9 fam 400
nonimmigrant visas

9 fam 401
Nonimmigrant Status

9 FAM 401.1

Introduction to Nonimmigrant Visas and Status

(CT:VISA-426;   08-02-2017)
(Office of Origin:  CA/VO/L/R)

9 FAM 401.1-1  Related Statutory and Regulatory Authorities

9 FAM 401.1-1(A)  Immigration and Nationality Act

(CT:VISA-1;   11-18-2015)

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)).

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-1;   11-18-2015)

22 U.S.C. 611 - 613.

9 FAM 401.1-2  Overview- Nonimmigrant Visas and Status

(CT:VISA-1;   11-18-2015)

a. Nonimmigrant visas are for international travelers coming to the United States temporarily.  The visa 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, a visa does not guarantee entry into the United States.  CBP will decide how long a nonimmigrant alien 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.  Nonimmigrant visa classification is defined by immigration law and relates to the principal purpose of travel.

9 FAM 401.1-3  Entitlement to Nonimmigrant Status

9 FAM 401.1-3(A)  Statutory and Regulatory Authorities

9 FAM 401.1-3(A)(1)  Immigration and Nationality Act

(CT:VISA-1;   11-18-2015)

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)).

9 FAM 401.1-3(A)(2)  Code of Federal Regulations

(CT:VISA-1;   11-18-2015)

22 CFR 40.6; 22 CFR 41.11.

9 FAM 401.1-3(B)  Length of Stay and Permissible Activities

(CT:VISA-225;   10-20-2016)

The Immigration and Nationality Act (INA) makes basic distinctions between immigrant aliens and nonimmigrant aliens with regard to length of stay and permissible activities.  The immigrant is admitted into the United States for permanent residence without restriction as to length of stay and may engage in virtually every legitimate activity in which a U.S. citizen may engage.  An immigrant may be subject for removal if, for example, he or she is convicted of a crime or other conduct specified in the INA as a ground of removal.  The nonimmigrant alien may remain only until a predetermined date and may engage only in activities allowed for the assigned nonimmigrant classification under INA 101(a)(15).  The nonimmigrant alien will be subject to removal or other measures if he or she fails to maintain nonimmigrant status, fails to depart at the end of the authorized period of stay, or engages in unauthorized activities. 

9 FAM 401.1-3(C)  Restrictions on Employment

(CT:VISA-225;   10-20-2016)

a. The most significant restriction on activities of nonimmigrant aliens relates to employment.  In certain nonimmigrant 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 for which all other requirements are met by the applicant.  Refer to 9 FAM guidance on the particular NIV class at issue 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 of time.  It is important to note, however, that this need not always be the case.  For example, an alien employed in an occupation subject to seasonal fluctuations might apply for a tourist visa for the purpose of earning money in the United States during the slack season at home and then returning home to resume regular employment.  Thus, the alien may not intend to remain in the United States longer than would be authorized, but may clearly intend to engage in unauthorized activities during the stay in the United States and thus may not qualify under certain nonimmigrant classifications for that reason. 

9 FAM 401.1-3(D)  Intent to Adjust Status

(CT:VISA-225;   10-20-2016)

If an alien wishes to enter the United States in order to remain there permanently, you must not generally suggest that the alien apply for a nonimmigrant visa (NIV) and then seek adjustment of status under INA 245.  You must review the requirements of the specific visa classification sought in order to advise the applicant regarding adjustment of status.  If the classification is subject to a residence abroad requirement, then travel to the United States 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 lawful permanent resident.

9 FAM 401.1-3(E)  INA 214(b)

(CT:VISA-277;   01-05-2017)

a. The INA distinguishes nonimmigrants from immigrants by considering all visa applicants to be immigrants unless they can prove that they are entitled to an NIV classification.  INA 101(a)(15) of the Act defines an immigrant as a visa applicant who does not meet the requirements of one of the nonimmigrant classifications listed in that section.  To render this distinction operational, INA 214(b) presume all applicants to be immigrants until they prove to you that they qualify for the nonimmigrant visa classification sought (with the exception of H-1B, L, and V visas). 

b. In order to be classified as a nonimmigrant, the alien must prove “to your satisfaction that he or she is entitled to a nonimmigrant status under INA 101(a)(15) (with certain exceptions).”  Thus, the alien must provide you a credible showing that he is entitled to nonimmigrant status and that his intended activities are consistent with the status for which he is 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 credibly engage in the activities authorized under the particular NIV classification, that the alien will abide by the conditions of that nonimmigrant classification, and that the alien will thereby maintain lawful status. 

d. When adjudicating NIV applications, you must be careful to recognize 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) itself.  If an applicant fails to satisfy you that he or she is entitled to the relevant status under INA 101(a)(15), that determination does not constitute an independent ground of inadmissibility under INA 212(a) and shall not be used as such.  Any questions arising under those sections regarding whether or not an activity is permissible in the specific classification must be addressed through the appropriate advisory opinion (AO) process. 

