Returning to U.S. without a visa can be risky!
By Jim Nolan | July 21, 2010
A common question we get from people whose visa is expiring is if they can leave the U.S. right before their visa expires and then return on the visa waiver program (VWP) to either pack their things to go home or to look for other jobs or start a new business.
There is no clear answer to this and it has risks if you try to return without being prepared.
First, assuming you are from a citizen of countries that can use the VWP and have never had any trouble with law before, you can come back to the U.S. and at the airport or border ask the Immigration officer to let you back in to the country for up to 90 days as long as you have a return ticket home or, at least, a ticket out of the U.S.
However, just because you can ask to come back doesn’t mean the officer will let you in. There is always a risk he or she won’t believe you are coming to the U.S. to be a tourist, but think you are actually planning to live or work in the U.S.
Many people don’t understand that just because you say you don’t plan to live or work in the U.S. doesn’t mean that the Immigration officer will believe you. If the officer doesn’t they will hold you at the airport and put you on the next plane back to your home country.
Second, you have to see if you have any what I call “risk factors” which would cause the Immigration officer not to believe you and, if so, prepare to explain AND PROVE the situation to the officer at the airport.
The most common risk factors are:
- How long have you been in the U.S. If you have been in the U.S. for 6 years on an H-1B visa and 4 years before that as a student and are asking to return on the VWP you are a much higher risk than someone who has never been to the U.S. before
- How long have you been outside the U.S. since you last left If you just left and returned 2 days later you have a higher risk factor than if you have been out 6 months.
- Do you have any U.S. citizen or “green card” holder relatives in the U.S. If so, you are a higher risk factor than if not.
- Have you applied for a “green card” and are you still waiting for it. If yes, you are a higher risk factor
Even if you have high risk factors that does not mean you will automatically be turned away at the boarder by the Immigration officer. It does mean that you should come prepared to prove the following:
- You are really coming to the U.S. this time as a tourist or for a short-term business trip; and
- You have strong ties to your home country.
If you can show this to the Immigration officer at the airport he or she will let you in the U.S.
You can bring any kind of proof to show these points you want and you don’t have to bring all of the ones I will suggest later in this blog. However, the more risk factors you have the more proof you should try to bring.
The most common types of proof are:
Purpose of your trip to the U.S.
- If you are coming as a tourist,
- your itinerary showing your schedule in the U.S. showing tourist-type events, ideally with purchased tickets.
- A letter from a friend you are meeting confirming your visit and what you will do together
- If coming for short-term business trip,
- A letter from the people you are meeting explaining what you will be doing in the U.S.
- An explanation of who will be paying for this trip and your salary. If a foreign company is paying, a letter from this company would be very important. If you are paying yourself please bring a recent copy of your bank account to show that you have the money to do so.
Ties to your home country
- If you have a job back home, a letter from your employer or recent proof of payment with English translation
- A copy of your lease showing where you are living in your home country with English translation
- A copy of your foreign driver’s license, phone bill, electricity bill, credit card statements to your foreign address
- Letter from relatives confirming your live there and listing all of your relatives in your home country.
I would suggest you keep all your proof in your carry-on luggage, but DON’T show it to the Immigration officer when you approach him or her at the airport. I would suggest you give the officer your passport, I-94, and return ticket and wait. It is very likely he or she will just let you in the U.S. for 90 days, particularly if the lines are long. You should never tell the officer something which is untrue, but you also don’t have a duty to volunteer any information unless you are asked.
However, if you start to get questions about do you really plan to come back as a tourist and start to hear statements like you’ve been in the U.S. a long time and you didn’t stay out that long this time, then bring out your evidence and show it to the officer.
You should truthfully explain your situation and why you are coming as a tourist or on a short-term business trip and that you will return to live in your home country.
To avoid this risk, it might be safer to stay in the U.S. to get ready to leave and apply to change your status to a tourist visa while you in the U.S. You do this by mailing form I-539 and supporting evidence to Immigration. As long as you mail in your request to change your status before you old visa (plus any grace period) expires you can wait in the U.S. while Immigration decides and this usually takes a few months. If your request is approved you can usually stay in the U.S. for 6 months. However, you CANNOT travel outside the U.S. based upon this approval. You must either get a new visa stamp or use the VWP as I discussed above.
