 

travel, financial status, etc.) to the interview. Interview and application procedures may vary 

slightly, depending on the office or country in which one applies.330

Depending on the embassy or consulate, once the application for a nonimmigrant visa is 

approved, the applicant’s supporting documentation and passport, with visa affixed, will be 

returned to the applicant. The visa sticker will indicate the visa number, date and place of issue, 

and visa classification. 331 If the application is denied, the applicant will be informed and the 

reasons for the denial will be provided. 332 Generally, consular decisions made overseas are 

considered to be final and may not be reviewed by the courts.333

Presumption of Status 

According to the INA, an alien is presumed to be an intending immigrant until he or she 

establishes that he or she is entitled to a nonimmigrant status.334 Thus, when applying for a 

nonimmigrant visa or applying for admission to the United States at a port of entry, the 

individual must satisfy the consular and immigration officers that he or she is coming to the 

United States for a temporary period of time and for a specific reason. The burden of proof is 

placed upon the applicant. Thus, the alien will have to provide documentation as to the nature 

and extent of the trip, and that the planned activities are consistent with the purpose stated. 

For example, an applicant for a student nonimmigrant visa must show that he or she has 

sufficient funds to cover the costs of education in the United States. Other nonimmigrants are 

required to demonstrate that they meet residence abroad requirements.335
67

Admissibility 

Although the United States welcomes most visitors, there are some persons who may pose 

threats to the Nation and are therefore not permitted to enter the country. The admissibility 

of an alien is determined first by the consular officer reviewing the visa application, and again by 

the inspector at the U.S. port of entry. Under the Immigration and Nationality Act, there are 

several grounds of inadmissibility:336 

1. Health-related grounds (such as persons who have certain communicable 

diseases of public health significance); 

2. Criminal grounds (including crimes of moral turpitude, violations of laws 

concerning controlled substances, prostitution or any other unlawful 

commercialized vice, severe violations of religious freedom, human 

trafficking, money laundering, espionage, or sabotage); 

3. Security grounds (including persons involved with terrorist organizations 

and persons whose entry or proposed activities would have potentially 

serious adverse foreign policy consequences for the United States); 

4. Public charge (i.e., persons who are likely to become public charges); 

5. Labor certification and qualifications (i.e., persons seeking to enter the 

United States to work without authorization); 

6. Illegal entrants (including persons who entered without inspection and 

persons who falsely represented themselves to be U.S. citizens); 

7. Persons without valid documents (such as visas, reentry permits, passports); 

8. Persons ineligible for citizenship; 

9. Aliens previously removed (including aliens unlawfully present); and 

10. Miscellaneous grounds (such as persons intending to practice polygamy and 

persons involved in international child abduction). 

Prior to the passage of the Immigration Act of 1990, there were 33 separate grounds of 

“exclusion.” The list of these reasons for denying admission to the United States had been 

expanded over the years. The 1990 Act reorganized the grounds of exclusion under nine 

major categories, and rewrote some of the grounds, such as those that applied to paupers, 

beggars, and vagrants. 337 (The tenth ineligibility category, “Aliens previously removed,” was 

added in 1996.338) 

In 1996, entry and exclusion were redefined under the Illegal Immigration Reform and 

Immigrant Responsibility Act. The law reframed the grounds of exclusion and deportation as 

the grounds of inadmissibility and removal to clearly distinguish between an individual who has 

been admitted to the United States and an individual seeking admission to the United States. 

Prior to admission, the grounds of inadmissibility are applicable; once an individual has been 

admitted, the grounds of removal are applicable.339 

The INA also states that any nonimmigrant whose passport is not valid for at least 6 months 

from the date of expiration of the initial period of admission to the United States, or who does 

not have a valid nonimmigrant visa or border crossing card, is inadmissible. This requirement is 

waived for Canadians and foreign nationals entering under the Visa Waiver Program, and for 

other circumstances, such as on the basis of an unforeseen emergency.340
68

The INA notes that certain aliens may be eligible for a waiver of other grounds of inadmissibility. 

For example, a nonimmigrant seeking entry with a K visa (for fiancé(e)s and spouses of U.S. 

citizens and their children) may be granted a waiver of inadmissibility for certain health-related 

conditions. The applicant must file Form I-601, along with proper medical documentation, at 

the consular office where the visa application is filed.341 

Further, DHS has the discretion to grant waivers of inadmissibility in certain cases. In a 2004 

policy memorandum, USCIS noted that it will consider individual waivers of inadmissibility due 

to HIV infection for nonimmigrants who seek to enter the United States for stays of 30 days or 

less for specific purposes that are considered humanitarian or public interest reasons. Blanket 

waivers will be considered for nonimmigrants attending certain designated international events 

taking place in the United States.342

Entry to the United States

In general, a nonimmigrant entering the United States must present a passport with a valid 

nonimmigrant visa at the time of inspection at a U.S. port of entry. If the U.S. immigration 

officer finds the individual to be admissible, the officer issues a DHS Form 

I-94, Arrival/Departure Record (see Exhibit 7.1) as evidence of the alien’s terms of admission, 

including the class of admission and the date admitted. 

Nationals of certain countries may be permitted entry to the United States without a 

nonimmigrant visa, or with other documentation. Requirements for Canadian and Mexican 

nationals, and nationals of countries participating in the Visa Waiver Program are discussed 

below. However, entry requirements are expected to change by January 1, 2008. The 

Intelligence Reform and Terrorism Prevention Act requires that DHS develop a plan to require 

U.S. citizens and foreign nationals to present a passport or other secure document when 

entering the United States. Pending final regulations, citizens of the United States, Canada, 

Mexico, and the British Overseas Territory of Bermuda will be required to present a passport 

(or other secure document) at U.S. ports of entry.343

Canadian Citizens

Citizens of Canada traveling to the United States for business or pleasure intending to stay 6 

months or less do not need a passport or a visa, unless arriving from outside the Western 

Hemisphere, and are not required to obtain an I-94. To enter the United States, a Canadian 

citizen needs only to establish identity and citizenship. Although an immigration officer may 

accept an oral declaration of citizenship, Canadian citizens may be asked to show documents 

establishing their citizenship, such as a birth certificate, citizenship certificate, or passport, as 

well as identification containing a photograph.344 

Effective March 17, 2003, nationals of British Commonwealth countries resident in Canada or 

Bermuda are required to present a valid non-immigrant visa for entry to the United States, 

unless they are a national of a country designated eligible to enter under the Visa Waiver 

Program.345
69

Exhibit 7.1. Form I-94, front and back 
70

Mexican Citizens 

In general, a citizen of Mexico wishing to visit the United States must present a passport and 

visa or a Border Crossing Card (BCC).346 Mexican visitors possessing BCCs are admitted for 

up to 72 hours for travel within 25 of the United States-Mexico border.347 This border crossing 

area is extended to 75 miles for much of 

Arizona. 348 If BCC holders wish to travel 

beyond the border area or for longer than 72 

hours, they must apply for an I-94 at the port 

of entry. 

Border Crossing Cards, Form DSP-150, also 

called Laser Visas, are issued by the 

Department of State at consulates in Mexico. 

They are biometric, machine readable 

documents. The eligibility requirements for 

the BCC are the same as for a B-1 or B-2 

visa. To obtain a BCC, Mexican nationals must demonstrate that they have ties to Mexico that 

would compel them to return after a temporary stay in the United States. In issuing BCCs, U.S. 

consular officers look for evidence of strong family, business, or social ties to Mexico. 

Visa Waiver Program 

The Visa Waiver Program (VWP) allows foreign nationals from certain countries to be 

admitted to the United States under limited conditions and time constraints, without obtaining 

a nonimmigrant visa. The Enhanced Border Security and Visa Entry Reform Act of 2002349

required all persons entering under the VWP to have a machine-readable passport by October 

26, 2004. Visitors without such passports are required to have a nonimmigrant visa.350

The VWP was first authorized by the Immigration Reform and Control Act of 1986351 as a pilot 

program; the program was made permanent by the Visa Waiver Permanent Program Act of 

2000.352 The House Report accompanying the 1986 immigration reform bill discussed the need 

for a nonimmigrant visa waiver pilot program “for countries whose nationals have traditionally 

abided by U.S. immigration law.”353 The House Report stated: 

The Committee believes that a pilot visa waiver program will promote better relations 

with some of our closest allies and other friendly nations. It would eliminate an 

unnecessary barrier to travel and stimulate the tourism industry in the United States. 

Also, it would alleviate vast amounts of paperwork allowing U.S. consular offices to 

better meet high priority responsibilities such as visa screening in high fraud areas.354

For foreign nationals to enter the United States under the VWP, the Secretary of Homeland 

Security, in consultation with the Secretary of State, may designate a country as a participant in 

the program if the following requirements are met: 

• The country offers reciprocal travel privileges to United States citizens; 
71

• Nationals of the country have a low refusal rate for United States visas; 

• The country has certified that it has a machine-readable passport program, or will 

begin issuing machine-readable passport to its citizens not later than October 26, 

2005;355

• The Secretary of Homeland Security, in consultation with the Secretary of State, 

prepares a report evaluating the effect the country's designation would have on the 

United States' law enforcement and security interests; and 

• The Secretary of Homeland Security, in consultation with the Secretary of State, 

determines that the country's designation for the program would not compromise 

United States law enforcement or national security interests, including interests in 

enforcing immigration laws. 

In addition, to qualify for the VWP, an individual must intend to enter the United States for 90 

days or less, and possess a passport lawfully issued by a VWP country (of which the individual is 

a national) that is valid for 6 months beyond the intended visit. In addition, the intending 

nonimmigrant must have a return trip ticket to any foreign destination (other than a territory 

bordering on the United States or an adjacent island unless a resident of an adjacent island) and 

must present a completed and signed Form I-94W, Nonimmigrant Visa Waiver 

Arrival/Departure Form, to the U.S. Customs and Border Protection (CBP) officer at the port 

of entry. 

The officer will check an electronic database to ensure that the alien is not inadmissible and 

does not pose a safety threat to the United States. By submitting the I-94W, the nonimmigrant 

waives any right to review or appeal a CBP officer's decision as to admissibility, and any right to 

challenge removal, other than on the basis of an application for asylum or an application for 

withholding of removal under the Convention Against Torture and Other Cruel, Inhuman or 

Degrading Treatment or Punishment. 

Currently, there are 27 countries participating in the Visa Waiver Program (see Table 7.1). The 

Secretary of Homeland Security, in consultation with the Secretary of State, may add countries 

to the program or remove them from the program at any time. The participation of a country 

may be terminated under certain conditions, including the overthrow of a democratically 

elected government, war, severe economic collapse, and other conditions that threaten the law 

enforcement or security interests of the United States. Since its inception, only two countries 

have lost designation as VWP countries. Argentina was removed from the program in 2002 

because of severely declining economic conditions in the country. 356 Uruguay was removed 

from the program in 2003, after a review of the program found high visa overstay rates for 

nationals of that country.357
72

Table 7.1 Visa Waiver Countries, 2005 

Andorra Iceland Norway 

Austria Ireland Portugal 

Australia Italy San Marino 

Belgium Japan Singapore 

Brunei Liechtenstein Slovenia 

Denmark Luxembourg Spain 

Finland Monaco Sweden 

France Netherlands Switzerland 

Germany New Zealand United Kingdom 

Denial of Admission 

In certain circumstances, individuals can request a hearing before the immigration court if their 

applications for admission have been denied. An immigration judge will hear the case and make 

a determination. The judge's decision can be appealed to the Board of Immigration Appeals. 

However, persons applying for admission under the Visa Waiver Program cannot appeal the 

decision. In cases involving fraud, willful misrepresentation, false claim to U.S. citizenship, or lack 

of a valid immigrant visa for an intending immigrant, the officer's decision is final.358

Authorized Stay 

As noted above, when a nonimmigrant arrives at a U.S. port of entry, a U.S. immigration officer 

inspects the alien’s documents and, if admission to the United States is granted, the immigration 

officer will staple the departure portion of Form I-94 in the alien’s passport (see Exhibit 7.1). 

This form shows either a date or the designation “duration of status” (D/S). In most cases, a 

specific date will be indicated on the Form I-94 in the lower right-hand corner which is the date 

by which the alien must leave the United States. Some students, exchange program participants, 

and individuals such as foreign diplomats may be admitted for duration of status, meaning that 

they may remain in the United States as long as they stay in status, such as by continuing to 

make progress toward their course of studies or remaining in the exchange program or job for 

which they obtained their nonimmigrant visa.359

Failure to maintain status or overstaying the period of authorized admission carries severe 

penalties. Under the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) of 

1996,360 persons who remain beyond their period of admittance can have their visas voided. In 

such instances, the individual will be required to obtain a new visa prior to returning to the 

United States. Nonimmigrants unlawfully present in the United States for a consecutive period 

of more than 180 days who voluntarily depart the United States are barred from returning to 

the United States for a period of 3 years; those unlawfully present for a period of 1 year or 

more are barred from returning for 10 years.361

 
73

Extension of Stay 

Nonimmigrants may apply for and be granted an extension of their temporary stay in certain 

circumstances if they have not committed any act which would make then ineligible for 

extension. Additionally, a nonimmigrant must submit an application for the extension of stay 

before the current authorization expires,362 preferably at least 45 days before the authorized 

stay expires, but no later than the day on which the authorized stay expires. 

The type of nonimmigrant visa determines which application for extension of stay must be filed, 

as shown in Table 7.2. Nonimmigrants in temporary worker categories E, H, L, O, P, Q, R, and 

TN may have an extension of stay application submitted on their behalf by their employer, using 

Form I-129, Petition for Nonimmigrant Worker. These principal nonimmigrants may apply for 

extension of stay for their dependents using Form I-539, Application to Extend/Change 

Nonimmigrant Status. Nonimmigrants in categories A, B, F, G, I, J, M, and N apply for 

extensions of stay for themselves and their dependents using Form I-539, Application to 

Extend/Change Nonimmigrant Status. 

Table 7.2. Nonimmigrant Extension of Stay 

Changing from One Nonimmigrant Status to Another363

In general, nonimmigrants may apply to change their nonimmigrant status if their nonimmigrant 

status remains valid and they have not committed any crimes that would make them ineligible. 

Nonimmigrants admitted in the D, C, K, or S categories may not change their nonimmigrant 

status, nor can entrants under the Visa Waiver Program. (Some nonimmigrants are permitted 

to apply for permanent resident status, and others are permitted to have dual intent – i.e., 

entering the United States as a nonimmigrant with the intention of adjusting status to that of 

permanent resident. These issues are discussed in Section VIII.) 

Some special circumstances are worth noting about the change of nonimmigrant status for 

certain groups. For example, vocational students (M visa category) may not apply to become 

academic students (F visa category). They also may not apply to change from the vocational 

May not apply for 

extension 

Employer must apply for 

extension 

Individual may apply for extension 

C - Aliens in transit 

D - Crewmembers 

K - Fiancé(e) of a U.S. 

citizen and dependent of 

a fiancé 

S - Informant on 

terrorism or organized 

crime, and family 

VWP - Aliens entering 

under the Visa Waiver 

Program 

T - may not be extended 

except if nonimmigrant 

timely applies for 

adjustment of status 

E - International Traders and 

Investors 

H - Temporary Workers 

L - Intracompany Transferees 

O - Aliens of Extraordinary Ability 

P - Entertainers and Athletes 

Q - Participants in International 

Exchange Programs 

R - Religious Workers 

TN - Canadians and Mexicans 

Under NAFTA 

A - Diplomatic and other government officials, 

their families and employees. 

B - Temporary visitors for business or 

pleasure 

F - Academic students and their families 

G - Representatives to international 

organizations, their families and employees 

I - Representatives of foreign media and their 

families 

J - Exchange visitors and their families 

M - Vocational students and their families 

N - Parents and children of the persons 

granted special immigrant status because 

their parents were employed by an 

international organization in the United States 
74

student visa category to a temporary worker visa category (H) if they are qualifying as a 

temporary worker based on the training they received as a vocational student. 

