Category Government visitors

P-2 visas: Participants in Reciprocal Exchange Programs

P-2 visas are available to artists or enter­tainers, either individually or as part of a group, who come to the U. S. to perform under a reciprocal exchange program between the u. s. and one or more other countries. All essential support person­nel are included. The legitimacy of the program must be evidenced by a formal, written exchange agreement. In addi­tion, a labor union in the U. S. must have either been involved in the negotia­tion of the exchange or have agreed to it. The U. S. individual or group being exchanged must have skills and terms of employment comparable to the person or group coming to the U. S.

3. P-3 visas: culturally Unique Groups

P-3 visas are available to artists or entertainers who come to the U. S., either individually or as part of a group, to develop, interpret, represent, teach, or coach in a program that is considered culturally unique. The program may be of either a commercial or noncommercial nature.

You must be coming to the U. S. to participate in a cultural event or events that will further the understanding or development of your art form. In addi­tion, your employer will have to submit on your behalf:

• statements from recognized experts showing the authenticity of your or your group’s skills in performing, presenting, coaching, or teaching the unique or traditional art form and showing the basis of your knowledge of your or your group’s skill, or

• evidence that your or your group’s art form is culturally unique, as shown by reviews in newspapers, journals, or other published materi­als, and that the performance will be culturally unique.

Essential support personnel of P-3 aliens should also request classification under the P-3 category. The documenta­tion for P-3 support personnel should include:

• a consultation from a labor organi­zation with expertise in the area of the alien’s skill

• a statement describing why the sup­port person has been essential in the past, critical skills, and experi­ence with the principal alien, and

• a copy of the written contract or a summary of the terms of the oral agreement between the alien and the employer.

4. Support Personnel for P-1, P-2, and P-3 visa Holders

Highly skilled, essential persons who are an integral part of the performance of a P-1, P-2, or P-3 visa holder may also be granted P visas. These persons must perform support services that cannot be readily performed by a u. s. worker and that are essential to the successful performance of services by the P-1, P-2, or P-3 visa holder. The support person must have appropriate qualifications to perform the services, critical knowledge of the specific services to be performed, and experience in providing such sup­port to the P-1, P-2, or P-3 visa holder. (see 8 C. F.R. § 214.2 (p)(3).)

Exceptions to the General rules

Any exchange visitor may be allowed to remain in the u. s. beyond the limitations stated above if exceptional circumstances arise that are beyond the exchange visi­tor’s control, such as illness.

c. Students: comparing J-1 visas to F-1 and M-1 visas

students coming to the u. s. often have a choice between J-1 exchange visitor visas and M-1 or F-1 student visas. Stu­dent visas are discussed in Chapter 22.

J-1 programs for students are very limited as to the level of education and types of subjects that can be studied. By con­trast, F-1 and M-1 visas can be issued for almost any type of education program imaginable, including vocational, second­ary, and high school programs as well as all courses of study at colleges and universities.

Assuming there is an exchange visi­tor program that will fit your needs as a student, there are certain advantages to holding a J-1 visa. It is much easier to get work permission as an exchange visitor than it is on a student visa. With a J-1 visa you may remain in the U. S. for up to 18 months after you graduate for the purpose of working in a practical train­ing position. F-1 student visa holders are limited to 12 months of practical training employment and M-1 students are limited to only six months.

F-1 and M-1 student visas, however, are more flexible than exchange visi­tor visas in several ways. With an F-1 student visa, you may transfer from one school to another or change courses of study quite freely. After graduation, you may enroll in a new educational program without having to obtain a new visa. On a j-1 visa, you must remain in the exact program for which your visa was issued. Most important, certain j-1 visa programs automatically make you subject to a two – year home residency requirement, which will cause problems should you later want to apply for a green card, change to another nonimmigrant status, or have a nonimmigrant worker L or H visa peti­tion approved.

D. Can You Apply for a Green card From J-1 Status?

j-1 visas, like all nonimmigrant visas, are meant to be temporary. They are intended only for people who plan on returning home once the exchange program in the u. s. is completed. should you decide to apply for a green card before your program is finished, the u. s. government will allow you to keep j-1 status while pursuing a green card, but only if you are able to convince it that you did not intend to get a green card when you originally applied for the j-1 visa and that you will return home if you are unable to secure a green card before your exchange visitor status expires. Proving these things can be difficult. If you do not succeed, your j-1 visa may be taken away. some program spon­sors have been known to withdraw j-1 privileges after an exchange visitor has applied for a green card.