You should be fine, but it is always better to be prepared.
Topics: Practical Immigration Tips, Visa Waiver Program | No Comments »
Can I get a work visa if I work out of my house
By Jim Nolan | July 19, 2010
A common question we get from people needing a visa and setting up a new business in the U.S. is if they can use their home for their business office. This is usually for people applying for L-1 or E-2 visas.
There are two parts to answer this question.
First, there is nothing which prohibits a new company from using someone’s home for their business and successfully sponsoring a visa.
Second, Immigration is very suspicious of this and it usually doesn’t work.
If someone list their business address as their home Immigration will usually ask for one of the following documents:
- A copy of their lease showing that the landlord has approved using the apartment for commercial purposes. Most residential leases, particularly in NY, specifically say it is only to be used for residential purposes and when Immigration sees this they will not approve the visa.
- If the lease does say commercial purposes are permitted or the business person owns a home, Immigration will often ask for proof that the zone that the building is in permits commercial uses. You will have to get something from the city government to show the permit uses for this space under government law and this can be very difficult to do. If the zone permits commercial use then Immigration may approve the visa if the owner can explain it is only temporary. If the zone does not, the visa will be denied.
My experience is that it would be better for a new office to have a separate space, even in an executive suite-style space, on a month-to-month basis, than use a home office.
The best option from an immigration perspective is to rent a normal office with a commercial lease. Of course, for many new business this is cost-prohibitive for a while, and we have found Immigration will approve visas with an executive style office lease at least for the first year.
Topics: Business work visas, Company Green Card, Practical Immigration Tips, Work Visas | No Comments »
GC lottery – you can check if you won or not
By Jim Nolan | July 1, 2010
Now you can check if you were selected for the GC lottery by going to U.S. Department of State web site: http://www.dvlottery.state.gov/ESC/
To use this Web site, you need to have your Submission Confirmation ready. The confirmation page was displayed when you successfully submitted your Diversity Visa (DV) lottery entry. More specifically, it contained your Entrant Confirmation Number, Last/Family Name (or blank if none), and Year of Birth. You must have this information in order to log into the website and check the status of your entry.
Your confirmation number should be 16 characters long, and start with 2011. For example: 20112O0AZWY3DOV9. Be sure to differentiate the letter O and number 0 (zero) when you enter it.
If the information you entered matches DOS record, you will be presented with an Authentication Code. Enter this code in the text field and click Submit. If you cannot recognize all characters, you may click the speaker symbol and hear an audio clip of the code, or refresh it to try a new one. Your status will be displayed after the authorization step.
If your entry was NOT selected, you should see a message like the one below:
“Based on the information provided, the Entry HAS NOT BEEN SELECTED for further processing for the 2011 Electronic Diversity Visa program …”
If your entry was selected for further processing, the status will be:
“Based on the information and confirmation number provided, you should have received a letter by mail from the United States Department of State’s Kentucky Consular Center (KCC) notifying you that your Diversity Visa entry was selected in the DV-2011 lottery.
If you have not yet received your selectee letter, please do not contact KCC until after August 1, 2010…”
If you still have not received the notification letter in the mail by August 1, 2010, and the website indicated that your entry was selected, you should contact KCC at kccdv@state.gov.
Good luck!
Topics: Green Card Lottery | No Comments »
Can I start my own business in the U.S. on the side?
By Jim Nolan | June 8, 2010
We receive questions from people who have different types of work visas with corporate sponsors like H-1B, L-1A, about whether they can start their own business and, at the same time, keep working for their visa sponsor.
Anyone is free to register a business in the U.S. He or she should get a separate tax ID number for the business which can do by clicking here. They should also probably talk to an accountant to decide which is the best business form for their business, such as incorporation, partnership, limited liability corporation, etc. For immigration purposes all business forms are fine, but there are certain tax and liability issues which may affect what type of business they want to create.
