First, no one can file for a new H-1B visa until March 31, 2012, and the date their new visa will start will be October 1, 2012.  The only exceptions are those companies or organizations which are “cap exempted”, but, since there are not many of them, I’ll concentrate on the vast majority of people sponsored by regular employers and explain what companies are “exempt” in a future blog.

Second, many people ask if they will be able to continue to work for their sponsors using their OPT card until the new H-1B visa starts on October 1^st?  This is tricky and depends on the time the OPT card expires. 

The possibilities are:

• If the person’s OPT card expires after October 1, 2012, there is no problem and he can continue to work for his sponsor until then and automatically start on his H-1B visa;
• If the person’s OPT card expires after April 1, 2012, and the company successfully files for an H-1B visa before it expires he will be able to continue to work until October 1^st and automatically start on his H-1B visa;
• If the person’s OPT card expires between February 1,  and April 1, 2012 and the company successfully files for an H-1B visa during his 60 day “grace period” he will not be able to continue to work until October 1^st.  He will have to stop working the day his OPT card expires and but will not have to leave the U.S. until his H-1B visa case is decided.  If his visa is approved he can stay in the U.S., but not work until October 1st.  On October 1st he will be able to automatically start working on your H-1B visa without leaving the U.S.
• If the person’s OPT card expires before February 1, 2012  he will not be able to continue to work until October 1^st  AND will have to leave the U.S. 60 days after the OPT card expires.    It doesn’t matter when the company successfully files for an H-1B visa.  If his case is approved he will have to wait in Japan, get an H-1B visa stamp, and return around October 1, 2012, and start working for his sponsor then.

If  the person has a major in science, technology, engineering, or math there may be a way to extend the time on his OPT card so he  can continue to work.  If a person has any of these majors please discuss how to do this with your employer.

Third, can the person travel outside the U.S.  before October 1^st?  This is complicated and there are a couple of possibilities.

The basic rule is that as long as the person is waiting for a decision on his H-1B visa case he cannot travel outside the U.S.

Once the H-1B visa is approved then one of the following options applies to your situation:

1.  If the person’s F-1 visa stamp expires before April 1, 2012, he cannot travel outside the U.S. until at least October 1^st.  
2. If the person’s F-1 visa stamp expires after October 1, 2012, and his OPT card expires after October 1, 2012, he can travel as long as he returns before October 1^st on his student visa and automatically start working on your H-1B visa on October 1^st.  He will not have to file anything with Immigration to start working on your H-1B status.  
3. If the person’s F-1 visa stamp expires after October 1, 2012, and his OPT card expires before October 1, 2012 up until recently I would have said that he can travel as long as he returns before his OPT card expires and automatically start working on his H-1B visa on October 1^st.  You will not have to file anything with Immigration to start working on your H-1B status.  

   However, in April 2011 Immigration published some answers to questions which make this travel risky.  Immigration appears to mean that if he files for an H-1B using the “gap cap” method then the person’s H-1B case starts the same day, even though his work card expires before October 1, 2012). 

   Under this way of thinking once he files for an H-1B he can no longer travel until October 1st and cannot return without first getting an H-1B visa stamp. 

   Unfortunately, we have no more information about this memo.

   Therefore, it would be safer not to travel after the person files for the visa until October 1, 2012, or not to file for the H-1B visa until he has completed his travels and returned to the U.S. on his OPT card.

   If he does not return before the day his OPT expires he will not be able to return until October 1st and after getting a new H-1B visa stamp.  

4. If the person’s F-1 visa stamp expires before October 1, 2012, and his OPT card expires before or after the visa stamp, but before October 1, 2012 he can travel as long as he returns before his visa stamp and OPT expires.  As long as he does he can return on his student visa and automatically start working on his H-1B visa on October 1^st.  He will not have to file anything with Immigration to start working on your H-1B status.

However, if he does not return before his OPT expires he will not be able to return until October 1st and after getting a new H-1B visa stamp.

However, the April 2011 memo casts doubt on travel if your or his OPT card expires before October 1st.

