“I” Visa for Representatives of Foreign Information Media
Visa Reserved for Information Media Workers
Speedy Consular Processing (2 weeks or less)
Indefinite Stays in the USA
Spouses and Minor Children May Accompany
“I” is a visa category that generates quite a lot of buzz among business immigration lawyers, given the high profile clients attracted by firms with the expertise to properly assess these matters and to process the relevant application through to a successful conclusion. However, quite aside from the perceived “sexiness” of this visa category is the hard fact that the “I” visa category is virtually the only visa category that specifically authorizes access to the United States to professionals in the foreign information media seeking to report to their audiences back home regarding events in the United States. Hence, immigration lawyers who specialize in these visas are recognized as quasi-media lawyers and frequently work hand-in-hand with their attorney counterparts handling the transactional side of these matters.
Given that Ortega-Medina & Associates receive a high volume of enquiries from foreign journalists of all stripes and from foreign media outlets wishing to send reporters, film crews, editors, and other persons in similar occupations to the United States on assignment – some of whom qualify under the applicable regulations, and many of whom do not — we herein provides the following summary of the I visa requirements, which should facilitate an initial in-house assessment of the viability of such an application.
History of the “I” Visa Category
In 1952, the United States legislature created a special nonimmigrant category for members of representatives of the foreign media, for the specific purpose of facilitating the exchange of information among nations, on a basis of reciprocity. This non-immigrant group is assigned visa classification symbol “I”.
In creating the new category, the legislature specifically precluded representatives of foreign information media from entering as temporary visitors for business. This prohibition, drew a great deal of attention in 2003 and 2004 when several foreign journalists were turned back at ports of entry for trying to enter as visitors for business in B classification. As a result of this, the Department of State (DOS”) sent a cable to all consular posts advising anew that journalists were not permitted to enter the United States to practice their profession in B status, either with a B visa or under the terms of the Visa Waiver Program
The statutory bar to the B admission of representatives of foreign information media is now regularly enforced. However, there is one notable exception to this rule: Under a new policy of US Customs and Border Protection (“CBP”), port directors have the discretion to admit a foreign information media representative in B status one time, and upon that admission, the representative will be given notice that for any future entries, he must have the correct visa classification.
The “I” Visa Category Today
Classification under the “I” nonimmigrant visa category is available to an alien who is a bona fide representative of foreign press, radio, film, or other foreign information media entering the United States solely to engage in his or her vocation. It is also available to the alien’s spouse and children who are accompanying or following to join him or her. (Note: “Television” is specifically included in the term “other foreign information media.)
An additional requirement for “I” visa issuance that is not written into the statute is that the alien’s activities must be “essential” to the foreign information media function. Aliens whose activities are considered to be essential have included:
media film crews;
video tape editors; and
other persons in similar occupations.
Persons whose functions are deemed to be associated with essential activities, such as proofreaders, are not eligible for “I” classification. They may, however, qualify for another visa category, such as “H”.
What Constitutes “Information” for “I” Visa Purposes
The question of what is considered information for purposes of “I” classification does not appear to have been properly considered. Whilst one normally associates the term with the specific activity of news-gathering, “I” visas actually have a somewhat wider application. As such, the Department of State has issued “I” visa to such individuals as an editor entering the United States to work for the US subsidiary of his foreign employer, a publisher of foreign textbooks; as well as writers for online publications, including e-magazines.
Given that “I” classification is granted only on a basis of reciprocity, the foreign country in which the information medium has its home office must grant like privileges to representatives of US information media. Generally speaking, this reciprocity exists with all foreign countries.