As an owner they can receive a dividend from or withdraw owner’s equity from their business without a new visa. They can hire others to work for their business to make a profit which they can then take out of the business.
However, they are not free to work at their own business without a new visa.
One possible visa would be an H-1B visa. I have written a blog on the risks of people sponsoring themselves for an H-1B visa so please click here to review my comments. If they already have a full-time H-1B visa from another company this would be tricky. The owner would have to say that he or she would work at his or her business on a part-time basis, something like 10 to 20 hours per week. There is no minimum number of hours for an H-1B visa holder.
The owner has to qualify for an H-1B visa and the main requirement is that their major in school must be related to their job it . For example, someone with an H-1B in the financial industry with a major in finance may have trouble getting an H-1B visa as a graphic designer.
Another possibility would be an E-2 (investor), but not everyone can get this type of visa. The owner’s home country would need a treaty with the U.S. permitting an investor visa. You can see if your country qualifies by clicking here, select your country from the drop down box at the top and go down the page to E-2 visa line. If it says “no treaty” you can’t get an E-2 visa.
If the owner can get an E-2 visa you would need to make a “substantial” investment in your business. While there is no legal definition of “substantial” my experience is that Immigration considers $75,000 a minimum investment. You would also need an office lease and a business plan among other things. E-2 visas are tricky and the potential owner should consult an experience attorney about whether he or she has a reasonable chance of qualifying for one.
Topics: Business work visas, H-1B, Work Visas | No Comments »
New visa stamp fee as of June 4, 2010
By Jim Nolan | June 8, 2010
The new fee schedule for non-immigrant visa at the U.S. Embassy and Consulate has become effective as of June 4, 2010. Please make sure you are paying the correct visa application fee before your interview. Please see here for details.
Topics: Practical Immigration Tips, Work Visas | No Comments »
Free telephone consultation on U.S. immigration law
By Jim Nolan | June 2, 2010
I would like to remind everyone about my next free telephone consultation for anyone who needs help with U.S. immigration laws.
The next consultation will be Thursday, June 10th 2010, from 10 a.m. to 4 p.m. (Eastern Standard Time). I will offer a monthly consultation the 2nd Thursday of each month.
Please click here to make an appointment.
Look forward to talking with you.
Topics: Free U.S. immigration law consultations | 6 Comments »
“Green Card” lottery results are out and some suggestions
By Jim Nolan | June 2, 2010
Some of our clients receive an announcement that they were selected as part of the GC lottery. To those who win congratulations! However, there are a few important things to keep in mind when getting the back. While it is important to return the packet quickly it is more important to do so with the right strategy. I would like to explain the important points by using a few examples.
I am using Japan as an example, but it is same for any country. Also, the dates are for 2010 and if you are reading this in later years the principles are the same, but you have to adjust the years.
Ms. Tanaka is in the U.S. on an H-1B visa and got a packet that she won the GC lottery. One of the questions on the forms asks if she wants to have her GC interview in Japan or the U.S. The U.S. seems much more convenient. How should she fill in the box?
I would suggest she write she will have her interview in Japan. She can easily change this later and file for her interview in the U.S. However, she cannot easily change it the other way – write interview in U.S. and then change to interview in Japan.
The most important point for GC lottery is for Ms. Tanaka to have her GC interview before September 30, 2011. If she doesn’t she will not get GC through the lottery. It will be like she didn’t win at all.
Usually, it is faster for Ms. Tanaka to have her GC interview in Japan than in the U.S. Howver, depending on her GC case number she maybe able to get GC interview in the U.S. in time.
Ms. Tanaka’s case number ends with the 85088. Is this important?
Yes, very important. Just getting the packet, by itself, doesn’t mean for sure you will get a GC through the lottery. You have to check what case number Immigration is working on and compare it to your case number to see if you are or will likely to be “current”.
For 2010 lottery Immigration is working on cases for Asia lower than16,400 for May. They will finish with the GC lottery for 2010 in September 2010. For 2010 it is very unlikely that a case with a number 85,088 would be “current” and have a GC interview. If your case isn’t “current” by the end of September your case is over.
