Brian D. Lerner Immigration Attorney & Deportation Lawyer Blog

Question: I know that the immigration laws now only allow me to come into the U.S. on a Visitor Visa for only 30 days. I was planning to go to the U.S. to visit, and then later, if I found a good job offer, to change my status to some type of working status. Additionally, if I later decided, I was going to change my status to that of a student. Can I still do this?

Answer: It appears that it will be much more difficult to change your status in this type of situation. Normally, when visitors came to the U.S. under the B1/B2 Visa, they had six months. At some later point after entering, they would be able to change their status. Please note that some rumors have been spreading that there is no more change of status applications being accepted. This is simply not true. Rather, it is the effect of applying for a change of status once you enter the U.S. that is the problem.

Question: Can you elaborate on what exactly is the problem?

Answer: Actually, when you come in on a Visitor Visa, you are supposed to be doing exactly that. VISITING! That means going to Disneyland, visiting relatives, and having a good time. It does not mean going to school, getting a job or applying for the Green Card. If you come to the U.S. and within 30 days apply for a change of status to some other type of status such as student or worker, the INS may not believe that you intended to ever really visit the U.S. They may assume that you used the Visitor Visa as a means to get into the U.S. so that you could do what you really wanted to do (such as work or go to school.)

Question: What if I come to the U.S. on a Visitor Visa and then marry my girlfriend in order to get the Green Card?

Answer: Again, the INS would look at this as fraud. In fact, if you get married within less than 60 days after entry to the U.S. on the Visitor Visa, you are presumed to have committed fraud. Not only will the application for Lawful Permanent Residency be denied, you could very well get deported because of the fraud.

Question: What are the consequences of doing the change of status right after entering the U.S.?

Answer: First, they could deny your change of status application and you could go out of status. Next, the INS may very well assume that you committed fraud. That is, when you got the Visitor Visa and entered the U.S. that you did not really intend to visit, but rather, intended to go to school or to work in the United States. If that happens, you could be deported because you committed misrepresentation and fraud. The fraud will stay with you forever and never goes away. If you ever want to reenter the U.S., you will need to get a Fraud Waiver. Those are not easy waivers to obtain.

Question: What is the best way to avoid these drastic consequences?

Answer: First, the way that people come into the U.S. is probably going to change. You must decide whether you want to go to school or work since these are the options you might be considering. If you are intending on going to school, then you should get the I-20 and apply for the Student Visa from your home country. Then, when you enter the U.S., you will be entering as a Student, not a Visitor. Alternatively, if you want to work in the U.S., you should have your sponsor file the petition prior to you getting to the U.S. Therefore, you will not have any allegations by INS that you committed fraud. You need to be very careful if you come to the U.S. with a Visitor Visa and then change your status right away. Obviously, since you only will be getting 30 days in the U.S., you must strongly consider not getting a change of status in the U.S.

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Question: I entered the United States a couple of months ago as a visitor and would now like to work in the United States. I have a degree in Business with an emphasis in accounting and have a couple of firms interested in hiring me. Do I qualify for a work permit, and if so, what must I do?

Answer: First, based upon your degree, you qualify for what is known as a Specialty Occupation Work Visa. This is also known as the H-1B. It is meant for positions which require specialized knowledge and where a college degree is the norm for the industry. Therefore, your position would qualify. You would need to be hired as an accountant.

Question: How do you know that an accountant is a specialty occupation?

Answer: There are many sources that can be viewed from the Department of Labor. These sources are either on the internet, or in printed publication. It basically states what the normal duties for the particular position are and what are the normal educational requirements needed to successfully perform the job.

Question: What type of company must sponsor me?

Answer: As an accountant, any company can sponsor you. Every company can use an accountant. If you had said that you had a degree in biology, your sponsoring companies would have to be much narrower. They would specifically have to deal with biology. The H-1B can be full-time or part-time.

Question: Do I have to leave the U.S. to get the visa?

