PAGE THREE OF IMMIGRATION LAW BASICS FOR IMMIGRATION LAWYERS AND AVID READERS!

NONIMMIGRANT VISAS: AN INTRODUCTION

There are two types of visas: those for people who want to remain permanently (i.e. get Green Cards) and those who want to remain temporarily (nonimmigrants or NIVs). The word visa really confuses a lot of people when it refers to people who want to remain so I will not use it. When I state visa, I will be referring to a nonimmigrant visa.

There are a number of visas available, and they are all identified by letters of the alphabet such as B, E, L, H1B, O, P, F, J, and so on. There are visas for visitors, students, investors, and so on. The one thing they share is that you will want to enter for a temporary stay. In fact, many of our clients have had trouble entering at the border on a B (visitor) visa because the officer felt they were coming here to remain, a 214(b) violation. (If you want to impress the officer, the section is formally known as 8 USC §1184(b) [PS try not to impress them 'too' much!]).

The law offers the presumption that everyone seeking entry is an immigrant. However, there is a fine line between intent and desire (Lauvik v INS, 910 F.2d 658, 660-61). For example, you are from England visiting Florida. You love the place and tell the officer you would enjoy a life there. However, your wife is a professor at Oxford and your kids are at school. You own a beautiful home in London and have a solid life there. Your intent is not to live in Florida, but your desire is. You will not act on your desire lest you want personal problems at home!

THE BEGINNING

Everyone starts out in a foreign country, so unless you are from a country that qualifies for visa waivers (the green piece of paper they staple to your passport that allows you to enter for 3 months), you must obtain a visa. The most common are B-1, a visitor for business and B2, a visitor for pleasure. Once you have a visa and the State Dept. is convinced that you intend to visit temporarily and not work without authorization, you then either present it at a border pre-flight inspection (common in Canada where U.S. officers meet you before you board the flight) or once you land. You are then issued an I-94 card. This card determines the length of your stay.

If you are denied entry, they have to provide you timely notice of why. Usually, however it is because you have a criminal record and have not applied for and won a waiver. If that is the case, call us immediately toll-free 1-800-645-7029 or from any country (850) 668-0270. They should verbally provide you an explanation while you are still there.

The power to let you in is shared between the USCIS inside the U.S. (they have limited offices outside America) and the State Department's embassies and consulates. The problem you face is that if you are denied at an embassy or consulate, you can rarely have a judge examine the opinion. As a result, if you are able to file a case in the U.S. first, you would be wise in doing so. Certain visas must be applied for in the U.S. first and those are: H,L,K,O,P and Q visas.

TRAVEL

One very important issue I want to mention now is travel. There are certain restrictions on travel and they are complex. If you are here on any visa or Green Card application please contact a lawyer before you leave (not from the airport!) as certain times cases are considered abandoned and in others you will be stuck outside the country.

For example, let's say you applied to change status (Change of Status refers to a change from one visa to another while Adjustment of Status refers to applying for a Green Card also called a Resident Alien Card). When you leave the country, under most circumstances it is considered abandoned. You may also risk losing your current status if you have overstayed pending your new case's approval. 222(g).

The good news is that a waiver [§ 212(d)(4)] is available and this can be considered an extraordinary circumstance and you may not have to fly to your home country for the visa.

The exceptions here are the J and F visas. F visa holders can get extensions past the normal 60 days for study completion and Js can receive time past their allowed 30 extra days in order for the H-1b nonimmigrant visa to be issued or denied; this is not automatic.

CHANGING VISAS

Yes, you can change status while you are in the country. For example, a student who obtains a job offer after completion of his or her school can be an F-1 visa holder (student) and then apply during OPT (Optional Practical Training) to be an H-1b visa holder (work visa).

Careful on changes if you are a visitor. For example, if you enter as a visitor and change to a student within 60 days' time, it is considered 'improper' and could also be viewed as fraudulent. Another one we often hear about is the person who enters as a visitor and then gets married and applies for Adjustment (Green Card). No. The only exception is if you entered without the intent to remain and this was spontaneous or if you met the person while on the trip. This has caused more trouble than you can imagine as the public has a perception that they can bring someone here as a visitor and then marry him or her....the gov looks at this as fraud (technically it is premeditated of first degree fraud if you know the law and do it anyway; really not recommended.

There are cases where changing status does not apply and if your visa is subject to them, obviously, you must comply. A 'C' visa crewman for example cannot change status as cannot a TWOV. A K-1 visa holder can only enter for three months to marry the person on the petition. A J visa holder cannot change status without fulfilling the 2-year foreign residency requirement.