Nonimmigrants who entered as international exchange visitors (J visa category) may not change 

their nonimmigrant status if they were admitted to the United States to receive graduate 

medical training, unless they receive a special waiver. In addition, some exchange visitors must 

meet a foreign residency requirement before they are allowed to change status. This means 

that some international exchange visitors must leave the United States and go back to their 

home country for a minimum of 2 years before applying to come to the United States as a 

temporary worker or an immigrant. Exchange visitors who are required to meet the foreign 

residency requirement must receive a waiver if they wish to change their nonimmigrant status 

without returning home. Without such a waiver, they may only apply to change to the A 

(diplomatic and other government officials) or G (representatives to international organizations) 

nonimmigrant categories. 

However, spouses and children of certain nonimmigrants do not need to apply to change status 

to attend school in the United States as long as the principal nonimmigrant maintains their 

original nonimmigrant status. This includes: 

 Diplomatic and other government officials, their families and employees (A) 

 International traders and investors (E) 

 Representatives to international organizations, their families and employees (G) 

 Temporary workers (H) 

 Representatives of foreign media and their families (I) 

 Exchange visitors and their families (J) 

 Intracompany transferees (L) 

Spouses and children of F or M nonimmigrants do not need to apply to change status to attend 

elementary, middle, or high school in the United States; however they must apply for change of 

status to attend a post-secondary institution as full-time students. 
75

SECTION VIII 

POLICY ISSUES RELATED TO THE 

NONIMMIGRANT SYSTEM

Over the years, Federal policy makers have revised immigration laws to reflect changing world 

conditions and national priorities. The nonimmigrant classification system is an example of a 

continually evolving policy. As categories became too narrow, or other reasons were approved 

for the entry of aliens, the nonimmigrant categories were adapted to permit eligible aliens to 

enter the United States. Thus, over time, different requirements for different groups of aliens 

have been created. Because of the complexity of immigration law, and nonimmigrant policies in 

general, it is imperative to periodically evaluate the effectiveness of such policies. In this section, 

many of the issues related to nonimmigrants are discussed to provide an overview for any 

future debates on nonimmigrant policy. 

Dual Intent 

If a nonimmigrant plans to immigrate to the United States at some point, he or she is said to 

have “dual intent” – i.e., the nonimmigrant, though in the United States on a temporary basis, 

intends to remain permanently. Only some nonimmigrant categories are permitted to have 

dual intent, and only under certain conditions. 

Under section 214(b) of the Immigration and Nationality Act, an individual is presumed to be an 

immigrant until he or she establishes that he or she is entitled to a nonimmigrant status (see the 

discussion of “Presumption of Status” in Section VII). Nonimmigrant intent is often shown by 

the nonimmigrant maintaining an unabandoned foreign residence abroad and demonstrating the 

reason for entering the United States and the length of the proposed stay. Consular officers 

and USCIS adjudicators are trained to take a variety of factors into account when determining 

intent. 

The Immigration Act of 1990 officially sanctioned dual intent for certain categories of 

nonimmigrants. The legislative history of the Act states: 

The difficulties encountered by those seeking temporary admission who have also 

expressed a desire to immigrate at some time in the future have caused severe personal 

hardship as well as inhibited frequent travel to the United States for business purposes. 

This has been particularly onerous for the beneficiaries of H and L visas. The Committee 

[on the Judiciary] sees no useful purpose in denying temporary entry to the United States 

for business purposes because of an inability to show that a residence abroad will not be 

abandoned. Such presumption of immigrant intent in particular circumstances creates 

purposeless, but often insurmountable, barriers for the prospective employee and the 

employer. For all categories of nonimmigrant visas (including the H and L), the bill provides 

that the filing of an immigrant petition cannot be a factor in determining whether an alien 

intends to abandon a foreign residence. The Committee notes, however, that the consular 
76

officers may rely on other evidence indicating the possibility of overstaying a visa, such as 

records of past visits to the United States.364

In particular, the 1990 Act removed the foreign residence requirement for H-1 

nonimmigrants. 365 (Maintenance of a foreign residence had not been required of 

L nonimmigrants.) Thus, the law permits H-1 and L nonimmigrants to maintain nonimmigrant 

status while seeking permanent residence in the United States. Section 214(h) of the 

Immigration and Nationality Act, as amended, states: 

The fact that an alien is the beneficiary of an application for a preference status filed under 

section 204 or has otherwise sought permanent residence in the United States shall not 

constitute evidence of an intention to abandon a foreign residence for purposes of 

obtaining a visa as a nonimmigrant described in subparagraph (H)(i)(b) or (c), (L), or (V) of 

section 101(a)(15) or otherwise obtaining or maintaining the status of a nonimmigrant 

described in such paragraph, if the alien had obtained a change of status under section 248 

to a classification as such a nonimmigrant before the alien’s most recent departure from the 

United States. 

Dual intent was subsequently recognized in USCIS regulations, which state that an H-1B or 

H-1C nonimmigrant “may legitimately come to the United States for a temporary period ... and 

depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek 

to become a permanent resident of the United States.”366 Similar regulatory language permits 

dual intent for L nonimmigrants as well.367

USCIS also has applied the doctrine of dual intent to E nonimmigrants. Because the INA does 

not require E nonimmigrants to maintain a foreign residence that they have no intention of 

abandoning, and because E nonimmigrants are able to extend their stay indefinitely in the 

United States, regulations were promulgated stating that “an application for initial admission, 

change of status, or extension of stay in E classification may not be denied solely on the basis of 

an approved request for permanent labor certification or a filed or approved immigrant visa 

preference petition.368 

Similarly, USCIS regulations allow dual intent for O-1 and P nonimmigrants, with the exception 

of essential support personnel.369

Adjustment of Status 

One concern with permitting nonimmigrants to have dual intent or to adjust their status is that 

the nonimmigrant visa system becomes a “back door” to immigration for persons who are not 

willing to wait outside the United States until an immigrant visa becomes available. However, 

U.S. immigration law permits most nonimmigrants to adjust to permanent resident status, with 

certain exceptions. 

Prior to the passage of the Immigration and Nationality Act of 1952, there was no statutory 

authority for allowing an alien already in the United States to adjust their status to that of 

immigrant (i.e., permanent resident). Generally, if an alien wished to become a permanent 

resident, he or she would have to leave the United States and apply for a visa at an American 
77

consular office abroad. Over the years, however, provisions have been added to U.S. 

immigration law that permit adjustment of status.370 

Section 245 of the Immigration and Nationality Act, which was added in 1952, permits certain 

aliens to apply for permanent resident status while they are in the United States. Under this 

section, an alien must qualify for an immigrant visa, and an immigrant visa must be immediately 

available – the same requirements for persons applying for permanent residence outside the 

United States. 

Some nonimmigrants, such as those with H-1 or L-1 visas, can apply for adjustment of status 

without leaving the United States to await the availability of an immigrant visa number. Such 

individuals can be the beneficiary of an immigrant visa petition, apply for adjustment of status, or 

take other steps toward Lawful Permanent Resident (LPR) status without affecting their 

nonimmigrant status. This is known as "dual intent" and has been recognized in the immigration 

law since passage of the Immigration Act of 1990. During the time that the application for LPR 

status is pending, aliens in these nonimmigrant status may travel on their nonimmigrant visas 

rather than obtaining advance parole or requesting other advance permission from USCIS to 

return to the United States. 

The statistics in Table 8.1, below, provide a glimpse at the volume of adjustment of status 

cases.371 In 2002, a total of 679,305 nonimmigrants adjusted status, representing 64 percent of 

all “new” immigrants admitted that year. Persons who had entered the United States originally 

as visitors for pleasure and temporary workers accounted for one-quarter of all adjustment 

cases. Comparatively, students accounted for less than 3 percent of the 2002 adjustments. 

Table 8.1. Adjustment of Status by Selected Status at Entry, 2002 

Region Visitors for 

Business 

Visitors for 

Pleasure 

Students Temporary 

Workers 

Fiancé(es) 

Intracompany 

Transferees

All Countries 6,181 91,845 18,720 87,168 18,621 15,148

 

Europe 706 12,971 2,744 11,397 4,739 5,054

Asia 2,743 26,646 11,153 63,668 9,358 4,545

Canada/Mexico 391 14,661 518 4,312 1,653 2,847

South America 822 15,348 1,316 2,573 966 1,488

Caribbean 421 10,356 597 765 594 84

Central America 274 3,666 163 233 231 83

Oceania 51 920 131 589 226 363

Africa 733 6,747 1,981 3,171 754 645

Source: DHS, 2002 Yearbook of Immigration Statistics, October 2003, table 10. 
78

U.S. immigration law and its critics have not always taken into account that some individuals 

have legitimate reasons for wishing to move from a temporary to a permanent status. Others 

cite concern with rapid population growth, misuse of nonimmigrant visa programs, and a variety 

of other such impacts on society and on agencies at all levels of government that provide 

services to foreign visitors and other newcomers to society. 

Visa Overstays 

In 2000, about 33 percent (2.3 million) of the total undocumented population were estimated 

to be nonimmigrant overstays; that is, persons who entered the United States legally on a 

temporary basis but failed to depart at the time specified on their visa. The proportion of the 

undocumented population who are overstays varies considerably by country of origin. 

Estimates for 1996 suggest that about 16 percent of the Mexican undocumented population are 

nonimmigrant overstays, compared to 26 percent of those from Central America and 91 

percent from all other countries.372

As the U.S. General Accountability Office and other organizations have noted, the tracking of 

overstays has become an important part of securing the Nation. While it appears that most 

long-term overstays are economically motivated, some overstays may pose a threat to national 

security.373 Nonetheless, the volume of nonimmigrant entries and the wide assortment of entry 

requirements applicable to nationals of different countries historically has made the tracking of 

the comings and goings of nonimmigrants difficult. 

Overstays may be the result of malicious intent, or they may be the result of misinformation, 

misunderstandings, or unforeseen events. Further study is needed concerning the extent of and 

reasons for visa overstays. More careful collection of data concerning entry and exit, such as 

through the US-VISIT program, can help in tracking overstays. 

Tracking Arrivals and Departures of Visitors to the United States 

The U.S. Visitor and Immigrant Status Indicator Technology Program (US-VISIT) facilitates the 

entry of visitors to the United States, as well as providing a means of verifying the identity of 

such visitors and determining if they have complied with the terms of their visas by departing 

the United States when required. The goals of the program are to enhance the security of U.S. 

citizens and visitors, to facilitate legitimate travel and trade, ensure the integrity of the 

immigration system, and safeguard the personal privacy of visitors. 374 US-VISIT became 

operable in December 2004, although efforts to verify the identity and addresses of aliens have 

been included in U.S. immigration laws since the 1940s.

Legislative Requirements 

Immigrants and nonimmigrants were first required to register with the U.S. Government after 

the passage of the Alien Registration Act of 1940.375 This law specified that all aliens over 14 

years of age were to be fingerprinted when they registered, and immigrants were to notify the 
79

Attorney General of each change of address. The purpose of this requirement was to enable 

the INS to identify, track, and locate aliens while they were in the United States. Persons 

visiting for less than 30 days, foreign government officials and their family members, and 

representatives of international organizations and their family members were exempt from the 

registration requirement.376

The registration requirement was modified over time. Legislation enacted in the 1950s, 

required all aliens to annually report their addresses to the INS and to report any change of 

address within 10 days of the change. 377 Finally, in 1981, the annual reporting requirements 

were eliminated by Congress;378 however, both immigrants and nonimmigrants still must report 

a change of address within 10 days.379

Current entry and exit tracking procedures stem from the requirement in the Illegal 

Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 that the departure of 

every foreign national from the United States be recorded and matched against entry records 

to enable DHS to identify “lawfully admitted nonimmigrants who remain in the United States 

beyond the period authorized...”380 That requirement was amended by the Immigration and 

Naturalization Service Data Management Improvement Act (DMIA) of 2000. 381 These and 

other laws enacted between 2000 and 2002 have resulted in an entry-exit tracking program 

known as US-VISIT. 

The DMIA mandated the creation of an automated entry-exit system that integrates all 

electronic alien arrival and departure information maintained by DHS and the Department of 

State.382 The law specified that the system was to be implemented at the 50 busiest land border 

ports of entry by December 31, 2004, and at all ports of entry by December 31, 2005. 

Information contained in the system is to be used to determine visa overstays and other 

information on entry and exit.383 

Also enacted in 2000, the Visa Waiver Permanent Program Act of 2000384 required the creation 

of a system that contains a record of the arrival and departure of every alien admitted under 

the Visa Waiver Program who arrives or departs by air or sea. This information also was 

incorporated into the US-VISIT program.385

In response to the events of September 11, 2001, two key pieces of legislation were passed that 

affected the requirements for US-VISIT. Section 403(c) of the Uniting and Strengthening 

America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA 

PATRIOT Act)386 required the development and certification of appropriate biometric standards 

to be used in verifying the identity of visa applicants and persons seeking to enter the United 

States, and in conducting background checks on such individuals. 

These biometric requirements were reinforced by the Enhanced Border Security and Visa Entry 

Reform Act of 2002 (“Border Security Act”)387 which required that: 

 the entry-exit system use the technology and biometric standards identified 

pursuant to the USA PATRIOT Act; 
80

 DHS and DOS issue only machine-readable, tamper-resistant visas and other 

travel and entry documents no later than October 26, 2004; 

 no later than October 26, 2004, all ports of entry must have equipment and 

software installed to allow biometric comparison and authentication of all 

United States visas and other travel and entry documents issued to aliens and 

passports; 

 persons entering under the Visa Waiver Program have tamper-resistant, 

machine-readable passports with biometric identifiers by October 26, 2004; 

and 

 countries in the Visa Waiver Program issue tamper-resistant, machinereadable, biometric passports by October 26, 2005 (as amended).388

The Border Security Act also required that the entry-exit system share information with other 

systems required by the Act. Section 202 of the Act specifies requirements for an 

“interoperable” law enforcement and intelligence data system and requires the integration of all 

databases and data systems that process or contain information on aliens.389

Operational Procedures

US-VISIT is the entry-exit system that was developed to meet the requirements under the 

DMIA and related legislation. In many instances, the process begins overseas at U.S. consular 

offices where intending visitors’ biometrics (digital fingerprints and photographs) are collected 

and checked against a database of records on criminal and/or terrorist activities. When visitors 

arrive at a port of entry, digital fingerprints and photographs are taken again and matched 

against the existing record to verify that persons requesting entry are the same individuals who 

received the visas. In addition, the standard entry procedures apply, during which a U.S. 

Customs and Border Protection officer reviews visitors’ travel documents and asks questions 

about their stay the United States.390

Procedures for exit are being tested at Baltimore-Washington International Airport, Miami 

Seaport cruise line terminals, and Chicago O’Hare International Airport. Nonimmigrants 

departing from those ports are required to confirm their departure using US-VISIT. The 

checkout includes scanning the visa or passport and repeating the digital fingerprint process. 

An exit confirmation will be added to aliens’ travel documents. On September 30, 2004, USVISIT was expanded to all visitors traveling under the Visa Waiver Program departing from 

airports and seaports.391

Temporary Workers 

The debate over whether and under what conditions foreign workers should be permitted to 

work in the United States on a temporary basis has persisted for decades. The treatment of 

migratory workers, protecting jobs for U.S. workers, wages, and other fairness issues are a 

large part of the debate. Fluctuations in the U.S. economy have also influenced how temporary 

workers are viewed and accepted. 
81

During World War II and the Korean War, foreign workers, including millions of Mexican 

agricultural workers, were welcomed to the United States with open arms. But in later years, 

with the economy floundering and jobs hard to find, foreign workers were not so welcome. In 

periods of high unemployment, foreign workers are often considered to be responsible for 

Americans’ loss of jobs, leading to suspicion and blame on both sides. Other interests express 

concern for the working conditions and treatment of foreign workers, while still others are 

concerned with the potential impact on wages. Some argue that foreign workers take only the 

jobs that Americans refuse to do. 