Answer: Yes, you would have to leave the U.S. to get the visa. However, should you want to stay in the U.S., you can get a change of status from B2 (Visitor), to H-1B (Specialty Occupation Work Visa) Then, you would not have to leave the United States in order to start working for the company. However, if you did leave the United States, you would have to get the Visa in order to return to the United States. It is always possible to get the Visa approved at INS, but to get it denied at the Consulate. You would want to take this into consideration if you decided to leave after successfully getting your status changed to H-1B.

Question: How long does it take to get the answer from INS on whether they will approve the H-1B Petition?

Answer: Now it is taking from 6 to 9 months depending where you live. Should you want it much faster than that, you can put it through INS via Premium Processing. This is exactly what it implies. It goes to the top of the stack and is processed by INS within 15 days of receipt. All you need to do is pay INS $1,000.00 for them to process it as a Premium Process case. If they do not get the answer back to you within 15 days, then you get your $1,000.00 back.

Thus, the H-1B is a very good visa for someone with a college education to have. If you can get a sponsor related to your college degree, then you can see if the H-1B can be done. Usually, it is issued initially for 3 years and can be extended for another 3 years. In cases whereby the person has applied for Labor Certification and has waited for a considerable period of time, they can now apply for an even further extension of the H-1B. It is one of the nicest and most popular work visas available.

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Question: I have heard that in the past the USCIS has accepted work permit applications online and that this program has been very effective. Why do they not accept more types of forms online?

Answer: Actually, USCIS expanded their e-filing service online as of May 26, 2004. Now, the U.S. Citizenship and Immigration Services (USCIS) include six new forms for customers to apply for immigration benefits online to expand its E-Filing program.

Initially, when the Internet-based customer service initiative began last year (May 2003), it allowed customers to file for two of the most frequently used applications online: Application to Replace a Permanent Resident Card (Form I-90) and Application for Employment Authorization (Form I-765).

With the addition of the six new forms online, E-Filing now supports eight forms that account for more than 50% of the total volume of benefits applications USCIS receives annually. Since the establishment of E-Filing, more than 115,000 customers have chosen to apply online for immigration benefits.

Question: Can you let me know which new forms are now accepted online?

Answer: Form I-90, Application to Replace a Permanent Resident Card; Form I-765, Application for Employment; Form I-129, Petition for a Non-immigrant Worker; Form I-131, Application for Travel Document; Form I-140, Immigrant Petition for Alien Worker; Form I-539, Application to Extend/Change Non-immigrant Status; Form I-821, Application for Temporary Protected Status; Form I-907 and Request for Premium Processing Service Why Use E-Filing.

Question: Is E-filing difficult to do?

Answer: E-Filing is quick, easy and convenient because it allows you to complete and submit applications at any time, from any computer with Internet access. After filing online, you will receive instant electronic confirmation that your applications were received. You can then schedule an appointment, if necessary, to visit an Application Support Center at a convenient time – by calling the National Customer Service Center. You can schedule the appointment for the collection of a digital photograph, signature, and fingerprints. You would pay fees online with a credit or debit card or through the electronic transfer of U.S. funds from your checking or savings account. You do not need to obtain a money order or a cashier’s check.

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Question: I just married my U.S. Citizen husband in my home country. I thought I could just go to the United States and live with him. However, I found out it is actually is going to take over one year to get back together with my husband. I am heartbroken. Is there anything I can do to speed up this process?

Answer: Yes. There is what is known as a K-Nonimmigrant as the Spouse or Child of a U.S. Citizen? The Legal Immigration Family Equity Act and its amendments (LIFE Act) established a new nonimmigrant category within the immigration law that allows the spouse or child of a U.S. citizen to be admitted to the United States in a nonimmigrant category. The admission allows the spouse or child to complete processing for permanent residence while in the United States. It also allows those admitted in the new category to have permission for employment while they await processing of their case to permanent resident status.

Question: Who is Eligible?

