Contrary to popular belief, US Work visas are not confined to only skilled workers. Workers without formal education can receive them also. US work visas are in the H2 classification and are for both seasonal and temporary workers in the agriculture (H2A) and non-agricultural category (H2B). The H2 visas are highly controlled as the presiding law restricts  these visa permits to less than 10,000 visas nationally, per year. Employers in need of theses workers are required to dispense approximately the same documentation involving “necessity” as are H1B1 employers of skilled workers, but the employers are required to provide explanation as to why the need is  “temporary”: one time or seasonal based on industry demands. Visas such as these tend to as long as one year and rarely are any short of extensions given.

Thus, being granted the right to work in the United States is not an easy road. Work visas have a vast amount of competition and require both potential employer and the employee to invest a substantial amount of time as well as some money into the procedure. For the fortunate few, they are awarded education and skills, and the and the opportunity at  a profession that they otherwise would not have had the chances to obtain.

Every year many people are many people are granted US visas, with the most common being a tourist visa.  Six months can be granted to a tourist with the requirement that they can fund their travels without have to be employed while in the US. Time requested other than 6 months is at the discretion of the Immigration & Customs Officer’s. The length of the stay is displayed on the I-94 card, and the visa stamp issued by the US Embassy displays the amount of entries the vacationer can make before the expiration date of the visa.

Overstays can result in a limitation of the ability to change status and inability to return to the United State after traveling anywhere outside of the US. In the case of a student or F-1 Visa, the I-94 card my state “D/S”, which means “Duration of Status”. If a student fails to attend classes abandoning their studies, takes an unscheduled break from school or under-enrolls, s/he will suffer consequences for the visa violation. Also, if a non-immigrant alien worker in any H or L category fails to work for the sponsoring employer, changes employer without the proper application or notice to DHS/USCIS, is terminated or quits, the same consequences apply.

A visa overstay, that is, an individual with an expired I-94 card in the case of a tourist, or anyone mentioned above, is not generally permitted to change or extend his or her status. The only exception is for students who under-enroll or have an unscheduled break in school attendance if that break or under-enrollment was beyond the student’s control.

In the case of a tourist overstay, generally the only ways to remedy the status is via marriage to a US Citizen, or being the parent of a US citizen above the age of 21. In some cases, visa overstays are permitted to adjust status to lawful permanent residency status even if they are not “immediate relatives” if a petition had been filed for them under section 245(i) of the Immigration and Nationality Act. Visa overstays generally are subject to a three (3) or ten (10) year penalty and may end up in removal proceedings.

In the case of a visa waiver entrant, that is a person who is not required to have a visa but who is permitted to the enter the US for up to 90 days at a time, an overstay can result in immediate removal. The condition of a visa waiver entrant is that the entrant waives certain due process rights. S/he may not be afforded any legal proceeding, or time in front of an Immigration judge and apprehension by US Immigration and Customs Enforcement may lead to the immediate removal to the country of origin no questions asked. The only exception to this case is also adjustment of status based on an immediate relative petition.

Generally, if an individual overstays the I-94 card, even if by one day, the visa issued at the Embassy is null and void. Departure is to occur on or before the date of the I-94 card expiration to avoid this penalty.

Lawful Permanent Residency through  the marriage to a U.S. citizen is the most common way for immigrants achieve citizenship . The Immigration Marriage Fraud Amendments of 1986 allows immigration officials to criticize cases for marriage in depth. They ask for extensive amounts documents before granting  fiancée(s) marriage visas. The repercussions for marriages that deemed fraudulent can vary from monetary fine, criminal prosecution, permanent visa restrictions and possible deportation.

A petition must be filed for US citizens wishing to marry a fiancée outside the US to get a visa approved. The U.S. citizen has to provide documentation that he/she has been in a relationship with the fiancé(e) for a least last 2 years before the filing. Generally, the longer the couple has been together, the stronger the cases with be. Relationships developed through the internet are intensely scrutinized .

The International Marriage Broker Regulation Act requires the foreign fiancée to disclose all of their criminal background. The fiancé(e) or spouse will be questioned about the US citizen’s criminal record outside the presence of the US citizens spouse to demonstrate that the there has been full transparency. The case will most generally disregarded if the alien fiancée or spouse is not aware of the US citizens criminal background.

If the case is approved the fiancé(e) will obtain a K-1 visa or a K-3 visa to enter the US. The fiancé(e)s must marry within 90 days of arrival into the US and then very soon after, apply for his/her Green Card. If the couple divorces before the Green Card application is received, the application cannot be transfered to another spouse.

The immigration process in the US can place a unique strain on marriages that can often lead to divorce.  Nonetheless, the immigrant spouse, until he/she receives authorization for employment and a social security card,  is and will be dependent on the U.S. citizen spouse.

Email Nadine A. Brown