People who enter the United States on nonimmigrant visas are considered to be here temporarily. The law presumes that they intend to return to their home countries at the end of their stays in the United States. Depending on the temporary visa category, if a person is here on a temporary visa and starts the permanent residence process, the law may treat that person as having “lost” his or her intent to stay temporarily, because the person now wishes to immigrate (i.e., stay permanently in the United States). Normally, if the person remains inside the United States and does not need to renew his or her temporary visa, this change of intent is not a problem. However, if the person must travel internationally or must apply for a temporary visa extension, the person may encounter difficulties.
A few nonimmigrant categories allow a person to have dual intent, that is, to intend to be here temporarily now but eventually to immigrate. In these categories, international travel and extensions of stay are not a problem. However, these categories have limitations, which mean they require careful planning. The most common dual-intent visas are the H-1B visas, L visas, and E visas.
E Visas. E visas are available to citizens of certain countries with whom the United States has treaty or other agreements. E visas have many technical requirements. There is no limit as to how long a person can remain in the United States in E status, but he or she must renew that status about every two to five years.
L Visas. L-1 visas are available to employees of multinational companies who (1) have specialized knowledge of the company or (2) are executives or managers of the company. An individual can stay in the United States for a maximum of five years in the specialized knowledge category and a maximum of seven years in the executive or manager category. At the end of that stay, the person must leave the United States for one year before he or she can return on a new L or H visa.
H-1B Visas. The most common dual-intent visa is the H-1B visa. The H-1B visa is available to a person who has a U.S. bachelor’s degree, a comparable foreign degree or the equivalent education and experience, and the job the person will be performing requires a bachelor’s degree in order to do it. An individual can stay in the United States for a maximum of six years in this category. As with the L visa, an individual must leave the U.S. for one year before he or she can be re-admitted in H-1B visa status for an additional six-year period. Both the H-1B and the L visa count time in the other category against the time limit. The H-1B visa is a cumulative visa; in other words, an employee cannot change employers and get a new six-year period with each employer.
Note that H-1B visa extensions beyond six years are allowed in one circumstance. If the green card process is initiated for an employee (by the employer’s filing a labor certification application or immigrant visa petition) before the employee has spent five years in H-1B and L-1 status, then the employee can extend the H-1B visa beyond the six-year limit. Thus, it is very important that one of these applications is filed before the fifth anniversary of the H-1B visa, unless the employee plans to return to his or her home country while seeking the green card.
Other Temporary Visa Options. As stated above, the permanent immigration process has become very lengthy and it is impossible to say exactly how long it will take. Given the uncertainty of the situation, some workers might want to delay applying for H or L nonimmigrant visas until they are ready to apply for their green cards. Other visa options, which may allow the individual to test out possible employment situations, include: F-1 practical training visas, J-1 exchange visitor programs (note: be very careful that you are not subject to the two-year home residence requirement), O visas for individuals of outstanding abilities, and, for citizens of Mexico or Canada, TN visas. These visas have their problems. The qualifications for some of them are more difficult than for the H visa, and they all require nonimmigrant intent. However, they do offer individuals the flexibility to try out a job with an employer without using up the time limits present on the major dual-intent visas.
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