A person may receive a K-3 visa if that person: has concluded a valid marriage with a citizen of the United States; has a relative petition (Form I-130) filed by the U.S. citizen spouse for the person; seeks to enter the United States to await the approval of the petition and subsequent lawful permanent resident status, and, has an approved Form I-129F, Petition for Alien Fiancé, forwarded to the American consulate abroad where the alien wishes to apply for the K-3/K-4 visa. The consulate must be in the country in which the marriage to the U.S. citizen took place if the United States has a consulate which issues immigrant visas in that country. If the marriage took place in the United States, the designated consulate is the one with jurisdiction over the current residence of the alien spouse.

Question: Will I Get a Work Permit?

Answer: Persons in K-3 or K-4 status and applicants for adjustment to permanent resident status from K-3 or K-4 are eligible to apply for a work permit while their cases are pending.

Question: Can I Travel Outside the United States?

Answer: If you are in K-3 or K-4 status, you may travel using your unexpired K-3/K-4 nonimmigrant visa to travel outside of the United States and return, even if you are applying for adjustment of status simultaneously.

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Question: My employer has a business in my home country and wants to send me to the United States to work in a branch office he is opening up. However, it would require that I work at different locations in the U.S. Is there a problem with doing this?

Answer: Since you will not actually be running the company, but rather, worker as a person who has specialized knowledge of the products of your company, you would fall under the L-1B category. Previously, there might not have been a problem. However, a new law regarding L-1B’s has just come into effect. The USCIS has just implemented the L-1 Visa Reform Act of 2004. The changes were mandated by L-1 Visa Reform Act of 2004 which became law last December as part of the Omnibus Appropriations Act for FY 2005. The L-1 Visa Reform Act amends previous legislation to address the “outsourcing” of L-1B temporary workers. An L-1B nonimmigrant is an alien who has been employed overseas by a firm with an affiliated entity in the U.S., who comes to the U.S. to perform services for the international entity that involve specialized knowledge.

Question: What are the changes mandated by this law?

Answer: L-1B temporary workers can no longer work primarily at a worksite other than that of their petitioning employer if either: (a) the work is controlled and supervised by a different employer or (b) the offsite arrangement is essentially one to provide a non-petitioning party with local labor for hire, rather than a service related to the specialized knowledge of the petitioning employer. USCIS will interpret the “control and supervision” provisions of the new law to require an L-1B petitioning employer to retain ultimate authority over the worker. The determination as to whether an alien is or will be employed primarily at a worksite other than that of the petitioner will depend on the specific facts presented. In addition, the bar will not apply if the satisfactory performance of such off-site employment duties requires that the L-1B temporary worker must have specialized or advanced knowledge of the petitioning employer’s product, service, or other interests, as defined under current USCIS regulations. General skills or duties that relate to ordinary business or work activities would not meet the test of whether specialized knowledge is required for the work.

Question: Therefore, what exactly is meant by this outsourcing provision?

Answer: The “outsourcing” provisions described above apply to all L-1B petitions filed with USCIS after June 6, 2005, and include extensions and amendments involving individuals currently in L-1 status. The Act also requires that all L-1 temporary workers must have worked for a period of no less than one year outside the United States for an employer with a qualifying relationship to the petitioning employer. Previously, participants in the “blanket L-1” program could participate after as little as six months of qualifying employment. This change applies to petitions for initial L-1 classification filed with USCIS after June 6, 2005; extensions of status under the blanket program are not affected by this new provision.

Question: Are the filing fees the same?

Answer: No. As with other applications, there is now a fraud related fee. There is the base filing fee of $185.00 plus the new $500.00 Fraud Prevention and Detection Fee as applicable. [Employers seeking a worker’s initial grant of H-1B or L nonimmigrant classification and employers seeking to hire an existing H-1B or L worker currently employed by another employer must pay the $500 Fraud Prevention and Detection Fee. The $500 fee does not need to be submitted by: 1) employers who seek to extend a current H-1B or L alien’s status where such an extension does not involve a change of employers; 2) employers who are seeking H-1B1, Chile-Singapore Free Trade Act nonimmigrants; or 3) dependents of H-1B or L principal beneficiaries.

Therefore, while there are changes, the L-1B still exists and you should go forward with the application assuming you qualify.

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