There are different regions of the world with different priority dates. It changes every month and you can get the current date by clicking here.
Ms. Tanaka’s case is not included in the 2010 number, but will be included in the numbers for 2011. These are not available now and will be available starting September 2010.
However, since her number is so much higher than the current number for this year it is unlikely she will get her GC through the lottery and should not count on it.
Ms. Suzuki’s case number ends with the 5088? How about her chances?
Because her number is so low she has a very good chance to get a GC through the lottery next year or maybe even November or December 2010.
Ms. Suzuki’s is in the U.S. on an H-1B visa which will expire September 5, 2010. Does she have to extend her visa?
If she wants to stay and work in the U.S. she does. The GC lottery won’t start until October 1, 2010. Just getting the packet, by itself, doesn’t change her legal status. Until Ms. Suzuki has her interview, or possibly files for her GC interview in the U.S., she has to keep her H-1B visa.
What if Ms. Suzuki’s visa expires February 3, 2011? Does she have to extend her visa?
Maybe not. If she has either GC interview or files for a GC interview in the U.S. and her GC case is pending and she has work permission she would not have to file to extend her H-1B visa. However, this depends on how fast Immigration’s number moves every month.
On September 15, 2010 Immigration announces that on October 1, 2010, they will be working on cases for Asia number 4,239. Can Ms. Suzuki do anything now?
No, her case is not yet “current” because her number is higher than the case number Immigration is working on.
On October 15, 2010 Immigration announces that on November 1, 2010, they will be working on cases for Asia number 6,239. Can Ms. Suzuki do anything now?
Yes. She can prepare to file additional documents to have her GC interview in the U.S. She can’t file them with Immigration until November 1, 2010. Since she has 11 months to have her GC interview it is probably safe to file for GC interview in the U.S.
Ms. Suzuki has a finance in Japan who would like to come live with her in the U.S. as soon as possible. Can she get her GC, get married, and then sponsor her husband for a GC? Is this the best solution?
It is very important that Ms. Suzuki get married to her fiancé before her GC interview. Then they can have GC interview together or, in this example, Ms. Suzuki could have her GC interview in the U.S. and than her husband could have his GC interview in Japan separately a few months after hers.
If Ms. Suzuki marries her husband after getting her GC she could sponsor him, but it would take at least 5 years for him to get a GC and he would need his own work visa (H-1B, etc.) to be able to live with her in the U.S.
Mr. Yamamoto came to the U.S. 10 years ago on a tourist visa or visa waiver program and never left. He has been in illegal status for over the last 9 years. He got a packet announcing he won the GC lottery. He heard he can’t have his GC interview in the U.S. because he is in illegal status, but got an appointment notice to have his GC interview at the Embassy in Tokyo. Is it safe to go?
No. If Mr. Yamamoto leaves the U.S. he will be subject to the “10-year bar” because he has been in illegal status for more than 1 year. Winning the GC lottery does not change this. If Mr. Yamamoto goes to Japan his GC will be denied and he won’t be able to return to the U.S. for at least 10 years.
Ms. Inoue came to the U.S. 10 years ago on a F-1 student visa and never left. Her I-94 does not have a fixed expiration date, but says it expires in D/S (duration of status) She has been in illegal status for over the last 9 years. She got a packet announcing she won the GC lottery. Ms. Inoue read she can’t have her GC interview in the U.S. because she is in illegal status, but got an appointment notice to have her GC interview at the Embassy in Tokyo. Is it safe to go?
Probably not. Unlike Mr. Yamamoto, if Ms. Inoue leaves the U.S. she will not be subject to the “10-year bar” because, while she has been in illegal status for more than 1 year, her I-94 did not have a fixed expiration date. D/S is more confusing so Ms. Inoue is not subject to the 10 year bar.
However, by being in the U.S. illegally for many years and probably working, Ms. Inoue could and probably will be denied her GC at the interview in Tokyo if the Consular Officer realizes the situation. Winning the GC lottery does not change her illegal status but, because she is not subject to the 10 year bar, it leaves up to the mercy of the Consular Officer and we have not found them too merciful lately.