Temporary workers, like exchange visitors, foreign students, and other temporary visitors, can 

enrich the workforce, contribute to the U.S. economy, and promote development in their 

home countries through remittances. International economic circumstances as well as the 

needs of the United States need to be reflected in design of future temporary worker programs. 
82
83

CONCLUSION

The United States welcomes and encourages visitors from other nations. U.S. policy promotes 

cultural exchange to create a broader understanding of the United States in other parts of the 

world and to enhance our knowledge of our friends and neighbors in other nations and cultures. 

We also recognize the importance of international trade and investment in both business and 

human capital. Thus, the United States encourages tourism by foreign nationals, cross-border 

commerce, the flow of goods and services across our borders and around the world, and other 

cultural exchanges. 

Nonimmigrant policies are integral to these national goals. Like other nations, the United States 

has developed laws, regulations, and policies to facilitate the clearance and admittance of 

nonimmigrant foreign nationals who come for a variety of reasons. Such policies are largely 

intended to protect our values concerning freedom, trade, and the welcoming of others, while 

at the same time protecting the Nation from threats to our security. 

The world is always in flux. Social, political, and economic conditions create changes that touch 

everything from education and housing to law-making and enforcement of those laws. 

Immigration law is not immune to such forces. Therefore, it is important for lawmakers and 

policymakers to periodically reexamine issues in light of recent developments. 

The nonimmigrant classification system has evolved through the years. More categories have 

been added since the Immigration and Nationality Act of 1952 organized and codified them. 

Restrictions for certain groups of nonimmigrants have been tightened, while other categories 

have been expanded. Considerations for family members, children, and fiancées have been 

incorporated into the nonimmigrant framework. The result is an even more complex landscape 

for foreign nationals to make their plans to visit the United States a reality. 

Over the years, many commentators have suggested new ways of defining nonimmigrant 

categories, ranging from restrictionist plans that limit the number of nonimmigrants admitted in 

temporary categories to proposals that would facilitate the transition from nonimmigrant to 

immigrant. This report does not support a particular position, nor does it propose a new 

classification scheme. What it does is present the nonimmigrant categories as currently defined 

and identify some of the issue areas related to the temporary admission of aliens to the United 

States. The intent is to provide a legal and historical framework for the current nonimmigrant 

system as a way to focus any future discussions for aligning immigration law with the realities of 

the 21st century. 

The United States continues to welcome individuals to our nation. The admission of foreign 

nationals on a temporary basis is central to our economic and social policies. Sharing our 

culture and values with persons from other nations fosters global understanding and 

cooperation. In many cases, knowledge of our culture and values leads persons from other 

lands to desire to join in our nation as immigrants and citizens. In other instances, they return 

to their homelands richer for having known us, as we are enriched by knowing them.
84
85

Appendix A. Nonimmigrant Visa Categories 

Foreign Government Officials

A-1 Ambassador, Public Minister, Career Diplomat, Consular Officer, Head of State, 

and immediate family members 

A-2 Other foreign government officials or employees coming to the United States and 

immediate family members. Includes technical and support staff of A-1 

A-3 Attendants, Servants and Personal employees of A-1 and A-2 and immediate 

family members 

Temporary Visitors

B-1 Temporary visitor for business 

B-2 Temporary visitor for pleasure 

GB Temporary visitor for business, Guam 

GT Temporary visitor for pleasure, Guam 

WB Temporary visitor for business, visa waiver 

WT Temporary visitor for pleasure, visa waiver 

BE Bering Straits agreement entrants 

Aliens in Transit

C-1 Alien in transit (direct and continuous travel through the United States) 

C-1D Combined transit and crewman visa 

C-2 Alien in transit to the U.N. headquarters 

C-3 Foreign government official, members of immediate family, attendants, servants 

or other personal employee of official in transit through the United States 

Crewmen

D-1 Crewmen departing on same vessel of arrival, crewmen departing on same 

aircraft or same airline 

D-2 Crewmen departing on vessel other than one of arrival. Airmen departing on 

different airline that one of arrival 

Treaty Traders and Treaty Investors

E-1 Treaty trader, spouse, and children 

E-2 Treaty investor, spouse, and children coming to develop and direct a bon fide 

enterprise in which he/she has invested a substantial amount of capital 

E-3 Australian nationals working in specialty occupations 

Academic Students

F-1 Academic student 

F-2 Spouse or child of student 

F-3 Border commuter student 
86

Appendix A, continued 

Foreign Government Officials to International Organizations

G-1 Principal resident representative of recognized foreign member government to 

international organization, staff, and immediate family members 

G-2 Other temporary representative of recognized foreign member government to 

international organization and immediate family members 

G-3 Representative of nonrecognized or nonmember foreign government to 

international organization and immediate family members 

G-4 International organization officer or employee and immediate family members 

G-5 Attendant, servant, or personal employee of G-1 through G-4 and immediate family 

members 

Temporary Workers

H-1B1 Specialty occupation, entering under free trade agreements with Chile and Singapore 

H-1B Specialty occupation (professionals), DOD workers, fashion models 

H-1C Nurses going to work for up to 3 years in health professional shortage areas 

H-2A Temporary or seasonal agriculture workers 

H-2B Nonagricultural temporary or seasonal workers 

H-3 Trainee or participant in special education exchange visitor program 

H-4 Spouse or child of H-1, H-2, H-3 

Foreign Media Representatives

I Representative of foreign information media, spouse, and children 

Exchange Visitors

J-1 Exchange visitor 

J-2 Spouse or minor child of exchange visitor 

Fiancé(e)/Spouse of U.S. Citizen

K-1 Fiancé or fiancée of U.S. Citizen 

K-2 Minor child of K-1 

K-3 Spouse of U.S. Citizen (under LIFE Act provisions) 

K-4 Child of K-3 

Intracompany Transferees

L-1A Intracompany transferee (executive, managerial and specialized personnel) 

entering to continue employment with the same employer or a subsidiary or 

affiliate thereof 

L-1B Executive, manager or has specialized skill of international firm 

L-2 Spouse or child of L-1 

Vocational and Language Students

M-1 Vocational or non-academic student 

M-2 Spouse or child of M-2 

M-3 Border commuter student 

Parent/Child of Special Immigrants

N-8 Parent of alien classified SK-3 “special immigrant” 

N-9 Child of N-8, SK-1, SK-2, or SK-4 “special immigrant” 
87

Appendix A, continued 

North Atlantic Treaty Organization

NATO-1 Principal permanent representative of member state to NATO and resident 

members of official staff or immediate family 

NATO-2 Other representatives of member state; dependents of member of a force 

entering in accordance with the provisions of NATO Status-of-Forces agreement; 

members of such force if issued visas 

NATO-3 Official clerical staff accompanying representative of member state to NATO or 

immediate family 

NATO-4 Official of NATO other than those qualified under NATO-4, employed on behalf of 

NATO and immediate family 

NATO-5 Expert other than NATO officials qualified under NATO-4, employed on behalf of 

NATO and immediate family 

NATO-6 Member of civilian component who is either accompanying a Force entering in 

accordance with the provision of the NATO Status-of-Forces agreement; 

attached to an Allied headquarters under the protocol on the Status of 

International Military headquarters set up pursuant to the North Atlantic Treaty; 

and their dependents 

NATO-7 Servant or personal employee of NATO-1 through NATO-6, or immediate family 

Workers with Extraordinary Abilities

O-1 Aliens of extraordinary ability 

O-2 Accompanying alien who is coming solely to assist in the artistic or athletic 

performance by an O-1 

O-3 Spouse and/or child of O-1 and O-2 

Athletes and Entertainers

P-1 Internationally recognized professional artists, athletes, entertainers, and 

“essential 

 support personnel” 

P-2 Artist or entertainer in reciprocal exchange programs 

P-3 Artists and entertainers coming to perform, teach, or coach a culturally unique 

 program. Relates to initials and members of a group. 

P-4 Spouses and/or children of P-1, P-2, P-3 

International Cultural Exchange Visitors

Q-1 International cultural exchange visitor 

Q-2 Irish Peace Process cultural and training program (Walsh Visas) 

Q-3 Spouse or child of Q-2 

Religious Workers

R-1 Religious workers 

R-2 Spouse or child of R-1 
88

Appendix A, continued 

Witness or Informant

S-5 Alien witness or informant possessing critical, reliable information concerning a 

criminal organization or enterprise whose presence in the United States is 

required for the successful investigation or prosecution of the criminal 

organization 

S-6 Alien witness or informant possessing critical reliable information about terrorist 

organization, enterprise, or operation, who will be placed in danger as a result of 

supplying that information; and is eligible to receive a reward under separate U.S. 

State Department legislation 

S-7 Spouse, unmarried sons and daughters, and parents of witness or informant 

Victims of a Severe Form of Trafficking in Persons

T-1 Victim of a severe form of trafficking in persons 

T-2 Spouse of a victim of a severe form of trafficking in persons 

T-3 Child of victim of a severe form of trafficking in persons 

T-4 Parent of a victim of a severe form of trafficking in persons (if T-1 victim is under 

21) 

North American Free Trade Agreement

TN Trade NAFTA principal – Canadian/Mexican citizen seeking temporary entry to 

engage in activities as a professional level pursuant to the North American Free 

Trade Agreement 

TD Spouse or child of TN 

Victims of Certain Crimes

U-1 Victim of certain criminal activity 

U-2 Spouse of U-1 

U-3 Child of U-1 

U-4 Parent of U-1, if U-1 is under 21 

Certain Second Preference Beneficiaries

V-1 Spouse of an LPR who is the principal beneficiary of a family-based petition 

which was filed prior to December 21, 2000, and has been pending for at least 3 

years 

V-2 Child of an LPR who is the principal beneficiary of a family-based visa petition 

that was filed prior to December 21, 2000, and has been pending for at least 3 

years 

V-3 The derivative child of a V-1 or V-2 
89

Appendix B. Summary of Selected Nonimmigrant Benefits 

Category Work Authorization Initial Length 

of Stay 

Extension 

of Stay 

Annual 

Cap 

Adjustment 

of Status 

A-1, A-2 Status is for temporary entry as 

foreign government official; may 

not seek other employment 

D/S N/A None N/S 

A-1 and A-2 

dependents 

Yes, if formal bilateral agreements 

or informal defacto reciprocal 

arrangements are in place, and 

with Department of State (DOS) 

recommendation. Must apply to 

USCIS for work authorization if 

approved by DOS. Work 

authorization may be granted in 

increments of NMT 3 years. 

D/S N/A None N/S 

A-3 Status is for temporary entry as 

employee of A-1 or A-2; may not 

seek other employment. 

NMT 3 years Increments 

of NMT 2 

years 

None N/S 

B-1 Status is for temporary entry for 

business; may not seek gainful 

employment in the United States. 

NMT 1 year Increments 

of NMT 6 

months 

None N/S 

B-2 No NMT 1 year; 

minimum approval 

of 6 months 

Increments 

of NMT 6 

months 

None N/S 

C-2 Status is for temporary entry in 

transit to the United Nations, other 

employment is not permitted 

Maximum of 29 

days 

No None Not 

permitted 

C-3 Status is for temporary entry in 

transit as crewmember, other 

employment is not permitted 

Maximum of 29 

days 

No None Not 

permitted 

D-1, D-2 May be employed only in a 

crewmember capacity on the 

vessel or aircraft of arrival, or of 

the same transportation company. 

May not be employed in 

connection with domestic craft. 

May perform crewmember duties 

through stopovers on international 

flights for any U.S. carrier where 

such flight uses a single aircraft 

and has an origination or 

destination point outside the 

United States. 

N/S N/S N/S Not 

permitted 

E-1, E-2 May be employed only by the 

treaty-qualifying company through 

which the alien attained the status. 

NMT 2 years Increments 

of NMT 2 

years 

None Permitted 

E-1, E-2 

dependents 

Not work authorized, except for 

alien spouse or unmarried son or 

daughter of an alien employee of 

the Coordination Council of North 

American Affairs (E-1) who may 

apply to USCIS apply for work 

authorization 

Same as for 

principal alien 

Same as for 

principal 

None Permitted 

F-1 With permission of USCIS D/S N/A None Permitted 

F-2 Not work authorized D/S of F-1 N/A None Permitted 

F-3 

G-1, G-2, 

G-3, G-4 

May only be employed by the 

foreign government entity or the 

international organization through 

which the alien attained the status 

D/S N/A None N/S 

Sources: 8 CFR §§ 214.2, 214.6, 214.11, 214.15; 245.1, 274a.12. D/S=Duration of Status; NTE = not to exceed, NMT = 

not more than, N/A= not applicable, N/S = not specified in CFR 
90

Appendix B. Summary of Selected Nonimmigrant Benefits (continued) 

Category Work Authorization Initial Length 

of Stay 

Extension 

of Stay 

Annual 

Cap 

Adjustment 

of Status 

G-1, G-2, 

G-3, G-4 

Dependent 

Yes, if formal bilateral agreements 

or informal defacto reciprocal 

arrangements are in place, and 

with DOS recommendation. Must 

apply to USCIS. 

D/S N/A None N/S 

G-5 Status is for temporary entry in the 

employ of G-1, G-2, G-3, or G-4 

principal; may not seek other 

employment in the United States 

NMT 3 years Increments 

of NMT 2 

years 

None N/S 

H-1B1 

Professionals 

from Chile and 

Singapore 

Status for professionals entering 

under trade agreements; may not 

seek other employment in the 

United States 

Maximum of 1 

year 

Increments 

of 1 year; 

not limit on 

number of 

extensions 

Included 

in H-1B 

cap 

Dual intent 

not permitted 

H-1B 

Specialty 

occupations 

May be employed only by the 

petitioner through whom the status 

was obtained. 

Period of 

approved petition. 

Maximum stay is 

6 years 

Up to 3 

years. 

See note 1 

65,000 

for all 

H-1B 

Permitted 

See notes 1, 

6 

H-1B 

Research and 

development 

May be employed only by the 

petitioner through whom the status 

was obtained. 

Period of 

approved petition. 

Maximum stay is 

10 years 

Up to 5 

years 

See note 1 

65,000 

for all 

H-1B 

Permitted 

See notes 1, 

6 

H-1C May be employed only by the 

petitioner through whom the status 

was obtained. 

Maximum stay is 

3 years 

None 

beyond 3 

years 

500 Permitted 

See notes 1, 

6 

H-2A May be employed only by the 

petitioner through whom the status 

was obtained. 

Period of 

approved petition; 

may hold this 

status for a total 

of 3 years 

See note 2 None See note 2 

H-2B May be employed only by the 

petitioner through whom the status 

was obtained. 

Period of 

approved petition 

See note 3 66,000 See note 3 

H-3 May be employed only by the 

petitioner through whom the status 

was obtained. 

Period of 

approved petition. 

Total stay as H-3 

trainee is 2 years; 

18 months for 

special education 

program 

See note 3 50 for 

special 

educ. 

programs 

See note 3 

H-4 Not work authorized Same as for 

principal alien 

Same as for 

principal 

None N/S 

I Status is for temporary entry as 

representative of foreign media; 

may not change medium or 

employer w/o USCIS permission 

Duration of 

employment 

N/A None N/S 

I 

dependents 

Not work authorized Same as for 

principal alien 

Same as for 

principal 

None N/S 

J-1 

May be employed only by the 

exchange visitor program sponsor 

or appropriate designee and within 

the guidelines of the program 

approved by DOS as set forth in 

the Form DS-2019 

Period specified 

on SEVIS Form 

DS-2019 (plus 30 

days for travel) 

Must submit 

new Form 

DS-2019 

None Permitted 

J-2 Yes, with permission from USCIS. 

Employment will not be authorized 

if such income is needed to 

support the J-1 principal alien. 

Period specified 

on J-1’s SEVIS 

Form DS-2019 

Period 

specified on 

J-1’s Form 

DS-2019 

None N/S 
91

Appendix B. Summary of Selected Nonimmigrant Benefits (continued) 

Category Work Authorization Initial Length 

of Stay 

Extension 

of Stay 

Annual 

Cap 

Adjustment 

of Status 

K-1 Yes. Must apply to USCIS for 

work authorization. 

