9 fam 400
nonimmigrant visas
9 fam 401
Nonimmigrant Status
Introduction to Nonimmigrant Visas and Status
(CT:VISA-2169; 07-31-2025)
(Office of Origin: CA/VO)
9 FAM 401.1-1 Statutory and Regulatory Authority
9 FAM 401.1-1(A) Immigration and Nationality Act
(CT:VISA-1202; 01-12-2021)
INA 101(a)(15) (8 U.S.C. 1101(a)(15)); INA 101(a)(33) (8 U.S.C. 1101(a)(33)); INA 214(b) (8 U.S.C. 1184(b)); INA 221(g) (8 U.S.C. 1201(g)); INA 291 (8 U.S.C. 1361).
9 FAM 401.1-1(B) Code of Federal Regulations
(CT:VISA-277; 01-05-2017)
8 CFR Part 213; 22 CFR 40.6; 22 CFR 41.11; 22 CFR 41.26; 22 CFR 41.27.
9 FAM 401.1-1(C) United States Code
(CT:VISA-1202; 01-12-2021)
22 U.S.C. 611; 22 U.S.C. 612; 22 U.S.C. 613.
9 FAM 401.1-2 Overview- Nonimmigrant Visas and Status
(CT:VISA-1389; 10-14-2021)
a. NIVs are for international travelers coming to the United States temporarily. The NIV allows the bearer to travel to a U.S. port of entry and request permission of the Department of Homeland Security (DHS) Customs and Border Protection (CBP) immigration officer to enter the United States. However, an NIV does not guarantee entry into the United States. CBP will decide how if the NIV holder may be admitted and for how long the individual may remain in the United States in nonimmigrant status.
b. International travelers come to the United States for a wide variety of reasons, including tourism, business, medical treatment and certain types of temporary work. NIV classifications are defined by immigration law and relate to the principal purpose of travel.
9 FAM 401.1-3 ELIGIBILITY FOR Nonimmigrant Status
9 FAM 401.1-3(A) Length of Stay and Permissible Activities
(CT:VISA-1389; 10-14-2021)
The Immigration and Nationality Act (INA) makes basic distinctions between immigrants and nonimmigrants regarding length of stay and permissible activities. A nonimmigrant may remain only for a specific period and may engage only in activities allowed for the assigned NIV classification under INA 101(a)(15). Nonimmigrants will be subject to removal or other measures if they fail to maintain nonimmigrant status, fail to depart at the end of the authorized period of stay, or engage in unauthorized activities.
9 FAM 401.1-3(B) Restrictions on Employment
(CT:VISA-1900; 02-01-2024)
a. The most significant restriction on activities of nonimmigrants relates to employment. In certain NIV classifications, employment is prohibited. In others, employment of a specified, restricted kind may be authorized upon fulfillment of certain requirements. Therefore, an applicant expecting to be gainfully employed in the United States may not be classified as a nonimmigrant unless the intended employment is, or may be, authorized under a nonimmigrant classification. Refer to 9 FAM 402 for guidance on the NIV category for specific employment-related restrictions.
b. An intention to accept employment is often tied with an intention to remain in the United States for an extended period. This need not, however, always be the case. For example, an applicant employed in an occupation subject to seasonal fluctuations might apply for a tourist visa to earn money in the United States during the slack season at home and then returning home to resume regular employment. They may not intend to remain in the United States longer than would be authorized but may intend to engage in unauthorized activities during the stay in the United States and may not qualify for certain NIVs for that reason.
9 FAM 401.1-3(C) Intent to Adjust Status
(CT:VISA-1389; 10-14-2021)
Generally, it is impermissible for an individual to enter the United States on an NIV to seek adjustment of status under INA 245. You must review the requirements of the specific visa classification sought to determine whether the residence abroad requirement applies. If the classification is subject to a residence abroad requirement, then travel to the United States with no intent to return to one's residence or for the specific purpose of adjusting status would be inconsistent with that visa classification. On the other hand, there are NIV classifications, such as those found at INA 101(a)(15)(H)(i)(b), (K), and (L), which hold no prohibition on residence in the U.S. or adjustment of status to LPR.