The most serious drawback to apply­ing for a green card from j-1 status is that many j-1 visas are granted subject to a two-year home residency requirement. If you choose an exchange visitor program that carries this requirement, it means that you must return to your home coun­try and remain there for at least two years before you are eligible to either apply for a green card, be approved for a change of status, or have an L or H visa petition approved for yourself—even if you marry a u. s. citizen or have some other compelling reason to want a green card.

It is possible to apply for a waiver of the home residency requirement. Although the procedures for filing waiver applications are simple, getting approval can be extremely difficult, especially for foreign medical graduates. Most exchange visitors can get waivers if the governments of their home countries consent to it.

Even if the home government does con­sent, usCIs approves waiver applications only under compelling circumstances. Most, it simply denies.

The reason the u. s. prefers not to grant waivers of the home residency requirement is that many j-1 visa pro­grams are set up and financed by foreign governments for the specific purpose of getting u. s. training for their citizens. The foreign governments hope that those who are trained will eventually return and use their new skills to benefit their homeland. Were the U. S. government to interfere with these goals by allowing J-1 visa holders to remain in the u. s., there would be political discord between the u. s. and the other nations involved. Therefore, the u. s. makes every effort to see that j-1 exchange visitors keep their bargains and fulfill the home residency requirements.

Not all j-1 visa holders are subject to a home residency requirement. It applies only to participants in the following types of exchange visitor programs:

• programs for foreign medical gradu­ates coming to the u. s. to receive additional medical training

• programs where the expenses of the participants are paid by the u. s., a foreign government, or inter­national organization, and

• programs for teaching individuals certain skills that are in short supply in their home countries. The Dos maintains a list of such skills and the countries where they are espe­cially needed. The skills list can be accessed at http://exchanges. state .gov/education/jexchanges.

The Certificate of Eligibility, Form Ds-2019, which you will receive when you are accepted into an approved j-1 program, has a space on it showing whether or not your j-1 visa is subject to a home residency requirement. If it is, the u. s. consulate issuing the visa will have you sign a declaration stating that you understand your obligation to return to your home country for at least two years before being allowed to apply for a green card or other u. s. visa. The consulate will also make a notation of the home residency requirement in your passport.

Be aware that the consulate does not have the power to decide who will or won’t be subject to a home residency requirement. The facts of your situation, not the consulate’s notation on your visa or Ds-2019, determine whether you must meet this requirement. some consulates routinely mark all j-1 visas subject to the home residency requirement, no matter what the facts. The consulate’s nota­tion is a strong indication that you are probably subject to the home residency requirement, but it is not the final word. If you have doubts about the correctness of the consulate’s notation, it is worth checking into the matter.

E. Quick View of the J-1 Visa application Process

Getting a j-1 visa is a two – to three-step process:

• First, your program sponsor sends you a Certificate of Eligibility.

• second, you apply for either a visa (from a u. s. consulate in another country) or, if you’re already living legally in the u. s. and prefer not to travel, for a change of nonimmi­grant status (from usCIs).

Applying at a Consulate That’s Not in Your Home Country

The law allows most people to apply for a J-1 visa at any U. S. consulate they choose—with one exception. If you have ever been present in the U. S. unlawfully, your visa will be automati­cally cancelled and you cannot apply as a third-country national (at a consul­ate outside your home country). Even if you overstayed your permitted stay in the U. S. by just one day, you must return to your home country and apply for the visa from that consulate. There is an exception. If you were admitted to the U. S. for the duration of your sta­tus (indicated by a "D/S" on your I-94 form) and you remained in the U. S. beyond that time for which your status was conferred, you will be barred from third-country national processing only if an immigration judge or USCIS (or INS, if it was called that then) officer has determined that you were unlawfully present. You may find that your success in applying as a third-country national will depend on your country, the consul­ate, and the relative seriousness of your offense. Being unlawfully present is also a ground of inadmissibility if the period of unlawful presence is six months or more. (See Chapter 3.)

Even if you are eligible for third – country national processing, your case will be given the greatest consideration at the consulate in your home country. Applying in some other country creates suspicion in the minds of the consular officers there about your motives for choosing their consulate. Often, when an applicant is having trouble at a home consulate, he or she will seek a more lenient consular office in some other country. This practice of consulate shop­ping is frowned upon by officials in the system. Unless you have a very good reason for being elsewhere (such as a temporary job assignment in some other nation), it is smarter to file your visa application in your home country.

• Third, if you are outside the U. S. and receive a visa, you enter the U. S. and claim your J-1 status.

(If you are Canadian, your application procedures will be different from those of other applicants. see Chapter 5.)

