In this video, we touch on a very common question: what are the possibilities of changing your status after a visa overstay?
If a person comes to the United States on a visa, whether it is a tourist visa or a student visa, there is a duration of stay that is attached to the visa. To determine the amount of time you are allowed to remain in the United States you must obtain your I-94 arrival/departure record from the CBP website.
If you entered the United States on a tourist visa you can typically stay for up to six months, and you can extend your stay for another six months. During your initial authorized stay, you may change your status to another category such as a student or investor visa. Once you have overstayed and essentially lost your legal status, it is very difficult to change to another legal status.
In this video we discuss how you can get an E-1 treaty trader visa without trading actual goods.
To qualify for an E-1 Treaty Trader Visa you must be a citizen of a treaty trader country involved in international trade
You must be coming to the U.S. to carry on substantial trade or to develop and direct the operations of an enterprise that is a commercial trader with your country of nationality
The trade must be conducted principally between the U.S. and the treaty country
The U.S. enterprise must conduct more than 50% of its total trade volume with the treaty country
The trade may be of a good, commodity, services, or technology
If you are the owner of patented technology in your treaty trader country for example you may qualify for the E-1 treaty trader visa. To qualify for the E-1 visa, you do not need to have actual goods coming from the treaty country to the U.S., in this case the E-1 treaty trader visa can be obtained by showing that a form of technology along with the rights will be developed in the U.S.
This was the exact situation of our client, an Israeli national who owned patented technology for physical exercise equipment, designed and licensed in Israel, but produced in China. To overcome the fact that the equipment was produced in China using Israeli technology, our office made sure to establish that the rights to build the products in China had to be approved and signed off by the company in Israel which owned the patent. In addition, our office strengthened the case by furnishing the agreements between the Israeli company and the manufacturing facility in China, to show that although the product was being manufactured in China, the Chinese facility was in fact controlled by an Israeli designer to ensure quality control and compliance with the Israeli technology owned by our client. Finally, we showed that the majority of the funds to finance the operation was coming from Israel, the treaty trader country, and documented how the product would be coming to the United States.
The J-1 is a very popular visa that is administered by the State Department, not USCIS.
How does it work and who qualifies for the J-1 Cultural Exchange Visa?
The J-1 visa allows individuals such as students and trainees to come to the United States to receive practical training or participate in an internship program, to gain experience in a particular field of study, and take that experience and skill set back to the country of origin. The practical training or internship program should be one that is not available in the individual’s country of origin. The J-1 cultural exchange visa program allows the foreign national to obtain experience that they would not have otherwise obtained in their home country.
The J-1 visa requires a third-party sponsor that controls and supervises the J-1 program that the foreign national will participate in, while the State Department administers the filing process of the J-1 visa. The third-party sponsor also ensures that the foreign national will return to their country of origin at the conclusion of the cultural exchange program.
What types of training programs can foreign nationals participate in with this visa type?
Foreign nationals may participate in the J-1 cultural exchange visa program as au pairs, scholars, researchers, trainees, and professionals.
The E-2 treaty investor visa is a non-immigrant visa that allows foreign entrepreneurs from treaty nations to enter the United States and carry out investment and trade activities, for a specified period of two years subject to renewal. Investment activities include the creation of a new business. Foreign nationals must invest a substantial amount of capital in a new or existing business. The investment must be significantly proportional to the total investment, that is, usually more than half the total value of the enterprise or, if a new business, an amount normally considered necessary to establish the business.
Who can get it?
Only foreign nationals from treaty nations may apply for the E-2 visa. To find out if your country qualifies, click here.
Level of Investment
Therefore, the level of investment must be such that it is sufficient to justify presence of the treaty national in the United States. The investment must be in an operating business e.g. a speculative investment in undeveloped land would not qualify, whereas an investment in a real estate development project probably would. Also, a substantial part of the investment must have been made prior to applying for E-2 status.
You’ve made it to the airport, but Customs and Border Protection has denied you entry into the United States, before even boarding the plane. What steps can you take to resolve the situation?
There may be various reasons why a CBP officer may prevent you from gaining entry to the United States. The most common reasons include:
When you have been in the United States in the past on a tourist visa and you overstayed the amount of time allowed in the United States
You were previously on a tourist visa in the U.S. and applied for an extension of stay, but that application was denied
You were previously in the U.S. on a tourist visa and you did not spend at least 6 months in your home country when you returned.
You are a legal permanent resident of the U.S. but you have lost your green card, you will not be able to board a plane
If you overstayed your visa and there is a record, you will not be allowed to re-enter the U.S.
What should you do when you are denied entry?
Contact an immigration attorney to determine the reason you are not allowed to board the plane. Typically, individuals in this situation must file an inquiry to find out the reason they were denied entry. It may be worth it to visit a U.S. embassy to receive more information regarding the denial of entry. In some cases the U.S. embassy may be able to re-validate your visa, or you may be able to file a waiver if you have been barred from the United States for certain violations.
