The visa law of the USA is confusing and complicated. Thus, we have taken it upon ourselves to answer some important questions that we are repeatedly asked. The following should serve as an introductory guide for you.
If you would like us to handle your specific case, please contact us. Attorney and emigration consultant Thomas Schwab will gladly address your U.S. visa concerns in the context of an initial consultation and guide you through the jungle of visa applications.
Not everyone needs a visa to travel to the USA. Citizens of several nations, including the majority of European Union members, can enter the USA through the Visa Waiver Program, provided they meet other requirements, such as having no intention to work, not staying in the USA for longer than 90 days, and being in possession of a return or onward ticket. However, Canada, Mexico or the Caribbean are not permissible as final destinations of the ticket.
Before the start of the journey, only an Electronic System for Travel Authorization (ESTA) application must be submitted. A link to the appropriate U.S. Customs and Border Protection application form can be found here.
In all other cases: A visa is mandatory! You will not be allowed to stay in the USA without the appropriate visa.
Our U.S. visa experts will support you with their comprehensive knowledge. We can especially offer help if you
- would like to work in the USA,
- would like to set up a company in the USA,
- would like to send employees to the USA as a company and/or
- if you have questions about the green card.
We do not limit ourselves or our services to clients from Germany. We are also happy to advise clients from other German-speaking countries (esp. Switzerland and Austria) and, of course, German- or English-speaking clients from other countries as well.
On the other hand, we are NOT the right contact persons for
- questions regarding the Visa Waiver Program and ESTA.
Detailed information on traveling without a visa (Visa Waiver Program) and ESTA approval can be found on the websites of U.S. consulates. You can access the official ESTA page of the U.S. Customs and Border Protection here.
- Individuals who wish to travel to the USA as a tourist, student, au pair, intern or in a similar capacity.
- Individuals who wish to enter the USA through the green card lottery.
- We will provide you with the highest level of advice and support you in all U.S. visa matters - with the exception of those mentioned in point 2. We will offer you the best service and legally sound advice from professionals. Our U.S. visa expert, Thomas Schwab, is one of the few lawyers licensed by the German Federal Administrative Office as an emigrant consultant.
- As far as questions of residence and visa law are concerned, we specialize exclusively in the U.S. market. We work where we excel.
- Our clients have been satisfied with us for years. You can find some references in our list of client references.
- Unlike some of our competitors on the market, we are attorneys and tax advisors specializing in international business law and U.S. law. Your U.S. visa case will be handled by one of our German attorneys.
- You will enjoy all the benefits of hiring lawyers and tax advisors: We are subject to the supervision of the responsible chambers and the relevant professional regulations (duty of confidentiality, duty of loyalty, prohibition of conflicts of interest, reliable handling of third-party funds, etc.).
- All of our advisors, including our U.S. attorneys and U.S. tax advisors, speak fluent German and English and work at our offices in Germany.
- We are fast: We will arrange a consultation appointment for you immediately. You decide how you want to be advised: In person at our offices in Frankfurt am Main or Karlsruhe, or simply and easily by telephone or video conference.
- Your involvement in the USA will probably also raise issues of corporate law, contract law, employment law and tax law. Do you need advice in this respect? No problem - we can do much more than only cover U.S. visa law.
With us, you receive the legal and tax advice required for your complete project from a single source: U.S. contract law, U.S. immigration law, U.S. corporate law and U.S. tax law - from our well-coordinated team of German and U.S. consultants. Gone are the days when you needed to hire multiple consultants and make sure that all of them are always up to date on your project.
Have we been able to convince you? Then we look forward to your contacting us.
An obligatory part of every visa procedure is the interview appointment at the relevant consulate. The applicant must attend this appointment in person. As a rule, accompaniment by third parties (as a translator) is only possible if the applicant does not speak either English or the language of his/her residence country. Accompaniment by a lawyer is also not permitted.
The consular officer may waive an interview appointment for children under 14 years of age or for applicants 80 years of ageor older. For some time now, there have been other exceptions regarding applications in Germany. However, the applicant must fulfill a number of conditions for this:
- He/she is a German citizen or has a residence permit for Germany.
- He/she is in Germany at the time of application.
- He/she is now applying for a visa of category B, C, D, F, H, I, J, L, M, O, P, Q or R.
- He/she has already had a visa of the same category. This visa was issued after 12/31/2007 in Berlin, Frankfurt or Munich, and the applicant was older than 14 years at that time.