F. Step one: Your

Sponsoring organization Issues a certificate of Eligibility

You can’t start the visa application pro­cess until you have been admitted to an exchange program approved by the

U. S. Department of State (DOS), through its Bureau of Educational and Cultural Affairs (ECA). This book does not dis­cuss how to find the right u. s. school or program, or how to get accepted to it. However, the state Department provides a list of approved organizations, at http://exchanges. state. gov/education jexchanges/. (Click the link for “search Designated sponsors.”) You’ll probably need to get started well in advance.

once a program has accepted you, it will issue you a document called a Cer­tificate of Eligibility, or SEVIS Form DS-2019. You do not fill out or sign any part of it. But be sure to carefully check the form for accuracy, then ask your sponsoring organization to correct any errors. You’ll use the DS-2019 in the next steps of your application process.

G. Step Two for Applicants Outside the U. S.: applying at a U. S. consulate

Anyone with a Certificate of Eligibility (SEVIS Form DS-2019) from an exchange visitor program sponsor can apply for a J-1 visa at a U. S. consulate in his or her home country. You must be physically present in order to apply there.

Your application will consist of gov­ernment forms as well as documents that you collect yourself. You can either get the forms in advance (download them from the State Department website or pick them up from a U. S. consulate), or you can get your documents together, then go to the consulate, pick up and fill out the forms and submit your applica­tion on the same day.

Before your appointment, you’ll need to pay a fee to support the U. S. student­tracking database called SEVIS. Your school or sponsoring organization may take care of processing this fee payment for you. If not, you’ll need to do it your­self, either online or by mail. To submit the form online, go to www. FMJfee. com, complete the online Form I-901, and pay with a credit card. To submit the form by mail, download it from the Immigra­tion and Customs Enforcement (ICE) website at www. ice. gov/graphics/sevis/ pdf/I-901.pdf, and mail it, together with your check or money order drawn on a U. S. bank and payable in U. S. currency, to the address indicated on the form.

For more information on these require­ments, see www. ice. gov/graphics/news/ newsreleases/articles/SEVISFactSheet. htm. once you get a receipt for having made this payment, you’ll need to use it for your consular interview.

Have you been, or are you now, working or living illegally in the United States? If so, see Chapter 3 regard­ing whether you can still get a J-1 visa from a U. S. consulate. You may have become inadmissible or subject to a three-year or ten-year bar on reentry

P-4 visas: accompanying relatives of People With P-1, P-2, and P-3 visas

P-4 visas are issued to the spouses and unmarried children under age 21 of any P visa workers. The accompanying rela­tives are permitted to remain in the u. s., but they cannot work.

5. R-1 visas: religious Workers

An R-1 visa is available to a person who has been a member of a legitimate reli­gious denomination for at least two years and has a job offer in the u. s. to work for an affiliate of that same religious or­ganization. R-1 visas may be issued to both members of the clergy and lay reli­gious workers. The initial stay can be up to three years, and the maximum stay is five years.

The criteria for qualifying are the same as those for religious workers applying for special immigrant green cards dis­cussed in Chapter 12 (see that chapter for the details), with one big difference. unlike the green card category, it is not necessary that R-1 visa workers were employed by the religious organization before getting the visa. They need only have been members for two years.

usually, people qualifying for R-1 visas also qualify for green cards as special immigrants and may prefer to apply directly for a green card.

6. R-2 visas: accompanying relatives of Those With r-1 visas

spouses and unmarried children under age 21 of R-1 visa holders can get R-2 visas. This allows them to stay in the u. s., but not to accept employment.

image227

Possibilities for a Green card
From O, P, or R Status

Having an O, P, or R visa gives you no legal advantage in applying for a green card. Realistically, however, it is probably easier to get an employer to sponsor you for an O, P, or R visa than for a green card. Also, coming to the U. S. first with a temporary work visa gives you the opportunity to decide whether you really want to live in the U. S. permanently. Once you are in the U. S. with a work permit, it is also usu­ally easier to find an employer willing to sponsor you for a green card.

O and P visa holders are not required to have the intention of returning to their home countries. Accordingly, applying for a green card while in the U. S. on an O or P visa will not jeopardize your status.

R visa holders are required to have the intention of returning home once the visa or status expires. Therefore, if you apply for a green card, it may be difficult to obtain or renew an R visa. Many religious workers qualify for green cards as special immigrants. If you are a religious worker and want to remain in the U. S. permanently, you should read Chapter 12 before apply­ing for an R visa.