By now you know that the H-1B cap has been reached for Fiscal Year 2019. But what happens if you were not selected in the H-1B visa lottery?
In this post, we will discuss some alternatives to the H-1B visa that will allow you to stay and work in the United States.
The O-1 “Extraordinary Ability” Visa:
This visa type is for aliens of extraordinary ability in the sciences, education, business, athletics, motion picture, television, or arts industries who have received national and/or international acclaim in their field. An alien on an O-1 visa may live and work in the United States for a period of up to three years.
An O-1 visa is a great visa for people in the start-up world and technology sector. This visa is for people holding an advanced degree (at least a master’s degree) who have either started their own business, have patented inventions, are leading experts in their fields, and/or have gained notoriety in their fields as evidenced by awards and other national recognitions.
TN Visa for Mexican and Canadian Nationals
The TN visa allows nationals of Mexico and Canada to work in the United States, provided their profession is on the NAFTA list. The maximum period of initial admission to the US is three years, but visa holders may apply for extensions in amounts of one year.
E-3 Visa for Australian Nationals
Similar to the H-1B visa, the E-3 classification allows Australian nationals to travel to the United States to work in a specialty occupation. Applicants must have a bachelor’s degree or its equivalent to qualify and must work in a specialty occupation often associated with the STEM occupational fields. The E-3 visa is issued for an initial period of no more than 2 years, with extensions granted in 2-year increments.
1:37 – Our advice or suggestions for this new rule
In September 2017 the Department of State released an amended version of the Foreign Affairs Manual (FAM), which is a manual used by governmental agencies and other federal agencies that directs and codifies information that must be carried out by respective agencies “in accordance with statutory, executive and Department mandates.”
The new amended version of the manual expands the definition of misrepresentation, the types of activities that may support a presumption of fraud, and establishes changes to existing policies that federal agents must follow in making assessments of fraud or material representation.
According to the amended FAM: If a foreign national engages in any of the following activities, and applies for an immigration benefit, the FAM directs immigration officers to apply a presumption of fraud or material misrepresentation when the foreign national seeks adjustment of status:
These occupations have been repeatedly denied over the years during H-1B filing season.
Marketing Manager: It is very difficult to receive an approval with this occupation because USCIS has claimed that on the Occupational Outlook Handbook (OOH), the occupation of marketing manager does not require the individual to have a specific degree or a bachelor’s degree at all.
Business Development Manager: This occupation falls under the Market Research Analyst category. We have seen quite a few denials associated with this occupation within the past 2 years. It is difficult to receive an approval for market research analysts, and the rate of requests for evidence issued for this occupation have increased tremendously.
Legal Technical Writer/Technical Writers: We have seen increasing denials associated with this occupation since the last filing season. Extensions have also proved difficult to receive for this occupation. The common reason for denying this occupation is also that the OOH does not require the individual to have a specific degree or a bachelor’s degree at all.
Computer Programmer: Based on recent memos issued by USCIS it is very difficult to receive an approval for this occupation because USCIS does not think that a bachelor’s degree is required for this position.
Financial Analyst for Business: We have seen denials for financial analysts seeking to work for a business that isn’t involved in the financial sector. This applied in a situation where the beneficiary was seeking a financial position within a large restaurant. In this situation, USCIS has questioned whether the degree is a specialty occupation because although the position requires a bachelor’s degree, within the restaurant industry it is not common to require a degree for the position.
Sales Positions: It is very difficult to receive an H-1B for a sales position. We would recommend reconsidering applying for the H-1B visa, or changing your position based on your job description.
Arts and Fashion: Positions that are not specifically geared toward fashion design or graphic design are increasingly scrutinized by USCIS.
If you have questions regarding your H-1B position, please contact our office for a free consultation.
In this video, attorney Jacob Sapochnick discusses the 5 main ways to obtain permanent residence in the United States. Permanent residency allows a foreign national to live and work in the United States.
The first and most common way to obtain a green card is through family based sponsorship where an immediate US Citizen relative files a petition for you the foreign national. There are generally 2 ways for a US Citizen to petition for an intending immigrant (1) file a petition with USCIS if the intending immigrant is residing inside of the United States, and entered the United States by lawful means through a U.S. port of entry and was properly inspected upon their entry or (2) if the intending immigrant resides outside of the United States, the beneficiary will need to go through consular processing to obtain an immigrant visa at a U.S. embassy or consular post abroad.
Certain extended family members (brothers and sisters) may also petition for a foreign national, however these visas are limited and subject to a waiting period according to the Visa Bulletin.
In this post, we would like to highlight one of our many client testimonials written by former client Drew Baldridge. At the law offices of Jacob Sapochnick, we offer the highest level of customer service from beginning to end. Our boutique legal practice makes our practice one of a kind. From our staff members to our attorneys, at the law offices of Jacob Sapochnick, we are constantly inspired by the stories of our clients, and work hard to make their dreams a reality.
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