If Ms. Inoue goes to Japan and her GC is denied and she won’t be able to return to the U.S. for at least 5 years.
Hope this helps and good luck!
Topics: Green Card Lottery, Practical Immigration Tips | 4 Comments »
Fees for visa stamp will go up
By Jim Nolan | May 21, 2010
Based on the most recent information from Department of State, visa application fee at the U.S. Consulates will go up from $131 to $140 for B1/B2, F, M, J visas and other visa categories that can be applied directly at the U.S. Consulates. If you are applying for H, L, O, P, Q, R visas, you will need to pay $150. $350 is for K visa, and $390 for E visa. We don’t know when this becomes effective since this fee schedule has not become a final rule yet, but we suspect it will be after July 2010 at the earliest. We will announce in this blog as soon as we obtain more information. Meanwhile, please check if you are paying the correct visa application fee when you plan to have a visa interview at the US Consulate overseas.
For details of proposed fee schedule, please visit here.
Topics: Artist visa, Business work visas, Family, H-1B, Practical Immigration Tips, Work Visas | No Comments »
New problems for U.S. citizens who marry a foreign person
By Jim Nolan | May 17, 2010
A NY Times article on May 14, 2010, describes a new problem for U.S. citizens (USC’s) who marry a foreign person and try to get his or her “green card” in the U.S. (foreign spouse & for simplicity in this blog I will use “her” for foreign spouse) I would like to explain the article and mention some other points that the article didn’t cover, but are also important.
The problem we are discussing does not come up in every situation where a USC is marrying a foreign spouse. To save time I would like to list the situations it does not apply to and if you are in one of these situations you don’t have to worry about this problem:
- USC marries foreign spouse who is already in the U.S. on another visa, such as H-1B, L-1A, F-1, other types of visa
- USC marries foreign spouse who is already in the U.S. on J-1 visa and foreign spouse is not subject to the 2 year home residency requirement or, if they are subject to it, has already received a waiver.
- USC marries foreign spouse who is already in the U.S. on a tourist visa, not including the visa waiver program (VWP).
- “Green card” holder marries foreign spouse. This is a totally separate GC category and has other problems.
The problem comes up in the following situation: A USC wants to marry a foreign fiancé who is not living in the U.S. Often they meet on Internet sites. The USC wants the foreign fiancé come to the U.S. as soon as possible, to get married, then get her a “green card” (GC) so she can live legally in the U.S., work, and travel freely. There are two separate, but related problems. First, is how to get the foreign fiancé into the U.S. for the wedding and the second is how to get foreign spouse a GC.
Foreign fiancés who are citizens of countries that can use the Visa Waiver Program (VWP) can come to the U.S. for up to 90 days with no additional steps. Foreign fiancés who are citizens of other countries will first need to get a tourist visa (B-2) from the U.S. Embassy or Consulate in their home country before coming to the U.S. Getting this visa can be quite challenging, but is not part of this problem.
The first problem is that people aren’t supposed to come to the U.S. on the VWP with the intent to get married to a USC , stay and apply for a GC. There are other procedures they are supposed to use and I’ll discuss them later in this blog. If the Immigration Officer at the airport believes the foreign fiancé is coming to marry a USC and apply for a GC, they will not let her into the U.S. and put her on the next plane back to her home country.
However, it is OK for a foreign fiancé to come to the U.S. on the VWP to meet her fiancé, discuss their future wedding with the intent she will return to her home country get ready for the upcoming wedding.
Finally, it is also OK for the foreign fiancé to come to the U.S. on the VWP and then change her mind after being in the U.S., get married, and apply for a GC.
While perfectly legal, this “changing mind” situation is vague and, if the Immigration officer at the GC interview doesn’t believe it, can result in spouse’s GC being denied and her being forced to leave the U.S. for up to 5 years.