Visa is valid for 1 

entry. Marriage 

must take place 

within 90 days of 

entry 

No None Required 

K-2 Yes. Must apply to USCIS for 

work authorization. 

Same as for 

principal K-1 

No None Required 

K-3 Yes. Must apply to USCIS for a 

document evidencing employment 

authorization. 

Admitted for a 

period of 2 years 

Up to 

2-year 

intervals 

See note 4 

None Permitted 

K-4 Yes. Must apply to USCIS for a 

document evidencing employment 

authorization. 

Admitted for a 

period of 2 years, 

or until age 21 

Up to 

2-year 

intervals 

See note 4 

None Permitted 

L-1 May be employed only by the 

petitioner through whom the status 

was obtained. 

Total stay: 

specialized 

 knowledge, 

 5 years; 

managerial, 

 7 years 

Increments 

of up to 2 

years, no 

extension 

beyond 

max. stay 

None Permitted 

L-2 Not unless he or she has been 

granted employment authorization. 

Same as principal 

L-1 nonimmigrant 

Same as 

principal 

None Permitted 

M-1 Employment other than for 

practical training is not authorized. 

Practical training may be 

authorized only after completion of 

the course of study and if 

approved by USCIS. Proposed 

employment must be for practical 

training related to the student’s 

course of study, and designated 

school official must determine that 

comparable employment is not 

available in student’s country of 

residence. One month of practical 

training may be authorized for 

every 4 months of full-time study 

completed, with a maximum of 6 

months total for practical training. 

M-1 border commuter students are 

not authorized to accept any 

employment for practical training. 

Specified period 

necessary to 

complete course 

of study indicated 

on Form I-20, plus 

practical training 

following 

completion of 

course of study, 

plus an additional 

30 days to depart 

the United States, 

but NTE a total 

period of 1 year 

An M-1 border 

commuter student 

is not entitled to 

the additional 30-

day period of stay. 

Cumulative 

extensions 

limited to 3 

years from 

start date, 

plus 30 

days 

None N/S 

M-2 Not work authorized Same as M-1 

principal alien 

Same as 

principal 

None See note 5 

M-3 

N-8 and N-9 Yes, with no restrictions as to 

location or type of employment 

NTE 3 years 

Status terminates 

on the date the 

child no longer 

qualifies as a child 

Increments 

of up to but 

NTE 3 

years 

None Permitted 

O-1 May be employed only by the 

petitioner through whom the status 

was obtained. 

Period specified 

on petition, NTE 3 

years 

Increments 

up to 1 year 

None Permitted 

See note 6 

O-2 Status is for temporary entry to 

assist O-1 nonimmigrant; may not 

accept other employment. 

Period of time 

necessary to 

assist O-1 alien, 

NTE 3 years 

Increments 

up to 1 year 

None N/S 

O-3 Not unless granted employment 

authorization by USCIS 

Same as O-1 

beneficiary 

Same as 

O-1 

None N/S 

P-1 

individual 

athlete 

May be employed only by the 

petitioner through whom the status 

was obtained. 

Petition valid for a 

period up to 5 

years 

Up to 5 

years for a 

total stay of 

10 years 

None Permitted 

See note 6 
92

Appendix B. Summary of Selected Nonimmigrant Benefits (continued) 

Category Work Authorization Initial Length 

of Stay 

Extension 

of Stay 

Annual 

Cap 

Adjustment 

of Status 

P-1 

athletic 

team 

May be employed only by the 

petitioner through whom the status 

was obtained.

None Permitted 

See note 6 

P-1 

entertainment 

group 

May be employed only by the 

petitioner through whom the status 

was obtained.

Petition valid for 

time to complete 

competition or 

event, NTE 1 year 

Up to 1 

year to 

complete 

same event 

or activity 

for which 

admitted 

None Permitted 

See note 6 

P-1 

support 

alien 

Status is for temporary entry to 

assist P-1 nonimmigrant alien; 

may not accept other employment. 

Petition valid for 

time necessary to 

complete the 

event, activity, or 

performance of 

P-1 alien, NTE 1 

year 

Same as 

P-1 alien 

support 

alien is 

assisting 

None Not 

permitted 

P-2 

reciprocal 

exchange 

program 

May be employed only by the 

petitioner through whom the status 

was obtained. 

None Permitted 

See note 6 

P-2 

support 

alien 

Status is for temporary entry to 

assist P-2 nonimmigrant alien; 

may not accept other employment. 

Petition valid for 

time necessary to 

complete the 

event, activity, or 

performance of 

P-2 alien, NTE 1 

year 

Up to 1 

year to 

complete 

same event 

or activity 

for which 

admitted 

None Not 

permitted 

P-3 

culturally 

unique 

program 

May be employed only by the 

petitioner through whom the status 

was obtained. 

None Permitted 

See note 6 

P-3 

support 

alien 

Status is for temporary entry to 

assist P-3 nonimmigrant alien; 

may not accept other employment. 

Petition valid for 

period of time 

necessary to 

complete the 

event, activity, or 

performance of 

P-3 alien, NTE 1 

year 

Up to 1 

year to 

complete 

same event 

or activity 

for which 

they were 

admitted. 

None Not 

permitted 

P-4 Not unless granted employment 

authorization 

Same as for P-1, 

P-2, or P-3 alien 

beneficiary 

Same as for 

alien 

beneficiary 

None Permitted 

See note 6 

Q-1 May be employed only by the 

petitioner through whom the status 

was obtained. 

Duration of 

program, NTE 15 

months, plus 30 

days for travel 

NTE total 

stay of 15 

months 

None N/S 

Q-2 May be employed only by the 

petitioner through whom the status 

was obtained. 

Duration of 

program, or 36 

months, whichever 

is shorter 

NTE total 

stay of 36 

months 

N/S 

Q-3 Not unless also designated as a 

Q-2 nonimmigrant 

Same as for Q-2 

principal alien 

Same as for 

principal 

4,000 

admitted 

annually, 

including 

spouses 

and 

children 

N/S 

R-1 May be employed only by the 

religious organization through 

whom the status was obtained.

Initial stay shall 

not exceed 3 

years, with a total 

stay of 5 years 

Up to 2 

years 

See note 7 

None N/S 

R-2 Not work authorized Same as for 

principal alien 

Same as 

principal 

None N/S 

NATO 1-5 May be employed only by NATO N/A – Normally 

exempt from 

inspection 

None N/S 

NATO 1-5 

dependent 

Yes; may accept, or continue in, 

unrestricted employment based on 

bilateral agreement with favorable 

recommendation by the NATO 

Supreme Allied Commander, 

Atlantic (SACLANT). Must apply 

for employment authorization. 

N/A – Normally 

exempt from 

inspection 

None N/S 

NATO-6 May be employed only by NATO D/S N/A None N/S 

NATO-7 Status is for temporary entry as 

employee of NATO 1-6 

nonimmigrant 

NMT 3 years Increments 

of NMT 2 

years 

None N/S 
93

Appendix B. Summary of Selected Nonimmigrant Benefits (continued) 

Category Work Authorization Initial Length 

of Stay 

Extension 

of Stay 

Annual 

Cap 

Adjustment 

of Status 

S-5 May apply for employment 

authorization with USCIS 

Time specified by 

requesting law 

enforcement 

agency – NTE 3 

years 

May not be 

extended 

200 May not 

change to 

other nonimmigrant 

category 

S-6 May apply for employment 

authorization with USCIS 

Time specified by 

requesting law 

enforcement 

agency – NTE 3 

years 

May not be 

extended 

50 May not 

change to 

other nonimmigrant 

category 

S-7 May apply for employment 

authorization with USCIS 

Same as for 

principal alien 

Same as for 

principal 

N/A May not 

change to 

other nonimmigrant 

category 

T-1 Yes, if authorized by USCIS. 

Employment authorization expires 

when status as T nonimmigrant 

expires. 

3 years maximum 

stay 

May not be 

extended, 

except for 

those who 

timely apply 

for 

adjustment 

of status 

5,000 Permitted – 

after 3 years 

T-2, T-3, 

and T-4 

May apply for employment 

authorization with USCIS. 

Employment authorization expires 

when status as T nonimmigrant 

expires. 

3 years maximum 

stay 

May not be 

extended, 

except for 

those who 

timely apply 

for 

adjustment 

of status 

N/A Permitted – 

after 3 years 

TN Must be engaged in business 

activities at a professional level in 

accordance with NAFTA 

Changes made in 

2004 – need to 

check 

2004 

changes 

None N/S 

TD Status is for temporary entry as 

spouse or children of business 

professional under NAFTA; may 

not seek other employment in the 

United States 

N/S N/S None N/S 

U-1 Yes, if authorized by USCIS 

See note 8 

N/S N/S 10,000 Permitted – 

after 3 years 

U-2 – U-4 Yes, if authorized by USCIS Regulations pending. After 3 yrs. 

V-1 NTE 2 years NTE 2 

years 

None Permitted 

V-2, V-3 

May apply to USCIS; employment 

authorization may be granted to 

aliens in V nonimmigrant status 

valid for a period equal to the 

alien’s authorized admission as a 

V nonimmigrant NTE 2 years 

NTE 2 years, or 

the day before the 

alien’s 21st

birthday 

NTE 2 

years, or 

the day 

before alien 

turns 21 

None Permitted 

BE Not authorized. 90 days No None 

WB Not authorized. 90 days No None 

WT Not authorized. 90 days No None 

GB Not authorized. 15 days No None 

GT Not authorized. 15 days No None 

Notes for Appendix B: 

1. H-1B1 and H-1B3 aliens who have spent 6 years in the United States, and H-1B2 aliens who 

have spent 10 years in the United States, may not seek extension, change of status, or seek 

to be readmitted to the United States unless he or she has resided and been physically 
94

present outside the United States, except for brief trips for business or pleasure, for the 

immediate prior year. 8 CFR § 214.2(h)(13)(iii) 

2. An individual who has held H-2A status for a total of 3 years may not again be granted H-2A 

status, or other nonimmigrant status based on agricultural activities until he or she remains 

outside the United States for an uninterrupted period of 6 months. 

8 CFR § 214.2(h)(5)(viii)(C) 

3. An H-2B alien who has spent 3 years in the United States, an H-3 alien participant in a 

special education program who has spent 18 months in the United States, and an H-3 alien 

trainee who has spent 24 months in the United States may not seek extension, change status, 

or be readmitted to the United States unless the alien has resided and been physically 

present outside the United States for the immediate prior 6 months. 

8 CFR § 214.2(h)(13)(iv) 

4. K-3 and K-4 aliens may apply for extensions of stay if they can show that one of the following 

has been filed with USCIS: (a) Form I-130, Petition for Alien Relative; (b) application for an 

immigrant visa; or (c) Form I-485, application for adjustment to that of Permanent Residence. 

8 CFR § 214.2(k)(10) 

5. The M-2 spouse may not engage in full time study, and the M-2 child may only engage in full 

time study if in an elementary or secondary school. The M-2 spouse and child may engage 

in study that is avocational or recreational in nature. If M-2 alien desires to engage in other 

full-time study he or she must apply for a change of nonimmigrant classification to F-1, J-1, or 

M-1. 8 CFR § 214.2(m)(17) 

6. Nonimmigrant aliens in H-1B, H-1C, O-1, P-1, P-2, and P-3 status (with the exception of P 

nonimmigrant support aliens) may legitimately come to the United States for a temporary 

period as a nonimmigrant and depart voluntarily at the end of his or her authorized stay and, 

at the same time, lawfully seek to become a permanent resident of the United States. 8 CFR 

§ 214.2(h)(16), 8 CFR § 214.2 (o) (13), 8 CFR § 214.2 (p)(15) 

7. An alien who has spent 5 years in the United States as an R nonimmigrant, may not be 

readmitted to the United States under the R visa classification unless the alien has resided 

and been physically present outside the United States for the immediate prior year, except for 

brief visits for business or pleasure. 8 CFR § 214.2 (r)(7) 

8. Regulations for the U nonimmigrant category have not yet been published. Interim guidance 

was issued by USCIS in October 2003. 

 
95

ENDNOTES

Notes to Section I 

1 U.S. Citizenship and Immigration Services (USCIS), Office of Business Liaison, Employer 

Information Bulletin 2, December 2004. Immigrant intent and dual intent will be described 

below in Section V. 

2 Information in this section comes primarily from the USCIS Web page on “Temporary 

Visitors,” accessed at <http://uscis.gov/graphics/services/tempbenefits/index.htm.> The 

nonimmigrant categories are listed in section 101(a) (15) of the Immigration and Nationality Act 

(INA) and codified at 8 C.F.R. § 214.2. 

3 Agreement Concerning Mutual Visits by Inhabitants of the Bering Straits Region, Sept. 23, 

1989, U.S.-U.S.S.R., T.I.A.S. No. 11,455. 

4 Pub. L. No. 99-396 (Aug. 27, 1986). 

5 8 C.F.R. § 212.1(e). 

6 8 C.F.R. § 212.1(e); 52 Fed. Reg. 48,082 (Dec. 18, 1987). 

7 U.S. Customs and Border Protection, “Documentary Requirements for Canadian and 

Mexican Residents,” accessed at <http://www.cbp.gov/xp/cgov/travel/id_visa/ 

req_canada_mexico.xml.> 

8 8 C.F.R. § 212.1(c). This border crossing area is extended to 75 miles for much of 

Arizona. 

9 Immigration and Nationality Act (INA), § 101(a)(15)(H)(i); 8 C.F.R. § 214.2(h)(1)(ii)(B). A 

specialty occupation is an occupation that requires the theoretical and practical application of a 

body of highly specialized knowledge, in fields including but not limited to architecture, 

engineering, social sciences, medicine and health, education, law, theology, and the arts , and 

which requires the attainment of a bachelor’s degree or higher in a specific specialty, or its 

equivalent. 8 C.F.R. § 214.2 (h)(4)(ii). 

10 INA, § 101(a)(15)(H)(i); 8 C.F.R. 214.2(h)(1)(ii)(A). This program was legislatively 

authorized for 4 years, with a sunset date of September 20, 2004. 

11 INA, § 101(a)(15)(H)(ii)(a); 8 C.F.R. 214.2(h)(1)(ii)(C). 

12 INA, § 101(a)(15)(H)(ii)(b); 8 C.F.R. 214.2(h)(1)(ii)(D). 

13 8 C.F.R. 214.2(h)(1)(ii)(E). Also included are special education exchange visitor programs 

which provide practical training and experience in the education of children with physical, 

mental, or emotional disabilities. This category does not apply to graduate medical training. 

14 8 C.F.R. 214.2(h)(7)(ii)(A). 

15 INA, § 101(a)(15)(J). 

16 Pub. L. No. 87-256, 75 Stat. 257. 

17 U.S. Department of State, “The Exchange Visitor Program: Alternatives to the Exchange 

Visitor Program,” <http://exchanges.state.gov/education/jexchanges/participation/ 

alternatives.htm.> 

18 U.S. Department of State, “Exchange Visitor (J) Visas,” accessed at 

<http://travel.state.gov/visa/temp/types_1267.html.> 
96

19 8 C.F.R. 214.2(j); U.S. Department of State, “Exchange Visitor (J) Visas,” accessed at 

<http://travel.state.gov/visa/temp/types_1267.html.> See Patsy Yung, “Exchange Categories 

(J&Q),” pp. 519-531in American Immigration Lawyers Association (AILA), Immigration & 

Nationality Law Handbook, 2005-06 Edition (Washington, DC: AILA, 2005), p. 520. 