- The visa is still valid, or it expired not more than 48 months ago.
- He/she still has the passport with the old visa.
- The visa does not contain the notation "waiver," "clearance" or "blanket."
- His/her nationality has not changed since applying for the previous visa.
- He/she has not been denied an ESTA or a visa in the past.
Similar conditions might apply for citizens/residents of other European countries.
We have summarized for you how an interview at the U.S. consulate works and what questions are asked here.
The amount of time that passes between the submission of the application and the interview date and a decision by the authority varies. The type of U.S. visa being applied for plays a critical role, but so does whether the application is submitted during the busy summer or Christmas season. Several weeks should be allowed solely for applications to be processed by the U.S. consulate in Germany or other countries. If other U.S. immigration authorities are involved, such as in the case of a Category L visa, a waiting period of several months should be expected. Therefore, please come to us early on.
An Electronic System for Travel Authorization (ESTA) is usually issued within a few hours, provided there are no exceptional circumstances. To be on the safe side, you should nevertheless submit the application at least a few days before the start of the trip or before booking the trip.
No, not in every case, even if this initially seems incomprehensible. The visa does not grant you the right to enter the country but is merely a necessary condition for you to apply for entry at a border crossing point, unless you meet the criteria of the Visa Waiver Program.
Customs and Border Protection will use your luggage and any documents you bring with you to determine if there are any inconsistencies or discrepancies between the visa issued to you and your intentions for entering the United States. This means that, even with a visa, you can be denied entry in individual cases.
The U.S. visa is an entry document that must be valid upon entry - but in principle not for the entire duration of the planned stay in the USA. This is the reason it contains a validity date, which may vary depending on the visa category and the facts of the case.
B visas usually have a validity of ten years. If they are issued together with an exemption due to a previous conviction, they are valid for a maximum of five years.
E visas have a maximum validity of five years. In the context of start-ups, they are often granted for an initial period of only two years, particularly for the investor him-/herself.
L and O visas are usually also valid for five years. However, they only authorize entry with a valid petition. The validity of the petition depends on the facts of the case, but it usually does not exceed three years.
Immigrant visas that lead to the issuance of a green card are usually valid for a maximum of six months. The factual validity here, however, still depends on other factors, such as the validity of the medical examination report.
Unlike the above-mentioned visas, U.S. green cards do not have an expiration date. The card itself just needs to be renewedevery ten years. Entering the country with an expired U.S. green card is not impossible, but it is still not easy.
The validity date of the U.S. visa (see Question 7 above) only tells you until when you can enter the country with the U.S. visa but not how long you are allowed to stay in the USA. This decision is made by the U.S. Department of Homeland Security upon entry.
Thus, the validity of the U.S. visa must be distinguished between the validity of the visa for entry and the decision of the border official concerning the duration of stay.
Please also note (see above) that some visas allow the holder to enter the country only if in possession of a petition, the validity of which may differ from that of the visa.
If your stay requires you to remain in the USA longer than initially permitted, most visa categories allow you to apply for an extension of U.S. residency status while in the USA. However, an extension is not possible if you entered the country without a visa, i.e. through the Visa Waiver Program.
Staying in the USA on the Visa Waiver Program or on a Category B visa does not generally entitle the holder to work in the USA, even for a few days. However, what constitutes "work" in terms of U.S. residency law is not defined by law. There is only talk of performing "skilled or unskilled labor" or "gainful employment."
You should assume that this includes any activity that is usually performed for remuneration, regardless of whether remuneration is actually granted in the specific case, whether it is physical or mental work, work that requires training or unskilled work.
Exceptions exist in the cases of activities for charitable or religious organizations as well as for the installation, maintenance or repair of machinery and equipment, provided that other requirements are met. The same can apply to musicians who want to record in the USA and for painters and sculptors who wish to work on a piece in the USA - provided the recordings, paintings, sculptures, etc., are not sold in the USA.
One question we are often asked is whether remote work is permitted in the USA, that is, whether, after entering the country as a tourist and without a work visa/permit, it is permissible to work from a home office in the USA for a German employer or for German clients if the work has no substantial connection to the USA. As far as we can see, there is no concrete statement from U.S. authorities on this, and opinion among U.S. attorneys is divided. We can therefore only advise not to engage in remote work while in the USA.