Tuesday, October 4, 2011, at noon, Eastern Daylight Time (EDT) (GMT-4), and conclude on Saturday, November 5, 2011, at noon, Eastern Daylight Time (EDT) (GMT-4

 Anytime during this period people who are interested in applying should review the instructions and the link to apply at http://travel.state.gov/pdf/DV_2013_instructions.pdf.   The link won’t work before noon on October 4th or after noon on November 5th.   You have to use the Web site and no paper applications are acceptable.

 I strongly suggest you don’t wait until the last week to apply because other years the Web servers overloaded and crashed leaving many people unable to apply. 

 There is no application fee to apply and I don’t think you need to hire anyone to help because the application process is pretty simple.  If you win the lottery then there is a filing fee and you may want to discuss your options with an immigration attorney.

 Good luck!

Avoid Misleading Online Businesses and Fees

In recent weeks, USCIS has received a large number of applications prepared by an online business that charges users to complete their USCIS forms. In most cases, the charge for preparing an application is the same as the USCIS filing fee. When applicants pay these businesses online using an electronic check, the applicant is only paying for the service provided to prepare the application, and not the actual USCIS filing fee. As a result, applicants are attaching a copy of a cashed electronic check when mailing their applications to USCIS. Because the applicant has not paid the USCIS filing fee, USCIS cannot process these applications and must return them to the applicant.

USCIS would like to urge applicants to carefully read the user agreements provided by non-government websites. This information should help the applicant determine what services he or she is paying the online service provider for and minimize the possibility that the application will be rejected for the reasons noted above.

USCIS reminds applicants to avoid:

• Dot.com websites that identify themselves as being an official government website (Remember: Official government websites always include “.gov”, not “.com” in the web address)

 • Websites that charge applicants for blank USCIS forms

I want to share these with everyone so they can avoid the problems.

Avoidable Disaster One

Mr. Smith had an H-1B visa which is valid until October 2012 (about 1.25 years from now). He quit his job and knew he would have to leave the U.S. because his immigration status depended on his job unless he did something quickly. He had the right idea.
However, what he did about it lead to a disaster. He and his wife went to Canada and applied for a B2 tourist visa at the Embassy in Ottawa. Because neither of them had a job in their home country (not Canada), no apartment waiting for them, and no other strong ties to their home country, the officer at the Embassy denied their requests for B2 visas.

Now they have two problems. The lesser problem is they can no longer stay in the U.S. (which was the same as before). The greater problem is they probably can’t get back into the U.S. to pack their bags and close out their apartment. They are stuck in Canada because once their request a visa was denied they can’t use the Visa Waiver Program (VWP) to come back without a visa for at least 5 years. The only thing they can do is fly directly home from Canada.

What Mr. Smith could have done is apply to change his and his wife’s visa status in the U.S. by mail and not leave the U.S. Once he mailed in their requests to change their status both of them could legally wait in the U.S. for a decision which usually takes 2 to 3 months. If their request was approved they would probably get 6 months and, if it was denied, they would have 10 days to leave the U.S. In either situation they would have gotten at least 2 to 3 months time to legally stay in the U.S.

Avoidable Disaster Two

Ms. Suzuki came into the U.S. using the VWP on March 15th and got 90 days to stay until June 15th. Around June 1st she realized she wanted to stay longer.

She knew she couldn’t extend her VWP in the U.S. so drove to Canada for a day and drove back. The Immigration officer at the Canadian border looked at her passport and I-94 and welcomed her back to the U.S. The officer, however, did not give her a new I-94.

On July 22nd Ms. Suzuki called me because she found a job and the employer would sponsor her for an H-1B visa.

The problem is that since she did not get a new I-94 at the Canadian border she did not get a new 90 days and her legal status still expired on June 15th. This is the usual procedure at both the Canadian and Mexican border.

It would have been possible for Ms. Suzuki to get a new I-94 at the Canadian border, but she would have to specifically ask for it and this would cause the Immigration officer to review her situation the same as at an airport and she may not have been let back to the U.S.

While she still may get an H-1B visa she will have to leave immediately while the H-1B case is pending and when she applies for her visa stamp in Japan she will have to disclose that she violated her immigration status on her last trip to the U.S.

While not always fatal this type of disclosure makes it much more difficult to get a visa in the future.

If either of the people had called our free consultation or even used a paid consultation they would have saved themselves serious troubles.

Please be careful and smart!