What Constitutes ”Foreign Information Media” for “I” Visa Purposes
Neither the relevant statutes, regulations, consular manuals, or case law define the term “foreign media” for “I” visa purposes. Quite aside from the simple regulatory requirement that the medium have its “home office in a foreign country” no other guidelines exist to determine whether a medium is foreign, which can prove to be a double edged sword for some applications.
a.) US-Owned Media Organizations
The question often arises whether a US-owned media organization qualifies to “sponsor” an “I” visa application. On this question, in 1997 the Visa Office of the DOS took the following position:
“[M]ajority U.S. ownership should not preclude [truly international news organizations] from being considered foreign media for some purposes…”
Additionally, to determine whether a news organization is “foreign in nature”, for “I” visa purposes, the Visa Office has fashioned the following test, which we paraphrase as follows:
To establish that a US-owned news organization is foreign in nature, it is not sufficient to establish that its operations are international. Instead it must be demonstrated that the office for which the alien is working is not engaged in any substantial dissemination of its product in the United States.
Based on the above-referenced test, it would appear that a representative of a international information medium that is US-owned may qualify for an “I” visa if the home office is headquartered abroad and all of the information that is gathered is disseminated outside the United States. What would constitute “substantial” dissemination of the product in the United States, and thus make the “I” visa unavailable, is not clear and is an issue open to advocacy by the immigration lawyer of the organization.
What appears clear according to the 1997 Visa Office opinion, is this: A US company may properly establish and incorporate a subsidiary abroad that is in the information business, which has its home office abroad, and which disseminates its information wholly abroad. Representatives of that entity should be eligible for “I” visas.
b.) Non US-Owned or Mixed-Ownership Media Organizations
In the absence of regulatory guidance, an immigration lawyer may argue that definitions governing L visa status should apply to the “I” visa category in the case of mixed ownership. Borrowing from the L visa context, a qualifying relationship may be established by demonstrating the existence of a 50-50 joint venture between a US and foreign organization where there is a foreign-sited office. Similarly, an argument may be made that an information medium that is 50 percent owned by a US entity and 50 percent owned and controlled by a non-US entity may also qualify. In short, an organization with multiple ownership interests should also qualify as long as the percentage of foreign ownership predominates over any US ownership interest.
The DOS has imposed other criteria to determine whether an organization is “foreign” when the information medium is not clearly foreign-owned. Among these is an examination of where the information is disseminated. If the information is disseminated solely outside of the United States, it is more likely that the organization will be deemed to qualify as a “foreign” medium.
Which Entity May Employ the “I” Nonimmigrant?
The regulations governing “I” status, both those issued by USCIS and the State Department are silent on the question of who may be the employer of a nonimmigrant in “I” status. The employer sanction provisions add only minimal guidance, stating that an “I” nonimmigrant “may be employed only for [not by] the sponsoring foreign news agency or bureau.” If a reporter, who, for example, is employed abroad by a major European newspaper, enters the United States on an “I” visa to work in that paper’s Washington, D.C. bureau, may he be employed and paid by the bureau, or must he remain on the payroll abroad? According to the State Department, he may be employed by or paid by either. An alien, says the Department of State, may qualify for “I” classification as long as he or she works for a wholly-owned subsidiary of the foreign company in the United States or for the US branch office. It is an open question whether the subsidiary may be less than wholly owned by the foreign company or whether employment by· an affiliate would qualify.
a.) Informational or Educational Material
Aliens engaged. in the production or distribution of film/video only qualify for “I” classification when the materials are of an informational or an educational nature. Persons intending to work on materials that are entertainment-oriented cannot receive “I” classification.
b.) Independent Production Companies
Until July 2004, employees of independent production companies involved in filming a news event or documentary could have been eligible for “I” classification, but only if they had credentials issued by a professional journalistic association. The credentialing rule was changed by the Department of State and Department of Homeland Security in July 2004. The State Department noted that credentialing is not available to employees of independent production companies in many countries, including the United States and Canada. Therefore, many who satisfy the definition of foreign information media representative had been unable to obtain “I” visas or “I” classification. Because “I” status is reciprocity-based, and the United States itself has no credentialing authority, the Department determined that it was “inappropriate” to deny “I” status. to employees of independent production companies, otherwise “I”-quailified, simply because a journalist credential is unavailable.