U.S. law distinguishes between non-immigrant visas and immigrant visas, i.e. between temporary ("visa" in the strict sense) and permanent (green card) residence permits. While a visa in the strict sense is always issued solely for a specific purpose and is only valid or can be extended as long as the requirements are met, a green card offers more possibilities and more security.
For example, an L-1 visa only entitles the holder to work with the company specified as the qualifying company when the application was filed. A change of employer is generally not possible. The same applies to an E visa or an O visa. A job-based green card, on the other hand, does not require its holder to remain loyal to the employer through whom he/she obtained the green card.
Unlike a non-immigrant visa, a green card does not need to be renewed. After five years (in the case of spousal green cards, after three years), an application for naturalization can be submitted. As a German citizen, however, you should be aware that you may lose your German citizenship with the attainment of U.S. citizenship if you have not previously applied to retain your German citizenship. Other countries might have similar regulations or totally different ones. In any case, before applying for U.S. citizenship, you should seek advice from a lawyer of your country of citizenship. A green card also has tax consequences: Green card holders are generally subject to income tax in the USA, regardless of whether they reside in the USA or abroad.
Green cards are available for several categories: In addition to the well-known green card lottery and green cards for refugees and asylum seekers, a basic distinction is made between job-based green cards and those that require family relationships to U.S. citizens or other green card holders. With certain exceptions (in particular, for parents, children and spouses of U.S. citizens), only a limited number of green cards are available for the latter two categories. Accordingly, it may take several years before a decision is made on the application.
A U.S. green card holder is not only entitled to long-term residence in the USA. He/she is also obligated to base his/her center of life in the USA.
Basically, a green card holder should therefore spend the majority of the year in the USA., not file his U.S. tax returns as a "non-resident alien" and have both a U.S. residence and a U.S. bank account.
Anyone who has been outside the USA for more than a year is generally not allowed entry by the U.S. border agent, but must apply for a Returning Resident Visa at a U.S. consulate. However, this is usually only granted if the stay abroad was due to force majeure, e.g. a long hospital stay, other incapacity to travel or similar.
Individuals who have spent more than six months outside the USA should be prepared for a more intensive interrogation by the U.S. border agent, during which it must be proven in case of doubt that the green card holder did not want to give up his or her center of life in the USA at any time and has maintained it.
However, even those individuals who travel regularly to the USA every four months, for example, but then only ever spend a minimal amount of time there, can lose their status.
In the latter two cases, although the U.S. border patrol agent will usually (have to) admit the person seeking entry, he or she may initiate legal proceedings in which an immigration judge will then closely review whether or not the status has been lost.
Individuals who know that they must leave the USA for a longer period of time, i.e. for more than six months or even for over a year, can apply for a re-entry permit while they are still in the USA. This then entitles the holder to a stay abroad of up to two years.
Anyone who is delinquent may lose eligibility to their green cards or their status as a Lawful Permanent Resident.
A non-immigrant visa is often easier and faster to obtain than a green card. Many people who want to immigrate therefore ask themselves whether it makes sense to first apply for a visa in order to get to the USA as quickly as possible, and then start with the green card process while in the USA.
Although this is possible in principle, one should keep in mind that, for example, an E visa and an R visa, unlike e.g an O visa and a P visa, have a precondition that requires the applicant to have the intention to leave the USA again. If an individual has traveled to the USA with such visas and then applies for a green card, this might have a negative effect on any extension of the visa that may be necessary if there is a case of doubt.
The consulate charges fees for processing a visa application, the amount of which is determined by the type of visa application. For the visa categories B, C, D, F, I, J and M, the fees amount to USD 160; for the visa categories H, L, O, P, Q and R, the fees are USD 190; for the fiancée visa category K, USD 265, and, for the investor or trade visas (E-1, E-2), USD 205.
Attention: The fees, particularly the fees in euros, change very often - most notably, depending on the exchange rate. For U.S. visas that require a procedure at the immigration office in the USA in addition to the procedure at the U.S. consulate in your country, additional fees are incurred in the amount of several hundred or thousand U.S. dollars, depending on the type of U.S. visa.
Our individual services require individual fee agreements. In principle, we provide our legal services on the basis of an hourly fee, the amount of which reflects both the difficulty and complexity of the particular case and the degree of specialization and experience of the consultant handling your case.
In cases involving a large amount of time or in cases in which our clients have to adhere to strict budget guidelines, we also agree on fixed lump sums for the entire support during the process.