20 INA, § 101(a)(15)(Q)(i); 8 C.F.R. 214.2(q)(1)(i). 

21 See 8 C.F.R. § 214.2(q). 

22 INA, § 101(a)(15)(Q)(ii). See also 8 C.F.R. 214.2(q)(1)(ii). 

23 The program was amended in 2004 by Public Law 108-449 which, among other things, 

reduced the period of stay for Q-2 visa holders from 36 to 24 months and increased the 

minimum age to 21. Walsh Visa Program, “Program Legislation,” accessed at 

<http://www.walshvisa.net/Public/legislation.> 

24 INA, § 101(a)(15)(L); 8 C.F.R. 214.2(l). 

25 INA, § 101(a)(15)(O); 8 C.F.R. 214.2(o). 

26 8 C.F.R. § 214.2(p)(1)(ii)(A). 

27 8 C.F.R. § 214.2(p)(3). 

28 8 C.F.R. § 214.2(8)(iii)(A)-(B). 

29 8 C.F.R. § 214.2(p). 

30 8 C.F.R. § 214.2(p). 

31 The Code of Federal Regulations defines a “religious denomination” as a religious group or 

community of believers having some form of ecclesiastical government, a creed or statement of 

faith, some form of worship, a formal or informal code of doctrine and discipline, religious 

services and ceremonies, established places of religious worship, and religious congregations, or 

comparable indicia of a bona fide religious denomination. For the purposes of this definition, an 

inter-denominational religious organization which is exempt from taxation pursuant to section 

501(c)(3) of the Internal Revenue Code of 1986 will be treated as a religious denomination. 8 

C.F.R. § 214.2(r)(2). 

32 INA, § 101(a)(15)(R); 8 C.F.R. § 214.2(r). 

33 The Immigration and Nationality Act of 1924 specified that treaty merchants could stay 

without any time constraints as long as they maintained their nonimmigrant status and intended 

to depart when such status ended. A 1932 amendment clarified that the trade involved must be 

between the United States and the treaty country. Irving Appleman, “Treaty Trader Status 

Under the Immigration Laws,” INS Monthly Review, vol. VI, no. 1 (July 1948), pp. 3-7. The 1952 

INA created the treaty investor status in which aliens were entitled by treaty to enter the 

United States solely to develop and direct the operation of enterprises in which they have 

invested or are in the process of investing a substantial amount of capital. U.S. Commission on 

Immigration Reform, Legal Admissions: Temporary, p. 129.

34 See 8 C.F.R. § 214.2(e). 

35 8 C.F.R. § 214.2(e)(19)(ii). 

36 Pub. L. No. 109-13, Division B, § 501 (May 11, 2005). 

37 Id. See “Emergency Supplemental Appropriations Act for Defense, the Global War on 

Terror, and Tsunami Relief Act, 2005 – Conference Report,” 151 Cong. Rec. S4816-02 at S4839 
97

(May 10, 2005); “REAL ID Now the Law,” Interpreter Releases, vol. 82, no. 20 (May 16, 2005), p. 

813, at 816. 

38 Act of December 8, 1993, 107 Stat. 2057. 

39 Prior to the implementation of NAFTA, the U.S.-Canada Free Trade Agreement (CFTA) 

permitted the entry of professionals from Canada in the TC nonimmigrant category. The CFTA 

was suspended when NAFTA entered into force and authorized the issuance of visas to 

Mexicans and Canadians as TN nonimmigrants. U.S. Department of Homeland Security (DHS), 

Office of Immigration Statistics, 2002 Yearbook of Immigration Statistics, October 2003, table 26, 

note 10, p. 120. 

40 8 C.F.R. § 214.6 (d), (j). 

41 Immigration and Naturalization Service (INS), Inspectors Field Manual, ch. 15.5(a), 

referenced in INS, NAFTA Handbook, November 1999, p. 42. 

42 See generally 8 C.F.R. § 214.6. 

43 NAFTA originally imposed additional controls on Mexican citizens requesting TN status. 

These controls expired on January 1, 2004. Prior to that date, Mexican TNs were required to 

apply for a visa at a U.S. consulate and to have a labor certification. A numerical cap of 5,500 on 

Mexican TNs also was removed. DHS, “Eliminating the Numerical Cap on Mexican TN 

Nonimmigrants,” 69 Fed. Reg. 11,287 (March 10, 2004); USCIS, Memorandum for Regional 

Directors, Service Center Directors, and District Directors, from William R. Yates, Associate 

Director of Operations, re: Lifting of Numerical Cap on Mexican NAFTA Nonimmigrant 

Professionals (“TN”) and Free Trade Agreements with Chile and Singapore, January 8, 2004. 

44 See INS, Inspectors Field Manual, ch. 15.5(f)(4), referenced in INS, NAFTA Handbook, 

November 1999, p. 51. 

45 United States-Chile Free Trade Agreement Implementation Act, Pub. L. No. 108-77, 117 

Stat. 909 (Sept. 3, 2003); United States-Singapore Free Trade Agreement Implementation Act, 

Pub. L. No. 108-78, 117 Stat. 948 (Sept. 3, 2003). 

46 Pub. L. No. 108-77, Title IV, § 402; Pub. L. No. 108-78, Title IV, § 402. See “President 

Signs Fast Track Trade Acts with Expanded Nonimmigrant Provisions,” Interpreter Releases, vol. 

80, no. 35 (Sept. 15, 2003), p. 1295. 

47 U.S. Department of State, “H-1B1 Temporary Entry of Nonimmigrant Professionals,” 

accessed at <http://travel.state.gov/visa/laws/telegrams/telegrams_1391.html#.> 

48 INA, § 101(a)(15)(F); INA, § 101(a)(15)(M). 

49 INA, § 101(a)(15)(A); 8 C.F.R. § 214.2(a). 

50 INA, § 101(a)(15)(G)(i); 8 C.F.R. § 214.2(g). 

51 INA, § 101(a)(15)(G)(ii)-(iii); 8 C.F.R. § 214.2(g). 

52 INA, § 101(a)(15)(G)(iv)-(v); 8 C.F.R. § 214.2(g). 

53 INA, § 101(a)(15)(I). 

54 Charles Gordon and Harry N. Rosenfield, Immigration Law and Procedure (New York: 

Matthew Bender, 1980), p. 2-121. 

55 U.S. Department of State, Bureau of Consular Affairs, Visa Services, “Foreign Media, 

Press, Radio,” accessed at <http://travel.state.gov/visa;media.htm.> 
98

56 Ibid. 

57 “Agreement Between the Parties to the North Atlantic Treaty Regarding the Status of 

Their Forces,” (NATO Status of Forces Agreement), June 1951 (London). NATO is composed 

of nations signatory to the North Atlantic Treaty. 

58 8 C.F.R. § 214.2(s). 

59 8 C.F.R. § 214.2(s). 

60 8 C.F.R. § 214.2(c). 

61 U.S. Embassy – Buenos Aires, Consular Section, “Transit & Crew Visas,” accessed at 

<http://usembassy.state.gov/posts/ar1/wwwhc1d.html.> 

62 68 Fed. Reg. 46,926 (Aug. 7, 2003). See also, U.S. Customs and Border Protection, 

Transit without Visa (TWOV) and International-to-International (ITI) Transit Programs and 

Progressive Clearance Program, <http://www.cbp.gov/xp/cgov/travel/leavingarrivinginUS/ 

iti_transit.xml;> U.S. Department of Homeland Security, “Homeland Security and Department 

of State Take Immediate Steps to Make Air Travel Even Safer,” press release, Aug. 2, 2003, 

accesses at <http://travel.state.gov/visa/visa_1248.html.> 

63 8 C.F.R. § 214.2(d). 

64 U.S. Embassy – Buenos Aires, Consular Section, “Transit & Crew Visas,” accessed at 

<http://usembassy.state.gov/posts/ar1/wwwhc1d.html;> Embassy of the United States, Athens, 

Greece, Consular Services, “Information for Seamen,” accessed at <http://www.usembassy.gr/ 

consular/nonimm_seamen.htm.> 

65 U.S. Embassy, Italy, “C1/D Visas,” last updated Oct. 5, 2004, accessed at 

<http://usembassy.it/cons/visa/VIS-3-en.htm.> 

66 INA, § 101(a)(15)(K)(i); 8 C.F.R. 214.2(k)(1). 

67 USCIS, “How Do I Bring My Fiancé(e) to the United States?” accessed at 

<http://uscis.gov/graphics/howdoi/fiance.htm.>

68 INA, § 101(a)(15)(K)(ii); 8 C.F.R. 214.2(k)(7). 

69 To receive a K-3 visa a person must have entered into a valid marriage with a citizen of 

the United States and must be seeking to enter the United States to await the approval of a 

relative petition for permanent resident status (a Form I-130 that was filed on his or her behalf 

by the U.S. citizen spouse). In addition, the K-3 nonimmigrant must have an approved Form I129F, Petition for Alien Fiancé. The K-3 and K-4 nonimmigrant classifications do not confer 

immigrant status. To obtain such status, once the person is in the United States he or she must 

file a Form I-485, Application for Adjustment to Permanent Residence. A K-4 nonimmigrant 

must have a Form I-130 filed on his or her behalf by his or her U.S. citizen parent (or 

stepparent) and must file a Form I-485. K-3 and K-4 nonimmigrants receive lawful permanent 

resident status when both the Form I-130 petition and their Form I-485 application have been 

approved. See USCIS, “How Do I Become a K-Nonimmigrant as the Spouse or Child of a U.S. 

Citizen? (K-3 and K-4 Visa Classifications),” accessed at <http://uscis.gov/graphics/howdoi/ 

hdiknonimm.htm.> 

70 Ibid. 

71 8 C.F.R. § 214.15(a). 
99

72 8 C.F.R. § 214.15(c). See “INS Implements LIFE Act’s ‘V’ Nonimmigrant Classification for 

Certain Spouses and Children of LPRs; State Dept. Issues Cable,” Interpreter Releases, vol. 78, no. 

35 (Sept. 10, 2001), p. 1440. 

73 Pub. L. No. 99-603, 100 Stat. 3359 (Nov. 6, 1986). 

74 U.S. House of Representatives, Judiciary Committee, report on the Immigration Reform 

and Control Act of 1986, H.R. REP. NO. 99-682, Part I (July 16, 1986), reprinted in 1986 

U.S.C.C.A.N. 5649 at 5681. 

75 INS, 1990 Statistical Yearbook, p. A.1-19; U.S. Commission on Immigration Reform, Legal 

Admissions: Temporary, p. 174. See also, Alan C. Nelson, “A Balanced Approach to Immigration 

Reform,” INS Reporter, Spring 1983, p. 4. 

76 Memorandum for Regional Directors, Service Center Directors, and District Directors 

from Michael A. Pearson, Executive Associate Commission for Field Operations, re: Special 

Immigrant Status for certain North Atlantic Treaty Organization (NATO) civilian employees, 

Feb. 8, 1999. 

77 8 C.F.R. § 214.2(t). 

78 8 C.F.R. § 214.11. The total number of principal aliens issued T-1 nonimmigrant status 

may not exceed 5,000 in any fiscal year. Once the cap is reached during a year, USCIS will 

continue to review and consider applications in the order they are received. USCIS will 

determine if the applicants are eligible for T-1 nonimmigrant status, but will not issue T-1 

nonimmigrant status at that time. All eligible applicants who, due solely to the cap, are not 

granted T-1 nonimmigrant status shall be placed on a waiting list and will receive notice of such 

placement. While on the waiting list, the applicant shall maintain his or her current means to 

prevent removal (e.g., deferred action, parole, or stay of removal) and any employment 

authorization, subject to any limits imposed on that authorization. 8 C.F.R. § 214.11(m). 

79 See Memorandum for Director, Vermont Service Center, from William R. Yates, 

Associate Director of Operations, re: Centralization of Interim Relief for U Nonimmigrant 

Status Applicants, Oct. 8, 2003. 

80 Memorandum for Director, Vermont Service Center, from William R. Yates, Associate 

Director of Operations, re: Centralization of Interim Relief for U Nonimmigrant Status 

Applicants, Oct. 8, 2003. 

Notes to Section II 

81 U.S. Department of Justice, Immigration and Naturalization Service (INS), 1990 Statistical 

Yearbook of the Immigration and Naturalization Service (hereafter referred to as INS, 1990 

Statistical Yearbook), p. 16. 

82 1995 House Committee Report, p. 584; Thomas Alexander Aleinikoff, David A. Martin, 

and Hiroshi Motomura, Immigration and Citizenship: Process and Policy, fifth edition (MN: St. Paul, 

2003), p. 153. 

83 INS, 1990 Statistical, p. 23. 

84 Act of February 5, 1917, 39 Stat. 874. 

85 Act of February 5, 1917, § 16, 39 Stat. 886. 

86 Act of February 5, 1917, § 3, 39 Stat. 875-876. 
100

87 Act of February 5, 1917, § 3, 39 Stat. 875-876. 

88 Act of May 26, 1924, section 2(a), 43 Stat. 153. 

89 Adah S. Griffin, “Admission of Foreign Students to the United States,” INS Monthly 

Review, vol. III, no. 5 (November 1945), p. 224. 

90 Act of May 26, 1924, section 4(e). 

91 Griffin, “Admission of Foreign Students to the United States.” 

92 Griffin, “Admission of Foreign Students to the United States,” p. 227. 

93 Elizabeth J. Harper, Immigration Laws of the United States, 3rd ed. (New York: The BobbsMerrill Company, Inc., 1975), pp. 14-21. 

94 Joint Resolution of April 29, 1943, 57 Stat. 70, see Harper, Immigration Laws of the United 

States, pp. 18-19.

95 Immigration Act of 1917, 39 Stat. 874; Title V of the Agricultural Act of October 31, 

1949, 63 Stat. 1051). See Harper, Immigration Laws of the United States, pp. 18-19; USCIS, 

“Immigration and Naturalization Legislation from the Statistical Yearbook,” 

<http://onlineplus.ins/graphics/shared/aboutus statistics/legishist/>. The Bracero Program 

expired on December 31, 1964 after several extensions the last of which was the Act of 

December 13, 1963, Pub. L. No. 88-203, 77 Stat. 363. Harper, Immigration Laws of the United 

States, p. 36.

96 Pub. L. No. 291, 59 Stat. 669 (Dec. 29, 1945). 

97 Pub. L. No. 291, § 7(c). 

98 Pub. L. No. 80-402, 62 Stat. 6. 

99 Pub. L. No. 80-402, § 201 at 62 Stat. 7. 

100 Pub. L. No. 80-402, § 201 at 62 Stat. 7. 

101 S. Rep. 80-811 (Jan. 7, 1948), 1948 U.S.C.A.A.N., 1011 at 1024.

102 INS Yearbook, 1990, p. 26. 

103 The INA of 1952 set the annual quota for an area at one-sixth of one percent of the 

number of inhabitants in the continental United States in 1920 whose ancestry or national origin 

was attributable to that area. All countries were allowed a minimum quota of 100, with a 

ceiling of 2,000 on most natives of countries in the Asia-Pacific triangle, which broadly 

encompassed the Asian countries. The law also introduced a system of selected immigration by 

giving a quota preference to skilled aliens whose services are urgently needed in the United 

States and to relatives of U.S. citizens and aliens. 

104 Pub. L. No. 87-256 (Sept. 21, 1961); Charles Gordon and Harry N. Rosenfield, 

Immigration Law and Procedure (New York: Matthew Bender, 1980), pp. 2-101 – 2-102. 

105 U.S. Commission on Immigration Reform, Legal Admissions: Temporary, pp. 140, 152. 

106 66 Stat. 163, § 1010(15)(H)(iii). The word “industrial” was removed from the definition 

in 1970 by 

Pub. L. No. 91-255. 

107 Charles Gordon and Harry N. Rosenfield, Immigration Law and Procedure (New York: 

Matthew Bender, 1980), p. 2-121. 
101

108 Pub. L. No. 87-256, 75 Stat. 527. See U.S. Department of State, “The Exchange Visitor 

Program: Alternatives to the Exchange Visitor Program,” <http://exchanges.state.gov/ 

education/jexchanges/participation/alternatives.htm.> 

109 H.R. REP. NO. 87-1094 (Sept. 15, 1961), reprinted in 1961 U.S.C.C.A.N. 2759 at 2774. 

110 1961 U.S.C.C.A.N. 2759 at 2774; Conf. Rep. 87-1197 (Sept. 15, 1961), reprinted in 1961 

U.S.C.C.A.N. 2775, at 2779. 