“The Embassy wishes to inform all visa applicants that our first priority at this time is assisting U.S. citizens who may be injured or missing. For non-immigrant visa applicants who have appointments this week, please reschedule your appointment for a later date. We are able to assist in emergency cases under very limited circumstances.”

You can re-schedule you appointment by going to this Web site: https://evisaforms.state.gov/make_change_main.asp

People who have come to the U.S. on under the VWP (Visa Waiver Program) are the most at risk because if their 90 days expires while they are in the U.S. they have violated their immigration status and this can cause trouble in the future.

If they take the appropriate steps they can avoid this trouble.

The easiest way, from an immigration point of view, is to leave the U.S. before the 90 days expires, even if they go somewhere other than Japan.

However, if this is impossible, The US Department of Homeland Security announced that Japanese and other foreign travelers stranded in the United States due to the earthquakes and tsunami devastation in Japan, may be permitted up to an additional 30 days to depart. Travelers currently in the US under the VWP (Visa Waiver Program) or holding a nonimmigrant visa may request such relief by visiting a local US Citizenship & Immigration Services office.

People with a nonimmigrant visa who did not use the VWP can also file for an extension by mail by mailing in the form I-539 (http://www.uscis.gov/files/form/i-539.pdf) and other documents, including a $290 filing fee. People on the VWP cannot do an extension by mail and must go to the local Immigration office for the extra 30 days.

To request the 30 days extension at the local Immigration it is much better to make an appointment than just going to the office. Making the appointment is a very simple process. Please go to the following Web site: http://infopass.uscis.gov/ and do the following:

• Click in upper left hand for English (unless you would prefer one of the other languages listed there)
• Click “Make your appointment with InfoPass
• Put in your zip code and hit continue
• If there is more than one office please select the most convenient
• Select “You need information or other service”
• Hit continue
• File in your information and get an appointment date

Go to your interview with your I-94, the Service Request ID Number related to your inquiry to the appointment which you should have received when made your appointment on-line, and your passport and ask for a stamp to extend your legal status.

Good luck.

Technorati Tags: Visa Waiver Program, VWP

The next consultation will be Thursday, January 13th 2011, 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, http://bit.ly/9zD6SE, to make an appointment.

Look forward to talking with you.

Technorati Tags: Free U.S. immigration law consultations

A woman, Ms. X, called and wanted to live in the U.S. with her two children. The older child just had his 21st birthday and the other was 18 years old. Ms. X was engaged to a U.S. citizen living in the U.S., but they have not yet fixed a date for their wedding.

Ms. X’s main concern is how can she and her children live together with her fiancée as soon as possible until their wedding and afterwards.

The fastest way for Ms. X to move to the U.S. would not be through marriage, but getting her own visa. The most common type would be a working visa, such as H-1B, L-1A, or E-2 visas. All of these require that she find or create a business to sponsor her visa so she could come and live in the U.S. It has nothing to do with her U.S. fiancée. I have discussed the requirements of these visas in other blogs and won’t do that here because I want to focus on Ms. X’s children and how they can live with her.

Assuming Ms. X gets an H-1B visa her 18 year old child can get an H-4 visa as her minor child (this is true with all other visas, but they will have different names). However, her 21 year cannot because Immigration does not consider him a minor children after his 21st birthday. Therefore, her older child cannot get a visa to come live with his mother as her child and her younger one can only get a visa for 3 years (21 – 18, her current age) and then will have to change.
The only thing the older child can do is get his own visa independent of his mother. He could get an F-1 student visa if he can get accepted into a U.S. college. If he can get a job he could get his own work visa being sponsored by his employer. What he can’t do is be sponsored for a visa by his mother.

When the younger child turns 21 years old she will have the same problem and she will either have to leave the U.S. or get her own visa.

After getting over her surprise, Ms. X asked what if she pushed up her wedding with her fiancée? Would that help? Sadly, the answer is no.

Ms. X’s husband could sponsor her for a “green card” (GC) as his new wife. However, he could only sponsor her children for a GC case if he filed for her and their GC’s before the children’s 18th birthday. This is one of the few cases where the children lose benefits before they turn 21 years old.