The question is not whether you need to apply for a visa, but more as to whether you should hire an experienced consultant for the process. The answer is a resounding "yes." For entrepreneurs and companies, it is particularly worthwhile to hire an experienced immigration lawyer. The application process for a U.S. visa does not usually end with the completion of a simple form, and, therefore, it should not be taken lightly. The denial of a visa, regardless of the reason, usually means that visa-free travel with an ESTA is no longer possible, nor is it possible if a visa is indeed granted in the second attempt.
If you do not have experience applying for U.S. visas, you should definitely not take care of the application process on your own. You will waste a lot of time, money and nerves if you do not entrust yourself to a consultant who has already processed many hundreds of cases, will routinely handle the processing of the procedure for you, will make sure that the formalities are observed and will be able to put themselves in the mindset of the clerk at the U.S. consulate.
In fact, it is not uncommon for us to be retained by clients who have initially tried "on their own" and prompted a negative decision from the consulate. Of course, a follow-up procedure will not be easier or cheaper with such a negative history. Therefore, it is best to get professional advice from the very beginning.
Generally, a prior examination by a panel physician from the U.S. Department of State is required for each immigrant visa. This type of examination is, however, also required for a K visa, which is a legal non-immigrant visa, but intended for permanent residence or a U.S. green card. The examination should not normally be more than six months prior to the time of entry on the immigrant visa, so it should be done just before the interview date at the U.S. consulate for the issuance of the immigrant visa. Detailed information about the medical examination can be found in this blog post.
Generally, anyone who is not a U.S. citizen or who already has a green card must be vaccinated against the coronavirus if they wish to travel to the USA; this applies to non-immigrants as well as those with immigrant visas.
Persons applying for an immigrant visa should please note that the panel physician (see above) does not usually perform the corona vaccination. This should have been done prior to the examination.
Anyone who has ever been convicted of a crime usually requires an exemption in order to be granted a visa. The exemption can generally only be applied for in connection with a specific visa application. Whether such an exemption is granted depends on the circumstances of the individual case, such as the amount of the penalty, the type of offense committed and how much time has passed since the last offense.
In our experience, U.S. consulates do not issue visas, and waivers are not processed while a probationary period is still in effect.
Most visa applications, in particular for a B visa, are denied due to (alleged) immigration intentions. Following this are (provisional) denials due to inadequate documentation. Denials due to false information in the visa application are the third most common reason.
Overall, applications for U.S. visas should be carefully prepared. While no one can guarantee that a visa will be granted, the risks of denial can be minimized with careful preparation. For detailed information on the grounds for denial of U.S. visas, see this blog post.
Because of the law that anyone born in the U.S. automatically receives U.S. citizenship, the USA regards the entry of pregnant women skeptically, yet there has been and continues to be real birth tourism in the United States. When applying for the visa, it must be shown in case of doubt that the purpose of the trip is not to give birth to a child in the USA - unless, for example, there are medical reasons for this.
For instance, if a visibly pregnant woman applies for a B-2 tourist visa that would allow her to stay in the USA for up to six months, this may lead to inquiries by the consular officer and possibly a denial for that reason alone.
If a man is sent to the USA via his employer and applies for a work visa for this purpose (e.g., a category E or L visa), there should generally be no problem with issuing the corresponding visa to his pregnant wife. In the end, however, the U.S. consular officer makes a decision based on his impression and entirely his own judgement.
Obtaining a green card through the lottery (Diversity Visa Program) sounds simpler than it actually is in practice because, just as with all other green cards, it is obtained through a multi-stage process.
The first step requires registration, which basically does not cost any fees. Registrations are usually only possible during a narrowly limited period, usually in the fall of a year (October/November). The official website for registration is here.
Those who have been selected in the first stage, i.e. have won, must apply for the actual immigrant visa in the second step. A separate application is required for this, which can also be denied by the U.S. authorities if the requirements are not met. That is, not everyone who wins in the initial stage will receive an immigrant visa or green card simply because they won.
An essential requirement for obtaining a Diversity Immigrant Visa is a high school diploma or foreign equivalent or two years of work experience in a field that requires at least two years of education under U.S. law.
You can find detailed and official information about the Green Card Lottery here.
Please note: We do not provide consultations for the Green Card Lottery.
Do you have questions about U.S. visas? We will gladly advise you!
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