111 Harper, Immigration Laws of the United States, pp. 271, 277. See Pub. L. No. 87-256, § 109 

(a)-(b), 75 Stat. 527 at 534. 

112 Harper, Immigration Laws of the United States, pp. 14-21. 

113 For example, the War Brides Act of 1948 (59 Stat. 659), the G.I. Fiancées Act of 1946 

(60 Stat. 339), and the Act of August 19, 1950 (64 Stat. 464). Harper, Immigration Laws of the 

United States, p. 16.

114 Pub. L. No. 91-225, 84 Stat. 116. 

115 Harper, Immigration Laws of the United States, p. 319; Elizabeth J. Harper, “The Act of 

April 7, 1970,” I & N Reporter, April 1971, p. 47.

116 Harper, Immigration Laws of the United States, pp. 304-305. 

117 Stephen J. Krzes, “The Iranian Student Registration Program,” INS Reporter, Winter 

1989-80, pp. 1-2. 

118 Stephen J. Krzes, “A Review of the Iranian Project,” INS Reporter, Spring-Summer-Fall 

1981, pp. 5-8; House Report No. 97-264, p. 18. 

119 Ibid. 

120 Pub. L. No. 97-116, 95 Stat. 1611 (Dec. 29, 1981). 

121 House Judiciary Committee Report No. 97-264 (Oct. 2, 1981), p. 18. 

122 Pub. L. No. 99-603, 100 Stat. 3359 (Nov. 6, 1986). 

123 INS, INS Reporter, January 1988, p. 2. In the 1970s, Congress became increasingly 

concerned over illegal immigration. In 1971, the House Judiciary Subcommittee began a series 

of hearings on related issues, including employer sanctions. Debates and proposals on how to 

control illegal immigration continued throughout the 1970s, resulting in a variety of committees, 

studies, and bills. Nonetheless, a large-scale revision of the law continued to be debated. After 

years of study and discussion, IRCA was finally signed into law on November 6, 1986. See

Bernard D. Reams, Jr. and Mary Ann Nelson, “Immigration Reform and the Simpson-Rodino 

Act: A Legislative History of the Immigration Reform and Control Act of 1986 (P.L. 99-603) 

with Related Documents and Secondary Sources, International Journal of Legal Information, vol. 22 

(Spring 1994), p. 12. 

124 INS, 1990 Statistical Yearbook, p. 115. 

125 U.S. House of Representatives, Judiciary Committee, report on the Immigration Reform 

and Control Act of 1986, House Rep. No. 99-682, Part I (July 16, 1986), reprinted in I986 

U.S.C.C.A.N. 5649 at 5681. 

126 INS, 1990 Statistical Yearbook, p. A.1-19; U.S. Commission on Immigration Reform, Legal 

Admissions: Temporary, p. 174. See also, Alan C. Nelson, “A Balanced Approach to Immigration 

Reform,” INS Reporter, Spring 1983, p. 4. 
102

127 1986 U.S.C.C.A.N. 5649 at 5706. 

128 INS, 1990 Statistical Yearbook, p. 117. 

129 Pub. L. No. 106-396, 114 Stat. 1637, codified as amended at 8 U.S.C. 1187(h). 

130 “The Immigration Act of 1990 Analyzed: Part I – Introduction,” Interpreter Releases, vol. 

67, no. 45 (Dec. 3, 1990), p. 1353; H.R. Rep. No. 723, part I, 101st Cong., 2nd Sess. 1990 (Sept. 

19, 1990), reprinted in 1990 U.S.C.C.A.N. 6710. 

131 Pub. L. No. 101-649, 104 Stat. 4978 (Nov. 29, 1990). 

132 INS, 1998 Statistical Yearbook, pp. A.1-20 – A.1-21. 

133 “The Immigration Act of 1990 Analyzed: Part 4 – Nonimmigrant Visas B to H-1A,” 

Interpreter Releases, vol. 68, no. 1 (Jan. 7, 1991), p. 1. 

134 Ibid., p. 3. 

135 H.R. Rep. No. 723, Part I, 101st Cong., 2d Sess. 56-57 (1990) (cited in “The Immigration 

Act of 1990 Analyzed: Part 4 – Nonimmigrant Visas B to H-1A,” Interpreter Releases, vol. 68, no. 

1 (Jan. 7, 1991), p. 3). 

136 H.R. REP. NO. 101-723, p. 67. See Aleinikoff, Martin, and Motomura, Immigration and 

Citizenship, 5th ed., p. 402. 

137 1990 U.S.C.C.A.N. 6710. See “The Immigration Act of 1990 Analyzed: Part 4 – 

Nonimmigrant Visas B to H-1A,” Interpreter Releases, vol. 68, no. 1 (Jan. 7, 1991), p. 1. 

138 “The Immigration Act of 1990: Death Knell for the H-1B?” Interpreter Releases, vol. 68, 

no. 2 (Jan. 14, 1991), p. 29. 

139 1990 U.S.C.C.A.N. 6710. 

140 “The Immigration Act of 1990 Analyzed: Part 6 – The Remaining Nonimmigrant Visa 

Provisions,” Interpreter Releases, vol. 68, no. 3 (Jan. 7, 1991), p. 69. 

141 1990 U.S.C.C.A.N. 6710. 

142 U.S. General Accounting Office (GAO), “Inappropriate Uses of Educational and Cultural 

Exchange Visas,” GAO/NSIAD-90-61, February 1990, p. 14. 

143 GAO, “Inappropriate Uses of Educational and Cultural Exchange Visas,” p. 14. 

144 “The Immigration Act of 1990 Analyzed: Part 6 – The Remaining Nonimmigrant Visa 

Provisions,” Interpreter Releases, vol. 68, no. 3 (Jan. 7, 1991), p. 69. 

145 Pub. L. No. 101-649, § 208 (1990). 

146 “The Immigration Act of 1990 Analyzed: Part 6 – The Remaining Nonimmigrant Visa 

Provisions,” Interpreter Releases, vol. 68, no. 3 (Jan. 7, 1991), p. 77; GAO, “Issues Concerning the 

Religious Worker Visa Program,” GAO/NSIAD-99-67, March 1999, p. 1. 

147 Pub. L. No. 101-649, § 209 (1990). 

148 1990 U.S.C.C.A.N. 6710. 

149 1990 U.S.C.C.A.N. 1368, at 1369-1370. See also 59 Fed. Reg. 41,818 (Aug15, 1994).

150 Pub. L. No. 102-110, § 3 (Oct. 1, 1991). See 59 Fed. Reg. 41,818. 

151 Pub. L. No. 102-232 (Dec. 12, 1991). 
103

152 Id. at § 206(b). 

153 H.R. REP. NO. 304, 102nd Cong., 1st Sess. 1991 at 3. 

154 Bureau of Justice Statistics, “Criminal Victimization, 1973-95,” NCJ-163069, April 1997; 

The White House, “The Clinton Gore Administration: A Record of Progress,” August 2000, 

accessed at <http://clinton4.nara.gov/WH/Accomplishments/crime.html>. See “Congresses 

Passes Sweeping Crime Bill with Immigration Provisions,” Interpreter Releases, vol. 71, no. 34 

(Sept. 1, 1994), p. 1177. 

155 See S. REP. NO. 103-138, 103rd Cong., 1st Sess. (Sept. 10, 1993), at 41; H.R. REP. NO. 

487, part II, 106th Cong., 2nd Sess. (April 13, 2000), at 16. 

156 Pub. L. No. 103-322. 

157 U.S. Department of Justice, “Violence Crime Control and Law Enforcement Act of 

1994,” fact sheet, Oct. 24, 1994. 

158 Ibid. 

159 8 C.F.R. § 214.2(t). See “Congresses Passes Sweeping Crime Bill with Immigration 

Provisions,” Interpreter Releases, vol. 71, no. 34 (Sept. 1, 1994), p. 1177. 

160 Pub. L. No. 106-386. 

161 H.R. REP. NO. 106-487, at 16. 

162 H.R. REP. NO. 106-487, at 17. 

163 INA, § 101(a)(15)(U). See William R. Yates, Associate Director of Operations, 

Citizenship and Immigration Services, Memorandum for Director, Vermont Service Center, Re: 

Centralization of Interim Relief for U Nonimmigrant Status Applicants, Oct. 8, 2003. 

164 “President Signs Watered-Down Immigration Measure, Advocates Express 

Disappointment,” Interpreter Releases, vol. 78, no. 1 (Jan. 3, 2001), pp. 1-4. See The White 

House, “Statement by the President on Signing Into Law HR 4942,” Dec. 21, 2000 (2000 WL 

1871653). 

165 “INS Implements LIFE Act’s ‘V’ Nonimmigrant Classification for Certain Spouses and 

Children of LPRs; State Dept. Issues Cable,” Interpreter Releases, vol. 78, no. 35 (Sept. 10, 2001), 

p. 1440. See comments by Rep. Jackson-Lee in 146 CONG. REC. H12334-03, “Conference 

Report on H.R. 4577, Departments of Labor, Health and Human Services, and Education, and 

Related Agencies Appropriation Act, 2001,” p. H12496, Dec. 15, 2000. 

166 “President Signs Watered-Down Immigration Measure, Advocates Express 

Disappointment,” Interpreter Releases, vol. 78, no. 1 (Jan. 3, 2001), pp. 1-4; “INS Implements LIFE 

Act’s Expansion of ‘K’ Nonimmigrant Classification for Spouses of U.S. Citizens and Their 

Children,” Interpreter Releases, vol. 78, no. 32 (Aug. 20, 2001), p. 1337. 

167 Pub. L. No. 101-238 (Dec. 18, 1989). 

168 Pub. L. No. 106-95, 113 Stat. 1312 (Nov. 12, 1999). 

169 H.R. REP. NO. 101-288, 101st Cong., 1st Sess. (Oct. 16, 1989), reprinted in 1989 

U.S.C.C.A.N. 1894, at 1895. 

170 Extension of Stay in the United States for Nurses, Pub. L. No. 104-302, 110 Stat. 3656 

(Oct. 11, 1996). See H.R. REP. NO. 106-135, 106th Cong., 1st Sess. (May 12, 1999), p. 2.
104

171 Pub. L. No. 106-95, § 2(e). The Department of Labor interim final rule was issued in 

August 2000 with an effective date of September 21, 2000. 65 Fed. Reg. 51,138-01 (Aug. 22, 

2000). 

172 U.S Department of Labor, Employment and Training Administration, “H-1C Nurses in 

Disadvantaged Areas,” accessed at <http://workforcesecurity.doleta.gov/foreign/h-1c.asp.> 

173 United States-Chile Free Trade Agreement Implementation Act, Pub. L. No. 108-77, 117 

Stat. 909 (Sept. 3, 2003); United States-Singapore Free Trade Agreement Implementation Act, 

Pub. L. No. 108-78, 117 Stat. 948 (Sept. 3, 2003). 

174 Pub. L. No. 108-77, Title IV, § 402; Pub. L. No. 108-78, Title IV, § 402. See “President 

Signs Fast Track Trade Acts with Expanded Nonimmigrant Provisions,” Interpreter Releases, vol. 

80, no. 35 (Sept. 15, 2003), p. 1295. 

175 “President Signs Fast Track Trade Acts with Expanded Nonimmigrant Provisions,” 

Interpreter Releases, vol. 80, no. 35 (Sept. 15, 2003), p. 1295. 

176 Pub. L. No. 105-319, 112 Stat. 3013 (Oct. 30, 1998). 

177 The law was amended in 2002 and 2004. See Pub. L. No. 107-234, 116 Stat. 1481 (Oct. 

4, 2002); Pub. L. No. 108-449, 118 Stat. 3469 (Dec. 10, 2004). 

178 Walsh Visa Program, “Program Description,” accessed at <http://www.walshvisa.net/ 

Public/description.asp.> 

179 Pub. L. No. 107-274, 116 Stat. 1923 (Nov. 2, 2002). 

180 67 Fed. Reg. 238 (Dec. 11, 2002); “President Signs Border Commuter Student Act and 

DOJ Authorization Act,” Interpreter Releases, vol. 79, no. 4 (Nov. 11, 2002), p. 1675. 

181 Memorandum for Regional Directors, from Johnny N. Williams, Executive Associate 

Commissioner, Office of Field Operations, re: Commuter Part-time Students Residing in 

Contiguous Territory, May, 22, 2002. See 148 CONG. REC. H7908-01, Oct. 15, 2002; H.R. REP.

NO. 107-753, reprinted in 2003 U.S.C.C.A.N. 1194 (Oct. 15, 2002). 

182 U.S. Representative Silvestre Reyes, “Extensions for Part-Time Commuter Students 

Positive for Border Education,” press release, Aug. 8, 2002. 

183 INS, “Reduced Course Load for Certain F and M Nonimmigrant Students in Border 

Communities,” 67 Fed. Reg. 54,941 (Aug. 27, 2002). 

184 Reyes, “Extensions for Part-Time Commuter Students Positive for Border Education.” 

See 148 CONG. REC. H7908-01; H.R. REP. NO. 107-753, reprinted in 2003 U.S.C.C.A.N. 1194. 

185 Pub. L. No. 107-274, 116 Stat. 1923 (Nov. 2, 2002). 

186 United States-Chile Free Trade Agreement Implementation Act, Pub. L. No. 108-77, 117 

Stat. 909 (Sept. 3, 2003); United States-Singapore Free Trade Agreement Implementation Act, 

Pub. L. No. 108-78, 117 Stat. 948 (Sept. 3, 2003). 

187 Pub. L. No. 109-13, Division B, § 501 (May 11, 2005). 

188 Id. See “Emergency Supplemental Appropriations Act for Defense, the Global War on 

Terror, and Tsunami Relief Act, 2005 – Conference Report,” 151 CONG. REC. S4816-02 at 

S4839 (May 10, 2005); “REAL ID Now the Law,” Interpreter Releases, vol. 82, no. 20 (May 16, 

2005), p. 813, at 816. 
105

Notes to Section III 

189 Government of Australia, Department of Immigration and Multicultural and Indigenous 

Affairs, “The Electronic Travel Authority,” fact sheet no. 55, accessed at 

<http://www..immi.gov.au/facts/55eta.htm.> 

190 Ibid. 

191 Government of Australia, Australian Electronic Travel Authority, “What is an ETA?” 

accessed at <http://www.eta.immi.gov.au/ETAAus2En.html.> 

192 Government of Australia, Department of Immigration and Multicultural and Indigenous 

Affairs, “Retirement Visa (subclass 410 - Temporary),” accessed at <http://www.immi.gov.au/ 

allforms/ temp_retire.htm.>

193 Government of Australia, Department of Immigration and Multicultural and Indigenous 

Affairs, “Working Holiday Maker Program,” fact sheet no. 49, accessed at 

<http://www.immi.gov.au/facts/49whm.htm>

194 Ibid. 

195 Government of Australia, Department of Immigration and Multicultural and Indigenous 

Affairs, “Student Visa Subclasses and Assessment Levels” accessed at <http://www.immi.gov.au/ 

study/visas/subclasses_assessment.htm.>

196 Government of Australia, Department of Immigration and Multicultural and Indigenous 

Affairs, “Working While Studying” accessed at 

<http:/www.immi.gov.au/study/working/how_to_apply.htm.>

197 Similar to the United States and Australia, citizens of certain countries do not require a 

visa to visit Canada. These include citizens of Andorra, Antigua and Barbuda, Australia, Austria, 

Bahamas, Barbados, Belgium, Botswana, Brunei, Cyprus, Denmark, Finland, France, Germany, 

Greece, Iceland, Ireland, Israel (National Passport holders only), Italy, Japan, Liechtenstein, 

Luxembourg, Malta, Mexico, Monaco, Namibia, Netherlands, New Zealand, Norway, Papua New 

Guinea, Portugal, Republic of Korea, St. Kitts and Nevis, St. Lucia, St. Vincent, San Marino, 

Singapore, Solomon Islands, Spain, Swaziland, Sweden, Slovenia, Switzerland, United States, and 

Western Samoa. Citizenship and Immigration Canada, “Countries and Territories Whose 

Citizens Require Visas in Order to Enter Canada as Visitors,” accessed at <http://www.cic.gc.ca/ 

english/visit/visas.html.> 

198 Citizenship and Immigration Canada, Visiting Canada: Applying for a Temporary Resident 

Visa Outside Canada, IMM 5256E, December 2004, p. 4. 

