The US Immigration system has an interesting way of classifying foreigners who enter the country. In fact if you have an E-3 visa, J-1 or H-1B visa and somebody complains that you are just another immigrant taking jobs from US Citizens, you can reply and say “well actually I am not an immigrant….I am a non-immigrant” 🙂

So what is the difference between a non-immigrant and immigrant in the US and thus the immigrant and non-immigrant visa as it is a different classification than most countries’ systems?

The Non-Immigrant Visa

Well a non-immigrant is anyone who had to establish prior to coming to the US that their permanent residence is outside the US and that they intend to return their after their temporary stay is over.

So of course non-immigrants includes tourists, including those on the visa waiver program, but this also includes those on H-1B visas, E-3 visas, J-1 Work and Travel Visas, J-1 Internship Visas, L-1 visas, TN visas, F-1 visas, B1/B2 visas, etc. All of these people in one form or another have to prove to their US consular or embassy officer that they have strong ties to their country of residence and intend to return their at the end of their US stay.

S0me visas like the H-1B and L-1, have what is known as a dual-intent provision which basically means they can apply for permanent status via their employer while on their non-immigrant status. The E-3 visa in practical terms seems to allow this too although it is not explicitly stated like the H-1B visa for example.

So what constitutes Strong Ties?

There is no set definition and the practical workings of this seem to differ greatly by country and also where a person may be born and even their heritage.

For example someone born and raised in Canada or the UK seem to have to prove little to prove they will return home as it assumed as they come from a rich Western country, probably with strong family and property/asset ties to home, they will return.

On the other hand someone who is from a 3rd world country or is a foreign born and raised citizen of say Australia, seems to have a higher burden of proof to prove strong ties and that they will return home as the US views them as a higher risk. Many view this as a racist policy and in some ways it really is but that tends to be the nature of modern immigration systems in Western Countries.

A strong tie can be;
– family members all residing in home resident country
– bank accounts held in country
– property ownership or significant assets like cars, businesses, etc.
– or anything seen as a compelling reason for a person to return home

As I said the burden for someone to prove this at their consular interview is really dependent on where they come from and sometimes how strict their assessing consular officer may be.

Due to way the regulations are written, it is up to the non-immigrant to prove these strong ties at the discretion of the consulate  or otherwise you can be denied a non-immigrant visa under condition 241(b).

You can re-apply for a non-immigrant visa if you are denied for this reason but you have to show further evidence of your strong ties and your compelling reason to return back to your home country of residence.

The Immigrant Visa

There is less to say about these types of visa as in practical terms these are permanent residency visas of some description. They fall under 3 categories being;
– Family Sponsored (direct relatives only)
– Employer Sponsored
– Special Category

You can read about all of these categories further and their defining characteristics at our How Do I Get A Green Card post and of course about the Green Card Lottery which is another way people can obtain permanent status in the United States.

Thus people in this section do not have to prove ties to their home country as their intention is to reside in the US. However you should note there are limited quotas with most of these visas as well as strict criteria to obtain one and long wait periods particularly in the family sponsored section for certain direct relatives.

Many people apply to transfer to an Immigrant Visa from a Non-Immigrant Visa like H-1B but depending on the country of residence this can also be a long wait as well.

I hope this helped clarify the difference between Immigrant and Non-Immigrant status in the US and this confusing part of the US Immigration system!

CJ