The most important factor to the Immigration officer at the GC interview to judge if there was a “change of mind” is how long after the foreign fiancé came into the U.S. did she and her USC husband marry. If they marry within 1 month of her entry Immigration presumes she lied when she came to the U.S. and will probably deny her GC. If they marry within 1 to 2 months the Immigration officer has no presumption and will review the situation carefully. If they marry after 2 months the officer will presume she changed her mind. Therefore, it is very important that the couple marry more than 2 months after the fiancé comes to the U.S.
However, the fiancé’s time in the U.S. on the VWP is only 3 months. If she doesn’t get married and file for her GC before her 3 months expires she will be in illegal status until she does file for her GC.
This leads to the problem in the NY Times article. In the past immigration lawyers didn’t worry if the foreign spouse’s 90 days expired before she filed for her GC. While Immigration always had the option to deny her GC because of her illegal status they very rarely did.
This has now changed. What the article in the NY times indicates is that Immigration is much more likely to deny a foreign spouse’s if they file for her GC after her 90 day stay expires. In the article, the couple did file before the 90 days expired, but forgot to include an important form in the filing. Forgetting the form meant that the case was not properly filed and didn’t stop the foreign spouse’s illegal status from starting. They didn’t find out about this mistake until too late but quickly re-filed on the suggestion of an Immigration officer. However, this was not enough to protect from the foreign spouse from being dragged out of his house in handcuffs and being held in Immigration jail for 10 days! This is why it is important to correctly file all the important documents before the 90 days expire and I have listed them here on my blog.
The key points of this information are:
- If the foreign fiancé comes to the U.S. on the VWP to discuss marriage with her USC fiancé she must intend to leave the U.S. and then get married later. If while in the U.S. she changes her mind and gets married in the U.S. it is extremely important that she get married to the USC and files the request for her GC within 2 to 3 months after she arrives, not any sooner or later. Filing too early looks like she lied when she came into the U.S. and delaying the filing even a few days after her 90 period expires leaves her at the mercy of the Immigration officer and, according the NY Times article, they are not showing much mercy anymore.
- If the U.S. citizen and his foreign fiancé plan to get married and it is only a question of when she should not come in on the VWP and they should take other routes I will explain below.
If the couple plans to marry they have two options to avoid the problems I discussed above.
- First, if they have met within last 2 years the USC can apply for a fiancé visa (K-1) . The problem is that it takes at least 6 to 9 months before the foreign fiancé can get the visa and come and marry. Once she gets the visa at the U.S. Embassy in her home country and arrives in the U.S. she has to get married within 90 days of arrival and then file for a GC interview in the U.S. If the couple has never met or not met within the last 2 years the foreign fiancé can’t get a K-1 visa. Skype video conferencing doesn’t count!
- Second, the USC fiancé can go to his foreign fiancé home country and get married there. He would then return by himself and apply for a K-3 visa for his wife . Once his foreign spouse gets her K-3 visa stamp at the U.S. Embassy in her home country and arrives in the U.S. her husband has to file for a GC interview in the U.S. The problem is that it takes at least 9 to 12 months before the foreign spouse can get the visa and come to the U.S. to live with her husband.
Please understand at the GC interview there are two questions which will come up and they are not involved in the problems I discussed above. The two issues are:
- Did the USC and the foreign spouse marry for “love” or for the purpose of getting the foreign spouse a GC; and
- Will the foreign spouse be on welfare.
You should discuss how to prepare for these problems with an immigration attorney if the USC has not know the foreign spouse very long before getting married or if his income for the last year is below the poverty line of about $20,000 per year.
I am sorry for the trouble, but I hope this avoids the fate of the poor person in the Times article!
Topics: Family, Practical Immigration Tips | 4 Comments »
Free telephone consultation on U.S. immigration law
By Jim Nolan | May 5, 2010
I would like to remind everyone about my next free telephone consultation for anyone who needs help with U.S. immigration laws.
The next consultation will be Thursday, May 13th 2010, from 10 a.m. to 4 p.m. (Eastern Standard Time). I will offer a monthly consultation the 2nd Thursday of each month.
Please click here to make an appointment.
Look forward to talking with you.
Topics: Free U.S. immigration law consultations | 1 Comment »
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