9 FAM 401.1-3(F)  Residence Abroad

9 FAM 401.1-3(F)(1)  When Residence Abroad Required

(CT:VISA-225;   10-20-2016)

Some NIV classifications impose the specific 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, he or she is not eligible for the requested NIV classification and you must refuse the applicant accordingly.

9 FAM 401.1-3(F)(2)  Residence Abroad Defined

(CT:VISA-225;   10-20-2016)

a. The term “residence” is defined in INA 101(a)(33) as the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent.  This does not mean that an alien must maintain an independent household in order to qualify as an alien who has a residence in a foreign country and has no intention of abandoning.  If the alien customarily resides in the household of another, that household is the residence in fact.  NOTE:  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 nature of the visa classification.  Discussion of the requirement in the relevant sections will provide guidance. 

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 need not be the alien’s former residence.  For example, an alien 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 alien, 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 as long as the alien’s current intent is to return to a foreign residence.

e. You may properly issue visitor visas to aliens with immigrant visa (IV) applications pending with the United States Citizenship and Immigration Services (USCIS).  You must be satisfied that the alien’s intent in seeking entry into the United States is to engage in activities consistent with B1/B2 classification for a temporary period and that the alien has a residence abroad which he or she does not intend to abandon.  While immigrant visa registration is reflective of an intent to immigrate, it may not be proper for you to refuse issuance of a visa under INA 214(b) solely on the basis of such registration, unless you have reason to believe the applicant’s true intent is to remain in the United States until such a time as an immigrant visa (IV) becomes available.

9 FAM 401.1-4  Maintenance of Status and Departure Bond

9 FAM 401.1-4(A)  Statutory and Regulatory Authorities

9 FAM 401.1-4(A)(1)  Immigration and Nationality Act

(CT:VISA-1;   11-18-2015)

INA 214(b); INA 221(g).

9 FAM 401.1-4(A)(2)  Code of Federal Regulations

(CT:VISA-1;   11-18-2015)

8 CFR Part 213; 22 CFR 41.11(b).

9 FAM 401.1-4(B)  Bonds Should Rarely Be Used

(CT:VISA-1;   11-18-2015)

a. Although 22 CFR 41.11(b)(2) permits you, in certain cases, to require a maintenance of status and departure bond, it is Department policy that such bonds will rarely, if ever, be used.  The mechanics of posting, processing, and discharging a bond are cumbersome, and many Department of Homeland Security (DHS) offices are reluctant to accept them.  In addition, the nature of the bond can often lead to misunderstanding and confusion, especially in countries where surety bonds are uncommon.  The result can be a public misperception that you actually have requested a bribe in order to issue the visa. 

b. Bonds are not effective guarantees of departure.  In an era when some potential migrants are willing to pay thousands of dollars for false documents or smugglers’ services, possible forfeiture of a bond is little deterrence, and sometimes might be cheaper than other means of illegal entry.  If an applicant is likely to violate status or fail to return to his or her residence abroad, you must refuse the visa under INA 214(b). 

9 FAM 401.1-4(C)  Department Approval Required in Bond Cases

(CT:VISA-1;   11-18-2015)

You must obtain approval from the Department (CA/VO/F) before requesting that an applicant post a maintenance of status and departure bond. 

9 FAM 401.1-4(D)  Bond Requirement Determined by Consular Officer

(CT:VISA-1;   11-18-2015)

The second proviso to INA 221(g) provides for the posting of the maintenance of status and departure bond only in cases of applicants for B or F visas.  The posting of such a bond should be required of an applicant only if you are not fully satisfied that the applicant will maintain visitor or student status in the United States and depart as required.  Under no circumstances should a consular officer rely on such a bond as a substitute for a reasoned judgment with respect to the applicant’s eligibility for a visa.

9 FAM 401.1-4(E)  Amount, Validity Period, and Posting of Bond

(CT:VISA-1;   11-18-2015)

The maintenance of status and departure bond is to be posted with the DHS district director having jurisdiction over the area of the United States in which the applicant proposes to visit or pursue a course of study.  After acceptance by DHS, the bond is valid for 1 year.  Bonds are normally required in amounts ranging from a minimum of $1,000 to a maximum of $5,000 in increments of $500.  In considering applications by a family group, you may require the posting of a bond by all, some, or only one of the applicants. 

9 FAM 401.1-4(F)  Bond Posted and Accepted Prior to Visa Issuance

(CT:VISA-1;   11-18-2015)

After requiring the posting of a bond, you may not issue a visa to the applicant prior to the receipt of notification from the appropriate DHS district director that the bond has been posted and accepted. 