SPECIAL RULES FOR H1-B

This very popular work visa has an annual cap of 65,000 which was reached this year. If you apply for a Change of Status to H1b and the cap is reached before you have an approval, then you will be considered out of status as of when your pre-application (i.e. let's say you entered on a B-1 visa) visa expires. Let's say the case is approved to start the next fiscal year (their fiscal year starts in October), the person would also be considered out of status when the first visa ends.

TEMPORARINESS

The temporariness does not apply to the following visas: A,E,G,I,K,N,S,T,U, and V. The only popular ones that may apply to most of you reading this are the E (investor), and K (fiancée).

DUAL INTENT

On the topic of intent, you can, strangely enough, have an intent to remain temporarily and one to remain permanently, both at the same time. You can do this for example, by having an H-1b work visa and an application for a Green Card. This is called the Dual Intent Doctrine (Matter of H-R-, 7I&N Dec. 651, 654 (R.C. 1958). As of today, this only applied to 4 visas: H,E,L, and O. This has enormous value. For example, if you had an H-1b that expired but had filed a Green Card, and then filed for an H1-B extension, it would be denied without the doctrine. The reason is simple: If you are applying for a visa you are stating an intent to remain temporarily; the application for the Green Card indicates just the opposite.

Dual Intent is something many people take for granted, but the lack of it can bite you. For example, many Canadians who chose to enter on a TN visa and avoid the H1b, applied for Green Cards, only to discover that the TN visa (which is only issued for one-year increments) was not renewed and the person was asked to leave the country and wait for the Green Card in Canada.

NO LIMIT With the exception of H-1B & Cs, Q2 and S visas. When you do apply for an NIV you should have a passport valid for at least 6 months past the date of your intended stay in the U.S. Some countries such as the UK, Canada and Mexico have agreed to automatically extend passports. There are other countries that do this and the list is available at 64 Fed. Reg.14300-01 (Mar 24th 1999) reprinted in 76 Interpreter Releases 504 (Mar 29th 1999). Lastly, if your visa for the U.S. is in an old passport that is no longer valid, you are able to present that passport as well as a current passport in order to make your entry.

OVERSTAYS

This is a very common problem. A lot of people do not realize how serious it is when you overstay your visa. If you overstay by even one hour, you are not readmissible unless you get a new one at the consulate or embassy in your country. INA §222(g)(2), 8 USC § 1202(g)(2) unless you can prove extraordinary circumstances. This does not apply to people from Canada without I94s (the card they staple to your passport when you enter) and people on the visa waiver program [there are other minor exceptions]. Of course part of the reason it does not apply to people on the visa waiver is because it does not allow for extensions or Change of Status anyway.

MULTIPLE VISAS

You cannot have more than one nonimmigrant status at a time...can't be greedy!

MULTIPLE EMPLOYERS

When you change employers, there are multiple rules you have to follow. However, with certain visas, the visa itself does not expire simply because you changed employers, and it remains valid only for the following visas: P,H,O,L. The significance of this is not that you can work for the new employer (although if you read my article on the H1b it has its own special provisions so you can work rapidly), but if you should choose to return to employer No. 1, you still can.

CHANGE AND EXTENSION OF STATUS WHEN LATE

Yes, sometimes it will happen that you will forget about your visa extension. If you overstay, first thing you must do is not work. Next, file your new case and you can request that a short overstay be waived (consult a lawyer). If you are less than one-week late and have a very good reason, you can have the tardiness excused. Otherwise, you will have no choice but to return to your home country and start again.

PREMIUM PROCESSING

You can pay $1,000 extra for the rapid processing of your case. Any case can take a long time. A wait of several months is usual. However, if you wish a reply in 2 weeks, you pay this extra fee along with a form for PP (It is officially called Premium Processing). Now, if the USCIS comes back with questions( called RFE or Request for Evidence), they have satisfied their requirement so you really want to file a solid case because an RFE can slow you down.

PP is a good idea if you intend to work soon. You can earn back the thousand dollars in wages and it will more than make up for that fee you are paying. Not all visas qualify and you want to go the USCIS web site to see which do at this time.

CANADIANS: AN EXCEPTION

Canadians do not require a visa to enter unless they come as investors (E visa required). Proof of citizenship is required, but not a passport (if entering directly from Canada). They can enter for up to 6 months as a B-1 or B-2. If they enter under another visa, they must supply documentation.

TRAVEL ISSUES

Let's say your visa expired. As long as your I94 has not, and you have a valid passport, you can re-enter. This does not apply if you applied for a new visa outside the U.S. and for certain countries that are terrorist threats.

APPEALING A DENIAL OF CHANGE OF STATUS

There is no appeal for a denial of Change of Status but you can file a Motion to ReOpen or a Motion to Reconsider. These must be filed within 30 days of a denial so you may want to contact a lawyer immediately upon denial; 1-800-645-7029.