Accordingly, the rule was revised to provide that where the sending country does not have a credentialing authority, or where the credentialing authority does not have jurisdiction over the class of journalist to which the foreign national belongs, that foreign national “qualifies for “I” status. The Foreign Affairs Manual was revised to reflect the change.
The film or video tape produced must be used by a television station or other media to disseminate information or news; the film cannot primarily be used for a commercial or advertising purpose. “The production company, however, is not precluded from using the film for commercial purposes at a later date.
Employees of Organizations Disseminating Technical Industrial Information
Employees in the US offices of an organization that distributes technical industrial information are eligible for I visa classification.
Freelance Media Workers
Aliens with credentials issued by a professional journalistic organization may receive I visa classification if they are working under contract on a product to be used abroad by an information or cultural medium to disseminate information or news that is not primarily intended for commercial entertainment or advertising. According to the regulations, the alien must have a “valid employment contract”. However, what constitutes a valid employment contract is not stated. Hence, critical to these case is a proper review of the employment relationship by the responsible immigration lawyer.
Spouses and Children
The spouse and children accompanying or following to join an alien qualified for I visa classification may also receive “I” visa dependent classification. They may attend school without changing status to student visa status.
Terms of Admission
General Terms of Admission
An alien applying for entry under the “I” nonimmigrant visa category must show that he or she is entitled to this classification and is admissible under the general provisions of the relevant immigration laws and regulations. Specifically, the alien must establish that he or she seeks to enter the United States to represent in good faith a foreign information medium and will depart from the United States upon termination of that status.
A person in I visa category is subject to the general conditions of admission applicable to all nonimmigrants. However, applicants for I visa status do not have to establish that they have a residence abroad that they have no intention of abandoning. Instead, the alien may be admitted for the entire duration of his or her employment. Given that the admission is for duration of status, no applications for extension of stay are necessary. Dependents of the principal alien are also admitted for duration of status.
The applicable regulations specify that admission in I visa status “constitutes an agreement by the alien [with the US government] not to change” the information medium or his or her employer without first obtaining governmental permission. Guidance should be sought from the responsible immigration attorney as to how governmental permission should be secured.
Employment Authorization for I Visa Spouse and other I Visa Dependents
Whilst the spouse and minor dependent children of an I visa holder are not authorized to accept work, USCIS Operating Instructions suggest that the Service will not deem unauthorized employment to be a violation of I visa status, as long as the principal I visa holder continues to maintain his or her status. However, in our opinion, USCIS would very likely hold such authorized employment to be a bar to an application for US residency via adjustment of status, or to a change to any other visa status.
Change of Nonimmigrant Status to I Visa Status
Occasionally, a foreign national entering the United States in a different nonimmigrant classification may seek to change that status to I visa status. Whilst traveling abroad to make a consular application for an “I” visa is an alternative, it should be noted that USCIS does allows changing status from within the United States as long as convincing evidence can be provided that the applicant is working (or will be working) for a qualifying foreign employer.
Choice of Classification
Although under certain circumstances an alien may qualify for H-1B, L-1A, L-1B, or O-1 classification as well as for “I” classification, the “I” visa classification is more desirable. The “I” visa is generally issued by a consular officer following presentation of a properly presented application coupled with a statutory statement from the sending information medium, avoiding lengthy USCIS processing times.
Admission in I visa status is for the duration of the status; obviating the need for extensions of stay, both for the principal alien and his or her dependents. Persons engaged in foreign information media activities who are also eligible for classification as treaty traders or treaty investors must be classified under the I visa category.
Ortega-Medina & Associates has over fifteen years experience dealing with US business visa matters. We have experienced success in many cases that were considered hopeless by other law firms. If we decide to take on a case, it is because we feel it stands a strong chance of succeeding. If your I visa application is denied, for any reason other than a determination that you are inadmissible for reasons of criminality or fraud, we will troubleshoot the denial at no additional cost to you and/or attempt to reprocess your case in an alternative visa category. Please contact us so that we can help you determine whether you are an appropriate candidate for the I visa category.