9 FAM 401.1-4(G)  Forfeiture of Bond

(CT:VISA-1;   11-18-2015)

The maintenance of status and departure bond is not forfeited unless the alien violates status in the United States.  A change of nonimmigrant status pursuant to INA 248 or adjustment of status pursuant to INA 245 does not result in forfeiture so long as the alien complies with the terms and conditions of the status in which the alien was admitted or to which the alien later changed or adjusted. 

9 FAM 401.1-4(H)  Limitation on Visa Validity When Bond Posted

(CT:VISA-225;   10-20-2016)

You must limit visas for which a bond has been required and posted to one entry and 6 months validity.  This will enable the DHS to cancel bonds upon request without communicating with the visa-issuing post.

9 FAM 401.1-4(I)  Procedures Relating to Bonds

(CT:VISA-426;   08-02-2017)

a. Notification to Applicant:  When a bond is to be required of an applicant for a B or F visa, you must notify the applicant in writing of the requirement, and specify both the classification of the visa under consideration and the exact amount of the bond required.  This notification must also include the applicant’s full name, nationality, date of birth, and country of birth.  If a bond is to be required of more than one member of a family group, your notification must include all of the foregoing information for each person for whom a bond is to be required.  The amount of the bond for each person is to be specified.  The applicant, (or the applicant's representative in the United States), is to be instructed to submit the original, or a copy of your written notification to the DHS as explained below. 

b. Form of Collateral:  A bond may be posted in the form of cash (U.S. currency only), U.S. Treasury Bonds or Notes, or an international or domestic postal money order made payable to the “Department of Homeland Security" (DHS) in U.S. dollars.  U.S. Savings Bonds are not acceptable for this purpose. 

c.  Posting of Bond by Applicant:  An applicant who wishes to post the bond personally may write directly to the appropriate DHS district director, enclosing your notification. 

(1)  Upon receipt of such a request, the district director prepares Form I-352, Immigration Bond, in duplicate, and transmits it to the applicant for signature.  The applicant must sign the form at the consular office in the presence of two national employees as witnesses.  The applicant must also execute the block captioned "PLEDGE AND POWER OF ATTORNEY FOR USE WHEN CASH IS DEPOSITED AS SECURITY."  You must witness the execution of this block and affix the consular seal.  You must then return Form I-352 to the appropriate DHS district director. 

(2)  If the applicant will post the bond personally, but does not have, or does not desire to obligate the full amount required, he or she may also consult a foreign insurance or indemnity company to have the bond posted by an approved surety company in the United States.  In this case, your notification is to be sent to the surety company for presentation to the appropriate DHS district director.  A representative of the surety company will complete Form I-352.

d. Posting of Bond by Interested Person in the United States:  If the applicant has a friend, relative, or other interested person in the United States who is prepared to post the bond, the applicant should send your notification to that person for presentation to the DHS district director. 

e. Cancellation of Bond After Issuance of Visa:  If an interested person in the United States has posted a bond on behalf of an applicant and subsequently seeks to withdraw or cancel the bond before the applicant departs for the United States, the DHS district director will direct the interested person to have the applicant visit the consular office for cancellation of his or her visa.  Upon cancellation of the visa, you must inform the district director of the visa cancellation so that the bond may be canceled and the collateral returned to the interested person. 

f.  Notify DHS When Visa Cancelled:  In some cases the sponsor may request, prior to the alien’s departure, that the alien’s visa be canceled in order to withdraw the bond. The consular officer, after physically canceling the visa, should notify by letter the DHS office at which the bond was posted so that the bond may be canceled and the money released.  The letter should contain the applicant’s full name, date and place of birth, nationality, the amount of the bond, the applicant’s “A” serial number (shown on DHS notification of bond posting), and the date on which the visa was actually canceled.  You must make the appropriate notation on the Form DS-160, Online Nonimmigrant Visa Application to show that the visa was canceled.  See 9 FAM 403.2-5(B)(1).

g. Cancellation of Bond After Applicant’s Departure from the United States:  In some cases in which DHS has no record of the departure of an applicant for whom a bond was posted, the district director may request that the applicant appear before a consular officer abroad to verify that he or she has, in fact, returned to a foreign country.  In these cases, the officer must confirm to the district director that the applicant has departed the United States, and must furnish the date of departure as stated by the applicant, and indicate any confirming data that would serve to verify that date. 

h. Notations to be Placed in Visa Issued to Applicant for Whom Bond Posted:  See 9 FAM 403.9-8(B) paragraph (7).

9 FAM 401.1-5  Foreign Agents Registration Act

9 FAM 401.1-5(A)  Statutory and Regulatory Authorities

(CT:VISA-1;   11-18-2015)

22 U.S.C. 611 - 613.

9 FAM 401.1-5(B)  Registration Requirement

(CT:VISA-225;   10-20-2016)

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 alien in connection with a visa application suggest that the applicant may be subject to the registration requirement of the Act, you must so inform the alien 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.