9 FAM 401.1-3(D) INA 214(b)
(CT:VISA-1624; 09-08-2022)
a. INA 101(a)(15) defines an immigrant as an individual who does not meet the requirements of one of the nonimmigrant classifications listed in that section. To put this distinction into practice, INA 214(b) presumes all visa applicants (except for applicants for H-1B, L, or V visas) to be immigrants until they prove to you that they qualify for the NIV classification sought.
b. Pursuant to INA 291, to be classified as a nonimmigrant, the applicant must prove to your satisfaction that they are entitled to a nonimmigrant status under INA 101(a)(15). The applicant must demonstrate that they are entitled to nonimmigrant status and that their intended activities are consistent with the status for which they are applying.
c. You must assess the credibility of the applicant and the evidence submitted to determine qualifications under INA 101(a)(15). You must be satisfied that the applicant will engage in the activities authorized under the NIV classification and will abide by the conditions of that nonimmigrant classification and maintain lawful status.
d. When adjudicating NIV applications, keep in mind that the standards for qualifying for an NIV are found in the relevant subsections of INA 101(a)(15) rather than in INA 214(b) or 291. Any questions of law regarding whether an activity is permissible in the specific NIV classification must be addressed through the appropriate AO process.
e. For further information on INA 214(b), see 9 FAM 302.1-2.
9 FAM 401.1-3(E) Residence Abroad
9 FAM 401.1-3(E)(1) When Residence Abroad Required
(CT:VISA-1389; 10-14-2021)
Some NIV classifications impose the requirement that the applicant maintain a residence abroad. These classes are B, F, H (except H-1), J, M, O-2, P, and Q. Like purpose of travel, maintaining a residence abroad is an essential part of eligibility for these NIVs. If an applicant fails to satisfy you of this requirement, they are not eligible for the requested NIV classification and you must refuse the application.
9 FAM 401.1-3(E)(2) Residence Abroad Defined
(CT:VISA-1624; 09-08-2022)
a. The term “residence” is defined in INA 101(a)(33) as the place of general abode which means the person's principal, actual dwelling place in fact, without regard to intent. This does not mean that an applicant must maintain an independent household to meet the requirement of a residence abroad. If the applicant customarily resides in the household of another, that household is the residence in fact. Only the following visa categories are subject to residence abroad requirements: B, F, H (except H1), J, M, O2, P, and Q. When adjudicating this requirement, it is essential to view the requirement within the context of the visa classification. See the 9 FAM guidance related to the visa classification for the relevant discussion.
b. The applicant must demonstrate permanent employment, meaningful business or financial connections, close family ties, or social or cultural associations, which will indicate a strong inducement to return to the country of origin.
c. The residence in a foreign country does not need to be the applicant’s current residence. For example, an applicant who has been living in Germany may meet the residence abroad requirement by showing a clear intention to establish a residence in Canada after a temporary visit in the United States.
d. Suspicion that an applicant, after admission, may be swayed to remain in the United States because of more favorable living conditions is not a sufficient ground to refuse a visa if the applicant's current intent is to return to a foreign residence.
e. You may issue visitor visas to applicants with IV applications pending or, with IV petitions pending with the United States Citizenship and Immigration Services (USCIS). You must be satisfied that the applicant’s intent in seeking entry into the United States is to engage in activities consistent with B1/B2 classification for a temporary stay and that the applicant has a residence abroad which they do not intend to abandon. While an active IV application or petition is reflective of an intent to immigrate, unless you have reason to believe the applicant’s true intent is to remain in the United States until such a time as an IV becomes available, you may issue the visa if the applicant is otherwise qualified.
9 FAM 401.1-4 RESERVED
(CT:VISA-2169; 07-31-2025)
9 FAM 401.1-5 Foreign Agents Registration Act
(CT:VISA-1389; 10-14-2021)
a. Persons Subject to Act: The Foreign Agents Registration Act (22 U.S.C. 611 - 613) requires persons within the United States acting as agents of a foreign principal to register with the Department of Justice (DOJ). The purpose of this Act is “to protect the national defense, internal security, and foreign relations of the United States by requiring public disclosure by persons engaging in propaganda activities and other activities for or on behalf of foreign governments, foreign political parties, and other foreign principals so that the Government and the people of the United States may be informed of the identity of such persons and may appraise their statements and actions in the light of their associations and activities.” If statements obtained from an applicant in connection with a visa application suggest that they may be subject to the registration requirement of the Act, you must so inform them and advise that registration forms may be obtained, after arrival in the United States, from the DOJ, Washington, DC.
b. Foreign Officials Exempted: Accredited diplomatic or consular officers and other officials of a foreign government are exempted from the registration requirement of the Act.