B. Quick view of the O, P, and R visa Application Process

Once you have been offered a job, get­ting an O, P, or R visa is a two – or three – step process:

• First, your u. s. employer files what’s called a “visa petition” on usCIs Form I-129. If you’re already in the U. S. in lawful status, this pe­tition can simultaneously ask that your status be changed to O, P, or R, in which case the process will successfully end here.

• If you’re outside the U. S., then after the visa petition is approved, you submit your own application for an O, P, or R visa to a u. s. consulate.

• Finally, you use either your visa or the notice of your approved visa petition to enter the u. s. and claim your O, P, or R status.

Nothing stops you from helping with the employer’s tasks during this application process. For example, you can fill out forms intended to be completed by your employer and simply ask the employer to check them over and sign them. The less your U. S. employer is inconvenienced, the more it will be willing to act as sponsor for your visa.

C. Step One: Your Employer Submits a visa Petition

Your employer starts the process off, by filing a visa petition with USCIS, on Form I-129. (If you’re self-employed, you will need to hire an agent in the U. S. to file the petition for you; see 8 C. F.R. § 214.2(o)(2)(i).) The object of the petition is to prove four things:

• that you qualify for O, P, or R status

• that your future job is of a high enough level or appropriate na­ture to warrant someone with your advanced or specialized skills

• that you have the correct back­ground and skills to match the job requirements, and

• in the case of o and P visas, that appropriate labor unions or similar organizations have been consulted concerning your eligibility.

Preparing Your U. S. Change of Status application

Before submitting your application, you’ll need to pay a fee (currently $100) to support the u. s. student tracking data­base called sEVis. Your school may take care of processing this fee payment for you. If not, you’ll need to do it yourself, either online or by mail. To submit the form online, go to www. FMJfee. com (us­ing a credit card and completing the on­line Form I-901). To submit the form by mail, download it from the Immigration and Customs Enforcement (ICE) website at www. ice. gov/graphics/sevis/pdf/ I-901.pdf, and mail it, together with your check or money order drawn on a u. s. bank and payable in u. s. currency, to the address indicated on the form.

For more information on these require-ments, see www.ice.gov/graphics/news/ newsreleases/articles/SEVISFactSheet. htm. After you get a receipt for your fee, you can proceed with your change of status application. The checklist below will help you assemble the necessary items for the change of status application.
Checklist for J-1 Change of Status Application □ Form I-539, Application To Extend/Change Nonimmigrant Status, with accompanying fee (currently $200; send a check or money order, not cash). One Form I-539 and fee will cover you, your spouse, and all your children, if they are in the U.S. with you and in the same visa status or accompanying beneficiaries of your current visa status. But be sure to complete the I-539 Supplement for your spouse and children. □ SEVIS DS-2019, filled out by your school and signed by you. □ Receipts for having paid your SEVIS fee (currently $100). □ Copies of proof of your family members' relationship to you, such as marriage and birth certificates. □ Your original Form I-94 (and those of your spouse and children, if they're applying with you) or other proof of your current lawful, unexpired immigration status (except Canadians just visiting the U.S., who are not expected to have I-94 cards). □ If either you or your spouse has ever been married before, copies of divorce and death certificates showing termination of all previous marriages. □ If your program involves studying at a school, transcripts, diplomas, and results of any standardized tests required by the school you'll be attending, showing your previous education and your qualifications to pursue your chosen course of study. □ Documents showing reasons that you'll return to your home country, such as ownership of real estate, relationships with close family members staying behind, or proof that a job will be waiting for you on your return. □ If your program doesn't include salaried employment, proof of sufficient funds, such as: □ Form I-134, Affidavit of Support from a U.S. friend or relative, or a letter from a friend or relative promising support. □ Bank statements. □ Personal financial statements. □ Evidence of your current sources of income.

For additional explanation of some of the items on this checklist, see Subsec­tion G1, above.

Extension Petition

Extension procedures are identical to the procedures followed in getting the initial visa, except that less documentation is

generally required. However, the best practice is to fully document the extension request with all of the documents submit­ted with the initial petition, as USCIS will probably not have the file on site.

Working While Your Extension
Petition Is Pending

If you file your petition for an exten­sion of O, P, or R status before your authorized stay expires, you are automatically permitted to continue working for up to 240 days while you are waiting for a decision. If, however, your authorized stay expires after you have filed for an extension but before you receive an approval, and more than 240 days go by without getting a decision on your extension petition, continued employment is not autho­rized and you must stop working.

2. visa revalidation

If you leave the U. S. after your extension has been approved, but the underlying visa has expired, you must get a new visa stamp issued at a consulate. Read Section D, above. The procedures for consular extensions are identical. ■

image233