199 Citizenship and Immigration Canada, Visiting Canada: Applying for a Temporary Resident 

Visa Outside Canada, IMM 5256E, December 2004, pp. 4-5. 

200 Citizenship and Immigration Canada, “Working Temporarily in Canada,” accessed at 

<http://www.cic.gc.ca/english/work/index.html;> 

201 Citizenship and Immigration Canada, “Common HRDC Confirmation-Exemption 

Categories of Work,” accessed at <http://www.cic.gc.ca/english/work/exempt-2.html;> 

Citizenship and Immigration Canada, “Will You Qualify as a Skilled Worker?” accessed at 

<http://www.cic.gc.ca/english/skilled/qual-1.html;.> Citizenship and Immigration Canada, “Jobs 

Exempt from Work Permit Requirement” accessed at <http://www.cic.gc.ca/english/work/ 

exempt-1.html.> 
106

202 Citizenship and Immigration Canada, “Working Temporarily in Canada,” accessed at 

<http://www.cic.gc.ca/english/work/index.html.> Canada’s requirements concerning temporary 

entry are found in the Immigration and Refugee Protection Act, the Citizenship Act, related 

regulations. Immigration Canada, Visiting Canada: Applying for a Temporary Resident Visa Outside 

Canada, IMM 5256E, December 2004, p. 2. 

203 A permit is not required for individuals attending a program of study of 6 months or 

less; programs that are not academic, professional, or vocational in nature that can be 

completed within the period of stay authorized at entry; courses included in tour packages as 

secondary activities for tourists; and nursery schools or kindergartens. Citizenship and 

Immigration Canada, Studying in Canada: Applying for a Study Permit Outside Canada, IMM 5269E, 

December 2004, p. 3. 

204 Citizenship and Immigration Canada, Studying in Canada: Applying for a Study Permit 

Outside Canada, IMM 5269E, December 2004, pp. 4-5, 7. 

205 Ministry of Foreign Affairs of Japan, Consular and Migration Affairs Department, Foreign 

Nationals’ Affairs Division, “A Guide to Japanese Visas,” April 2000, <http://www.mofa.go.jp/ 

j_info/visit/visa/preface.html.> 

206 Ibid. 

207 Ministry of Foreign Affairs of Japan, Consular and Migration Affairs Department, Foreign 

Nationals’ Affairs Division, “A Guide to Japanese Visas, Section V. Documents to Be Submitted 

with Visa Applications,” <http://www.mofa.go.jp/j_info/visit/visa/05.html.> 

208 Ministry of Foreign Affairs of Japan, Consular and Migration Affairs Department, Foreign 

Nationals’ Affairs Division, “A Guide to Japanese Visas, Section II. Exemption Visas,” 

<http://www.mofa.go.jp/j_info/ visit/visa/02.html.> 

209 Bureau of Immigration of the Philippines, <http://www.immigration.gov.ph.> 

210 Republic of the Philippines, Department of Foreign Affairs, “Visa Information,” accessed 

at <http://www.dfa.gov.ph/consular/visa.htm.> 

211 Republic of the Philippines, Department of Foreign Affairs, “Visa Information,:” accessed 

at <http://www.dfa.gov.ph/consular/visa.htm.> 

212 UK Office of the European Parliament, “History of the EU,” accessed at 

<http://www.europarl.org.uk/EU/textonly/txhistory.htm;> United States Mission to the 

European Union, “History,” accessed at <http://www.useu.be/FACTFIG/histo.html.>

213 European Union, “Abolition of Internal Borders and Creation of a Single EU External 

Frontier,” accessed at <http://europa.eu.int/comm/justice_home/;> “The History of Schengen,” 

accessed at <http://www.sirene.gov.uk/history.html.> 

214 Ibid. 

215 Maastricht Treaty, Title I (Feb. 7, 1992), accessed at <http://europa.eu.int/en/record/ 

mt/title1.html.> 

216 Maastricht Treaty, Title II, article 8, accessed at <http://europa.eu.int/en/record/mt/ 

title2.html.> 

217 European Union, “Same Visa Policy for all European Union Members,” accessed at 

<http://europa.eu.int/comm/justice_home/fsj_freetravel_visa_en.htm.> 

218 Ibid.> 
107

219 European Union, “Abolition of Internal Borders and Creation of a Single EU External 

Frontier,” accessed at <http://europa.eu.int/comm/justice_home/;> “The History of Schengen,” 

accessed at <http://www.sirene.gov.uk/history.html.> 

220 Ibid. 

221 European Commission, Justice and Home Affairs, “Travel Rights for Non-EU Nationals 

Closely Defined,” accessed at <http://europa.eu.int/comm/justice_home/fsj/freetravel/ 

thirdcountry/fsj_freetravel_thirdcountry_en.htm.> 

222 Council of European Union, Council Regulation (EC) No 539/2001 (March 15, 2001), 

Official Journal of the European Commitities, L 81/1 (March 21, 2001), annex II. 

223 European Commission, Directorate-General for Press and Communication, “Travelling 

in Europe 2005,” January 2005, accessed at <http://europa.eu.int/abc/travel/index_en.htm.> 

224 Consulate General of Spain in Boston, “Tourist and Business Visas,” accessed at 

<http://www.spainconsul-ny.org/Boston/english/visatoub.htm.> 

225 Council of European Union, Council Regulation (EC) No 539/2001, Article 4. 

226 Joanne van Selm and Eleni Tsolakis, “The Enlargement of an ‘Area of Freedom, Security, 

and Justice’: Managing Migration in a European Union of 25 Members,” Migration Policy Institute 

Policy Brief, May 2004, no. 4. 

Notes to Section IV 

227 DHS, Office of Immigration Statistics, “Temporary Admissions of Nonimmigrants to the 

United States in 2004,” by Elizabeth M. Grieco, Annual Flow Report, May 2005. 

228 Ibid. 

229 Ibid. 

230 Ibid. 

231 DHS, Office of Immigration Statistics, “Length of Visit of Nonimmigrants Departing the 

United States in 2003,” by Elizabeth M. Grieco, Working Paper, March 2005. The 22.1 million 

departures in this study represent 94 percent of the 23.6 million total departures that were 

recorded by DHS in 2003. 

232 Ibid., p. 2. 

233 Ibid., p. 4. 

234 Ibid., p. 6, table 6. 

235 Ibid. 

Notes to Section V 

236 23 Stat. 332. See Elizabeth J. Harper, Immigration Laws of the United States, 3rd ed. (New 

York: The Bobbs-Merrill Company, Inc., 1975), p. 6. The 1885 law was amended in 1887 to 

give the Secretary of the Treasury enforcement authority, and to provide that prohibited 

persons be sent back upon arrival. 24 Stat. 414 (Feb. 23, 1887). An amendment in 1888 
108

provided for the expulsion of aliens in violation of the contract labor laws. 25 Stat. 566 (Oct. 

19, 1888). See INS, 1998 Statistical Yearbook, p. A.1-3. 

237 H.R. REP. NO. 82-1365 (Feb. 14, 1952), reprinted in 1952 U.S.C.C.A.N. 1653 at 1661 

(legislative history of the INA of 1952). See Enid Trucios-Haynes, “Temporary Workers and 

Future Immigration Policy Conflicts: Protecting U.S. Workers and Satisfying the Demand for 

Global Human Capital,” Brandeis Law Journal, vol. 40 (Summer 2002), p. 967. 

238 Harper, Immigration Laws of the United States, p. 6. The law was amended in 1887 to give 

the Department of the Treasury enforcement authority for the law, and again in 1888 to 

provide for the return of immigrants arriving in violation of the Contract Labor Law. 1952 

U.S.C.C.A.N. 1653 at 1661-1662. 

239 Tracy Halliday, “The World of Business Offshoring: H-1B Visas Can Be Utilized to Curb 

the Business Trend of Offshoring,” Hamline Journal of Public Law and Policy, vol. 25 (Spring 2004), 

p. 407. 

240 Pub. L. No. 45, Joint Resolution of April 29, 1943, 57 Stat. 70; see Harper, Immigration 

Laws of the United States, pp. 18-19.

241 “Foreign Workers for American Agriculture,” Immigration and Naturalization Service 

Monthly Review, July 1943, vol. I, no. 1, pp. 6-10; “Labor Imported from Western Hemisphere 

Countries,” Immigration and Naturalization Service Monthly Review, October 1944, vol. II, no. 4, pp. 

50-51. 

242 Ibid. 

243 Immigration Act of 1917, 39 Stat. 874; Title V of the Agricultural Act of October 31, 

1949, 63 Stat. 1051). See Harper, Immigration Laws of the United States, pp. 18-19, 36; USCIS, 

“Immigration and Naturalization Legislation from the Statistical Yearbook,” 

<http://onlineplus.ins/graphics/shared/aboutus/statistics/legishist/>. 

244 Fred L. Koestler, “Bracero Program,” The Handbook of Texas Online, accessed at 

http://www.tsha.utexas.edu/ handbook/online/articles/print/BB/omb1.html.> 

245 Andrew Scott Kosegi, “The H-2A Program: How the Weight of Agricultural Employer 

Subsidies is Breaking the Backs of Domestic Migrant Farm Workers,” Indiana Law Review, vol. 25 

(2001), p. 269. 

246 Ibid. 

247 Pub. L. No. 82-78, 65 Stat. 117 (1951). 

248 Maria Elena Bickerton, “Prospects for a Bilateral Immigration Agreement with México: 

Lessons from the Bracero Program,” Texas Law Review, vol. 79 (March 2001), p. 895. 

249 Kosegi, “The H-2A Program.” 

250 Pub. L. No. 414, § 214(c), 66 Stat. 163 at 189-190. 

251 Id. at § 101(15)(H(ii). 

252 INS, 1990 Statistical Yearbook, p. 115. 

253 U.S. Commission on Immigration Reform, Legal Admissions: Temporary, p. 152. 

254 Pub. L. 101-238, 103 Stat. 2099 (Dec. 18, 1989). 
109

255 H.R. REP. NO. 101-288, reprinted in 1989 U.S.C.C.A.N. 1894 (Oct. 16, 1989). See

Trucios-Haynes, “Temporary Workers and Future Immigration Policy Conflicts,” p. 990. 

256 1989 U.S.C.C.A.N. 1894, 1898-1899. 

257 Pub. L. 101-238, § 3(c). See Trucios-Haynes, “Temporary Workers and Future 

Immigration Policy Conflicts,” p. 990. 

258 Immigration Nursing Relief Advisory Committee, Report to the Secretary of Labor on the 

Immigration Nursing Relief Act of 1989, cited in Trucios-Haynes, “Temporary Workers and Future 

Immigration Policy Conflicts,” pp. 994-995. 

259 Trucios-Haynes, “Temporary Workers and Future Immigration Policy Conflicts,” pp. 

996-997. 

260 U.S Department of Labor, Employment and Training Administration, “H-1C Nurses in 

Disadvantaged Areas,” accessed at <http://workforcesecurity.doleta.gov/foreign/h-1c.asp.> 

261 Pub. L. No. 101-649, § 205(c). See “The Immigration Act of 1990 Analyzed: Part 4 – 

Nonimmigrant Visas B to H-1A,” Interpreter Releases, vol. 68, no. 1 (Jan. 7, 1991), p. 1, at 8; 

Angelo A. Paparelli and Mona D. Patel, “The Immigration Act of 1990: Death Knell for the H1B?” Interpreter Releases, vol. 68, no. 2 (Jan. 14, 1991), p. 29, at 33. 

262 1990 U.S.C.C.A.N. 6710, 6724. 

263 Jung S. Hahm, “American Competitiveness and Workforce Improvement Act of 1998: 

Balancing Economic and Labor Interests Under the New H-1B Visa Program,” Cornell Law 

Review, vol. 85 (September 2000), p. 1673. 

264 Hahm, “American Competitiveness and Workforce Improvement Act of 1998;” A. 

James Vazquez-Azpiri and Angelo A. Paparelli, “Awakening a Slumbering Giant: The Department 

of Labor’s Interim Final Rule on H-1B Dependency,” Interpreter Releases, vol. 78, no. 16 (April 

23, 2001), p. 685. 

265 Pub. L. No. 105-277, Title IV (Oct. 21, 1998). 

266 Leah Phelps Carpenter, “The Status of the H-1B Visa in These Conflicting Times,” Tulsa 

Journal of Comparative and International Law, vol. 10 (Spring 2003), p. 553. 

267 Hahm, “American Competitiveness and Workforce Improvement Act of 1998,” pp. 

1686-1688. 

268 Vazquez-Azpiri and Paparelli, “Awakening a Slumbering Giant,” pp. 686-687. 

269 Pub. L. No. 106-313, 114 Stat. 1251 (Oct. 17, 2000). 

270 Carpenter, “The Status of the H-1B Visa in These Conflicting Times.” 

271 S. REP. NO. 106-260 (April 11, 2000), pp. 22-23; Memorandum for All Regional 

Directors, et. al., from Michael A. Pearson, Executive Associate Commissioner, Office of Field 

Operations, re: Interim Guidance for Processing H-1B Applicants for Admission as Affected by 

the American Competitiveness in the Twenty-first Century Act of 2000, Public Law 106-313, Jan. 29, 

2001. 

272 U.S. Department of Labor, Employment and Training Administration, “Overview of the 

H-1B Technical Skills Training Program,” accessed at <http://www.doleta.gov/h1b/html/overv1.htm.> 

273 Pub. L. No. 108-441 (Dec. 3, 2004). 
110

274 USCIS, “USCIS to Implement H-1B Visa Reform Act of 2004: Advises Employers Not to 

File Petitions Until New Guidance is Issued,” press release, March 4, 2005. 

275 USCIS, “USCIS to Implement H-1B Visa Reform Act of 2004: New Law Changes 

Aspects of the Temporary Work Program,” press release, Dec. 9, 2004. 

276 Ibid. 

277 Ibid. 

278 USCIS, “USCIS to Implement L-1 Visa Reform Act of 2004,” press release, Dec. 9, 2004. 

279 8 C.F.R. § 274a.12(c); 8 C.F.R. § 214.2(o)(6(1)(iv); INS, Memorandum from William R. 

Yates, Deputy Executive Associate Commission, Immigration Services Division, Office of Field 

Operations, re: Guidance on Employment Authorization for E and L Nonimmigrant Spouses, and 

for Determinations on the Requisite Employment Abroad for L Blanket Petitions, Feb. 22, 2002. 

280 8 C.F.R. § 274a.12(c)(7); 8 C.F.R. § 214.2(s)(3). 

281 8 C.F.R. § 274a.12(c)(3). 

282 8 C.F.R. § 214.2(m)(13)-(14). 

283 8 C.F.R. § 214.2(j)(1)(v). 

284 8 C.F.R. § 214.3(t)(10).

285 8 C.F.R. § 214.11(o)(10). 

286 Michael A. Pearson, Executive Association Commissioner, Office of Field Operations, 

Immigration and Naturalization Services, Memorandum re: Academic Honorarium for Visiting B 

Nonimmigrant Aliens, Nov. 30, 1999. 

287 8 C.F.R. § 214.2(f)(15)(i). 

288 8 C.F.R. § 214.2(m)(13)-(14), (17). 

289 U.S. Department of State, Bureau of Consular Affairs, “Foreign Media, Press, Radio,” 

accessed at <http://travel.state.gov/visa/temp/types/types_1276.html#3.> 

290 8 C.F.R. § 214.2(h)(9)(iv); 8 C.F.R. § 214.2(q)(15)(vii)(B); 8 C.F.R. § 214.2(r)(8); 8 C.F.R. § 

214.6(j)(3). 