Once Ms. X gets a GC she can sponsor her children for a GC, but there is a long wait (at least 3 to 4 years) for GC’s for people in this situation. While their GC cases are waiting they cannot live in the U.S. without a separate visa.
It wouldn’t even help if the U.S. citizen adopted the two children. He can only sponsor them for GC if he adopts them and files for their GC before their 16th, not 18th, birthday.

After hearing all this Ms. X was very sad and I haven’t heard from her again. I hope she and her financee can work this out and build their live together in the U.S.

If you have questions about this I would suggest you register for our next free 15 minute telephone consultation. We have one every 2nd Tuesday of the month. If you would like to do that please click here.

Technorati Tags: Business work visas, Free U.S. immigration law consultations, H-1B visa, Spouse visa, Student visa, Work Visas, “Green Cards”

The next consultation will be Thursday, December 9th 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.

The most common way to come to the U.S. is to be accepted by a U.S. school, get an I-20 from the school, and apply to the Embassy or Consulate for a student visa.  Getting a high school student a visa is more complicated and I’ll discuss that in a different blog. 

The Embassy explains the procedure at http://tokyo.usembassy.gov/e/visa/tvisa-niv-fm.html and it would be basically the same for other countries.

The problems we see are outside the normal system and are as follows:

• The student wants to visit some schools before applying  to them, and  wants to start school after being  admitted and doesn’t want to go home right after acceptance

Many potential students don’t know what school they want to attend and, in this situation, the normal process is more difficult. 

Of course, the potential students can come either on the visa waiver program (VWP) (or B2 tourist visa if  he or she from a country not included in the VWP) and then return home, apply in the normal way, and return with a new student visa stamp and start school.

 But, many don’t want to spend the money to fly home and wait. 

 There is another option. 

 The potential student can apply for a B-2 tourist visa and come to tour potential schools.  Once accepted the student can file to change his or her status in the U.S. from tourist to student and can start school as soon as the requested change is approved by Immigration.

 The next time the student leaves the U.S. they must return home and apply for a student visa stamp in the normal way, but they don’t have to do this before starting school.

 There are a few important points about this option:

 The student  must make two trips to the Embassy, first to apply for the B-2 visa before coming to the U.S. and second, when he or she returns the first time after becoming a student.  Some people don’t want to bother going twice.

• The student needs to tell the people at the Embassy his or her plans.  If the Embassy staff approves the student’s plan they they will put some special notes on the student visa stamp.  These notes can be important later.
• After the student gets accepted into the school he or she has to file a form (I-539) with Immigration in the U.S. by mail and wait until Immigration approves the request.  This approval can take up to two to three months and there is no way to speed it up.   The student can’t start school until he or she gets approved, thought  they can wait in the U.S. for the decision.  The student can’t work while waiting. 
• This won’t work if the student comes to the U.S. on the VWP.  The student has to get a B-2 visa from the Embassy before coming to the U.S.

 I want to study, but the best place  I want to go can’t accept foreign students.  What can I do?

Generally, a potential  student can’t go to a school if it cannot accept foreign students (this means give an I-20).

 There is one exception.  If the traveler can successfully explain to the people at the U.S. Embassy that he or she is coming to the United States primarily for tourism but will also incidentally enroll in a short course of study during their visit he or she can get a B-2 visa and attend the school.

 The difficult is that there is no definitions of what “ primarily”, “incidentally”, or “short” mean so it is up to the judgment of the Embassy staff. 

 Two possible examples I have heard of that might work are:

•  A visually-impaired student wanted to go for 9 months to a leading institute founded to help visually impaired people;
• Someone interested in French cooking as a hobby wishes to take a 3 months “restaurant” tour of the U.S. and attend a famous French cooking school to get some tips.

 Neither the Institute nor the French school are authorized to accept foreign students so the normal option won’t work.

The potential traveler could apply to the Embassy for a B-2 visa explaining the purpose of the trip is primarily as a tourist and that they will spend a short time studying as a part of the trip and that study  is not the main  purpose of the trip.

If the Embassy accepts their idea they will give them a B-2 visa stamp with another special note on their stamp and the traveler can come to the U.S. and attend the classes. 

This will option will not work if the traveler comes on the VWP. 

We hope this helps you plan to come study in the U.S.

Technorati Tags: Student visa