291 U.S. Commission on Immigration Reform, Legal Admissions: Temporary, pp. 140, 152. 

292 Pub. L. No. 87-256. 

293 For instance, the INA of 1952 stated that an H-1 nonimmigrant was an alien “of 

distinguished merit and ability who is coming to the United States to perform temporary 

services of an exceptional nature requiring such merit and ability.” In 1970, Congress removed 

the word “temporary” from before the word “services.” Legislation in 1976 precluded foreign 

medical graduates from being employed as H-1 nonimmigrants in positions involving direct 

patient care, although a 1977 law exempted from that provision aliens who are of national or 

international renown in the field of medicine. U.S. Commission on Immigration Reform, Legal 

Admissions: Temporary, pp. 140-141.

294 8 U.S.C. 1101 (a)(15)(H). 

295 S. REP. NO. 106-260 (April 11, 2000), pp. 22-23. 

296 8 C.F.R. § 214.2(h)(ii)(B). 
111

297 H-1A was used for registered nurses entering under the Nursing Relief Act of 1989. 

This program expired in 1995, although it was extended in 1996 and 1997, and then replaced by 

Nursing Relief for Disadvantaged Areas Act of 1999. 

298 8 C.F.R. § 214.2(h)(5); U.S. Commission on Immigration Reform, Legal Admissions: 

Temporary, pp. 152-154. 

299 U.S. Commission on Immigration Reform, Legal Admissions: Temporary, p. 153. 

300 8 C.F.R. § 214.2(h)(6). 

301 8 C.F.R. § 214.2(h)(7); U.S. Commission on Immigration Reform, Legal Admissions: 

Temporary, pp. 159-160.

302 U.S. Commission on Immigration Reform, Legal Admissions: Temporary, pp. 168-169. 

303 USCIS, “Employment Categories and Required Documentation,” accessed at < 

http://uscis.gov/graphics/ services/tempbenefits/ecrd.htm#anchorL1.> 

304 U.S. Commission on Immigration Reform, Legal Admissions: Temporary, pp. 168-169. 

305 USCIS, “Employment Categories and Required Documentation.” 

306 U.S. Department of Labor (DOL), Employment and Training Administration (ETA), 

“Foreign Labor Certification Questions and Answers,” accessed at 

<http://ows.doleta.gov/foreign/about.asp.> 

307 DOL, ETA, “H-1B Specialty (Professional) Workers,” accessed at 

<http://workforcesecurity.doleta.gov/foreign/h-1b.asp.> 

308 DOL, ETA, “H-2A Certification,” accessed at 

<http://workforcesecurity.doleta.gov/foreign/h-2a.asp.> 

309 DOL, ETA, “H-2B Certification for Temporary Nonagricultural Work,” accessed at 

<http://workforcesecurity.doleta.gov/foreign/h-2b.asp.> 

310 DOL, ETA, “D-1 Crewmembers Certification,” accessed at 

<http://workforcesecurity.doleta.gov/ foreign/d-1.asp.> 

311 DOL, ETA, “Foreign Labor Certification Questions and Answers,” 

<http://ows.doleta.gov/foreign/qa.asp.> 

312 USCIS, “How Do I Use the Premium Processing Service?”<http://uscis.gov/graphics/ 

howdoi/prem_ process.htm.> 

Notes to Section VI 

313 U.S. Commission on Immigration Reform, Legal Admissions: Temporary, pp. 135-136. 

314 USCIS, “Students,” accessed at <http://uscis.gov/graphics/services/tempbenefits/ 

StudVisas.htm.> 

315 U.S. Department of State, 9 FAM 41.62 notes. 

316 USCIS, “How Do I Become an Academic Student in the United States?” accessed at 

<http://uscis.gov/ graphics/howdoi/academic.htm.> 

317 USCIS, “How Do I Become an Academic Student in the United States?” 
112

318 Since April 1997, a nonimmigrant who is out of status for 180 days or more, after his or 

her duration of status has been concluded, is barred from re-entering the United States for 3 

years. Any alien (except immediate relatives or special immigrants) who has failed (other than 

through no fault of his or her own due to technical reasons) to continuously maintain a legal 

status since entry into the United States is ineligible for permanent resident status. (However, 

such individual is not prevented from returning to the United States on an immigrant visa.) 

David Weissbrodt, Immigration Law and Procedure In a Nutshell (St. Paul, MN: West Group, 

1998), pp. 171-172. 

319 USCIS, “How Do I Become a Vocational Student in the United States?” accessed at 

<http://uscis.gov/graphics/howdoi/vocation.htm.> 

320 USCIS, “How Do I Become a Vocational Student in the United States?” 

321 Memorandum for Regional Directors, from Johnny N. Williams, Executive Associate 

Commissioner, Office of Field Operations, re: Commuter Part-time Students Residing in 

Contiguous Territory, May, 22, 2002. See 148 Cong. Rec. H7908-01, Oct. 15, 2002; H.R. Rep. 

107-753, reprinted in 2003 U.S.C.C.A.N. 1194 (Oct. 15, 2002). 

322 INS, “Reduced Course Load for Certain F and M Nonimmigrant Students in Border 

Communities,” 67 Fed. Reg. 54,941 (Aug. 27, 2002). 

323 148 Cong. Rec. H7908-01, Oct. 15, 2002; H.R. REP. NO.107-753, reprinted in 2003 

U.S.C.C.A.N. 1194 (Oct. 15, 2002). 

324 Pub. L. No. 107-274, 116 Stat. 1923 (Nov. 2, 2002). 

325 67 Fed. Reg. 76,256 (Dec. 11, 2002); “President Signs Border Commuter Student Act 

and DOJ Authorization Act,” Interpreter Releases, vol. 79, no. 4 (Nov. 11, 2002), p. 1675. 

326 67 Fed. Reg. 76,256. 

327 U.S. Department of State, Bureau of Consular Affairs, “Foreign Students – Tips for U.S. 

Visas,” accessed at <http://travel.state.gov/visa;foreignstudent.html.> 

328 U.S. Immigration and Customs Enforcement, “Student and Exchange Visitor Information 

System (SEVIS),” accessed at <http://www.ice.gov/graphics/enforce/imm/imm_sevis.htm.> 

Notes to Section VII 

329 U.S. Embassy, Australia, “Applying for a Non-Immigrant Visa,” accessed at 

<http://usembassy-australia.state.gov/consular/niv.html.> 

330 U.S. Department of State, “Obtaining a U.S. Visa,” <http://www.unitedstatesvisas.gov.> 

331 U.S. Department of State, “Obtaining a U.S. Visa;” Aleinikoff, et. al, Fifth Edition, pp. 499-

501. 

332 INA, § 212(b); U.S. Department of State, “Obtaining a U.S. Visa;” Aleinikoff, et. al, pp. 

499-501. 

333 U.S. Department of State, “Obtaining a U.S. Visa;” Aleinikoff, et. al, pp. 499-501. 

334 INA, § 214(b). 

335 Memorandum from the Secretary of State, re: INA 214(B), Basis of Refusal not 

Equivalent to Inadmissibility or Immigrant Intent, Dec. 2004. 
113

336 INA, § 212(a)(1)-(10). 

337 Aleinikoff, et. al, pp. 427-428. 

338 Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L. No. 104-208, 110 

Stat. 3009 (Sept. 30, 1996), § 301(c)(1). 

339 Aleinikoff, et. al, pp. 427-428. One reason for this change was to more clearly define 

the term “entry.” In addition, this change enables DHS to apply the grounds for inadmissibility 

both to persons who enter the United States without inspection (i.e., illegal entrants), as well as 

persons who present themselves for inspection at a U.S. port of entry. The 1996 Act added a 

ground of inadmissibility for aliens who entered without being admitted (and, thus, without 

inspection) or who entered at a place other than a official U.S. port of entry. Prior to this 

change, the grounds for exclusion did not apply to persons who had not been admitted; thus, 

such persons could only be deported under a now-repealed deportation ground. The new 

admissibility ground is now the primary mechanism for removing those who entered without 

inspection. Ibid. 

340 INA, §§ 212(a)(7)(B), 212(d)(4). 

341 8 C.F.R. § 212.7. 

342 Memorandum from William R. Yates, Associate Director for Operations, USCIS, RE: 

Exception to Nonimmigrant HIV Waiver Policy for K and V Nonimmigrants, Nov. 2, 2004. 

343 U.S. Department of State, “New Passport Initiative Announced to Better Secure 

America’s Borders,” media note, April 5, 2005, accessed at <http://www.state.gov/r/pa/prs/ 

ps/2005/44228.htm.> 

344 U.S. Customs and Border Protection, “Documentary Requirements for Canadian and 

Mexican Residents,” accessed at <http://www.cbp.gov/xp/cgov/travel/id_visa/ 

req_canada_mexico.xml.> 

345 Ibid. 

346 Ibid. 

347 8 C.F.R. § 212.1(c). 

348 8 C.F.R. § 235.1(f)(1)(v). This rule applies to ports of entry in Sasabe, Nogales, 

Mariposa, Naco, and Douglas. 

349 Pub. L. No. 107-173 (May 14, 2002). 

350 U.S. Department of State, “Extension of Requirement for Biometric Passport Issuance 

by Visa Waiver Program Countries,” press release, Aug. 10, 2004. 

351 Pub. L. No. 99-603 (Nov. 6, 1986). 

352 Pub. L. No. 106-396, 114 Stat. 1637, codified as amended at 8 U.S.C. 1187(h). 

353 U.S. House of Representatives, Judiciary Committee, report on the Immigration Reform 

and Control Act of 1986, H.R. REP. NO. 99-682(I) (July 16, 1986), reprinted in 1986 U.S.C.C.A.N. 

5649 at 5654. 

354 1986 U.S.C.C.A.N. 5649 at 5654. 

355 Although Congress extended the deadline for the inclusion of biometrics in VWPcountry passports until Oct. 26, 2005, the extension does not apply to the requirement that an 
114

individual applying for admission under the VWP was required to have a machine-readable 

passport as of June 26, 2005. U.S. Department of Homeland Security, “Machine-Readable 

Passport Procedures for Visa Waiver Travelers Announced by the Department of Homeland 

Security,” press release, Oct. 22, 2004, accessed at <http://www.dhs.gov/dhspublic/interapp/ 

press_release/press_release_0545.xml;> U.S. Customs and Border Protection, “Questions and 

Answers – English Version,” <http://www.customs.gov/xp/cgov/newsroom/fact_sheets/ 

qa_mach_read.xml.> After May 15, 2003, citizens of Andorra, Belgium, Brunei, Liechtenstein 

and Slovenia must present a machine-readable passport in order to be granted admission under 

the VWP. 

356 U.S. Department of Justice, “Department of Justice Terminates Argentina’s Participation 

in Visa Waiver Program,” press release, Feb. 20, 2002; 67 Fed. Reg. 7,943 (Feb. 21, 2002). 

357 68 Fed. Reg. 10,954 (March 7, 2003). 

358 U.S. Customs and Border Protection, “Admission into United States, 

<http://www.cbp.gov/xp/cgov/ travel/id_visa/legally_admitted_to_the_u_s.xml.> 

359 U.S. Department of State, Bureau of Consular Affairs, Visa Services, “Duration & 

Extension of Stay in the U.S - How the Visa Expiration Date is Different,” May 2003, 

<http://travel.state.gov/xtension.html.> 

360 Pub. L. No. 104-208 (Sept. 30, 1996). 

361 American Immigration Lawyers Association, Immigration & Nationality Law Handbook, 

2000-01 Edition, Vol. I: Immigration Basics (Washington, DC: AILA, 2000), p. 103. 

362 USCIS, “Temporary Visitors,” <http://uscis/gov/graphics/exec/.> 

363 USCIS, “Eligibility Information: Who May Apply to Change to a New Nonimmigrant 

Status?” accessed at <http://uscis.gov/graphics/howdoi/nieligibility.htm.> See generally 8 C.F.R. § 

248.1. 

Notes to Section VIII 

364 H. R. 101-723(I) (Sept. 19, 1990), reprinted in 1990 U.S.C.C.A.N. 6710, 6759. 

365 Pub. L. No. 101-649, § 205(e). 

366 8 C.F.R. § 214.2(h)(16). 

367 8 C.F.R. § 214.2(l)(16). 

368 8 C.F.R. § 214.2(e)(5). See Henry J. Chang, “Immigrant Intent and the Dual Intent 

Doctrine,” accessed at <http://www.americanlaw.com/dintent.html;> David L. Neal, “The 

Changing Dynamics of Adjustment of Status: Part One,” Immigration Briefings, May 1995. 

369 8 C.F.R. § 214.2(o)(13); 8 C.F.R. § 214.2(p)(15). Chang, “Immigrant Intent and the Dual 

Intent Doctrine;” Neal, “The Changing Dynamics of Adjustment of Status.” 

370 Frank L. Auerbach, Immigration Laws of the United States (New York: The Bobbs-Merrill 

Company, Inc., 1961), pp. 376-377; Lisa S. Roney, “Are New Immigrants Really New Additions 

to the Population? Trends in Adjustment of Status,” 1995. 

371 These numbers represent the total number of adjustments by nonimmigrant status in 

2002; year of entry is not included in the table. In other words, while these immigrants adjusted 
115

status in 2002, the data presented here do not indicate how long the individual had been in the 

United States prior to adjusting status. 

372 USCIS, “Estimates of the Unauthorized Immigrant Population Residing in the United 

States: 1990 to 2000,” p. 6, <http://uscis.gov/graphics/shared/aboutus/statistics/ 

Ill_Report_1211.pdf>; USCIS, “Illegal Alien Resident Population,” <http://onlineplus.ins/graphics/ 

shared/aboutus/statistics/illegalalien/illegal.pdf.> 

373 GAO, Overstay Tracking: A Key Component of Homeland Security and a Layered 

Defense, GAO-04-82, May 2004, p.3. 

374 U.S. Department of Homeland Security, “Fact Sheet: US-VISIT,” press release, Feb. 24, 

2005, accessed at <http://www.dhs.gov/dhspublic/interapp/press_release/ 

press_release_0629.xml.> 

375 54 Stat. 670 (June 28, 1940). 

376 GAO, Homeland Security: INS Cannot Locate Many Aliens Because It Lacks Reliable 

Address Information, GAO-03-188, November 2002, p. 8. 

377 Internal Security Act of 1950, 64 Stat. 987; Immigration and Nationality Act of 1952, 66 

Stat. 163. GAO, Homeland Security: INS Cannot Locate Many Aliens Because It Lacks Reliable 

Address Information, p. 8. 

378 Immigration and Nationality Act Amendments of 1981, Pub. L. No. 97-116, 95 Stat 1611. 

379 8 U.S.C. 1301-1306; GAO, Homeland Security: INS Cannot Locate Many Aliens 

Because It Lacks Reliable Address Information, pp. 8-10. 

380 Pub. L. No. 104-208, Division C, § 110. 

381 Pub. L. No. 106-215, 114 Stat. 339, codified as amended at 8 U.S.C. 1365a. 

382 DHS, “Implementation of the United States Visitor and Immigrant Status Indicator 

Technology Program (“US-VISIT”); Biometric Requirements,” 69 Fed. Reg. 468-469 (Jan. 5, 

2004). 

383 Id. 

384 Pub. L. No. 106-396, 114 Stat. 1637, codified as amended at 8 U.S.C. 1187(h). 

385 69 Fed. Reg. 468, 469. 

386 Pub. L. No. 107-56, 115 Stat. 353 (2001), codified as amended at 8 U.S.C. 1379. 

387 Pub. L. No. 107-173, 116 Stat. 553 (2002), codified in scattered sections of 8 U.S.C. 

388 69 Fed. Reg. 468, 469. 

389 Id. 

390 DHS, “Fact Sheet: US-VISIT.” 

391 DHS, “US-VISIT: How Does US-VISIT Work?” accessed at <http://www.dhs.gov/ 

dhspublic>.