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With a pending Adjustment of Status application, is it better to travel on my H1B visa or with Advance Parole?

December 16, 2014

There are a number of concerns in play that must be considered when answering this question. IF you are still a full-time employee in good standing at the H1B employer, and you have a valid H1B visa stamp, or can apply for a new one on a short trip abroad without a harrowing, uncertain & lengthy procedure, then it is preferable to use the H1B for travel. The first reason for this is that under the H-1B, you will be readmitted in valid nonimmigrant visa status, which keeps you in status regardless of the I-485 application. The second reason is that under the regulations, you may travel on your valid H1B visa as soon as the I-485 receipt notice arrives, instead of having to wait months for the approval of ancillary benefits. Also, this will usually avoid having to go to Secondary Inspection at the airport upon your return. However, some H1B workers are subjected to extraordinary levels of scrutiny and indeed bias at some airports, particularly information technology professionals working in a consultancy, so the risks of traveling on the H visa should be discussed with counsel before you go.  While travel on Advance Parole is possible as soon as you receive the combined EAD/Advance Parole card from USCIS, and using it for travel is necessary when you are no longer working for the H1B employer, know that whenever you present an Advance Parole travel document to US Customs & Border Protection, you will always have to go through Secondary Inspection. In Secondary, the Customs & Border Protection inspectors may start with a presumption that you are inadmissible because of the Advance Parole, and work backwards from there – which means entry coming back to the US will almost always take longer with an Advance Parole than with the H visa.  Once you are admitted as a Parolee, A) you’re no longer in valid H1B nonimmigrant work visa status, B) in order to just stay on payroll at your employer, you will have to present the EAD card and execute a new I-9 form, and C) you will no longer have access to H1B portability, should you wish to change jobs abruptly.  



Executive Action Alert

November 25, 2014

The first important thing to know about the immigration relief announced by President Obama on November 20, 2014, is that it's not an "amnesty." Unlike President Reagan's amnesty in 1986, the recent Executive Action does not create a new basis for residence that will legalize several million people who currently have no status, it only offers new temporary forms of relief from deportation or removal, and temporary work authorization, for limited classes of people. The second thing to know is, no one can apply right away.

None of the immigration initiatives announced as a part of the President's Executive Action are in place yet, nor will any of them be in place before the end of calendar 2014. Don't pay anyone to file an application for you for one of the new forms of relief included in that announcement until USCIS publishes new forms, and announces the new application procedures and their effective dates. The agency needs time to update, revise and publish new forms, establish rules for the supporting documentation, set fees and filing procedures for the new application types, and allocate and train staff to review those new types of applications, before those processes go live.

Some of the immigration initiatives mentioned, such as measures to ease employment-based immigrant quota backlogs and enhance "portability" for foreign workers, do not even have anticipated timelines yet. The most urgent benefits for some of those currently without status do have projected timelines, but they will not be in place until the spring of 2015.

Specifically, USCIS expects an application process for the expanded version of DACA, Deferred Action for Childhood Arrivals, to be in place about 90 days from the announcement, i.e. after February 19, 2015. This new expanded DACA benefit covers those who arrived in the United States before age 16, and have resided continuously in the US since January 1, 2010.

USCIS expects to have an application process for the new DAPA benefit, Deferred Action for Parental Accountability, in place about 180 days from the announcement, i.e. after May 19, 2015. The DAPA benefit covers parents of a US citizen or permanent resident child born on or before November 20, 2014, and have resided continuously in the US since January 1, 2010.

In the meantime, people who may qualify for immigration relief who are awaiting the publication of specific filing procedures may want to consult with a pro bono or low-cost legal service provider, a qualified immigration attorney, or an accredited BIA representative, to ask basic questions about eligibility, and about gathering documentary evidence that will be needed to prove identity, qualifying relationships, and proof of continuous residence in the United States.



H-4 Work Authorization Proposed

June 2, 2014

On May 12, 2014, the U.S. Department of Homeland Security (DHS) published a proposed rule in the Federal Register that would make certain H-4 dependent spouses eligible to apply for employment authorization, if the H1B principal is the beneficiary of an approved I-140 petition, or if the H1B principal has had their status extended beyond the 6-year limit pursuant to AC21, the American Competitiveness in the Twenty First Century Act.

The proposed H-4 work authorization rule has no effective date as of this time, and the proposal is still subject to a 60-day public comment period, ending July 11, 2014. Once the comment period ends, DHS will take however much time they need to review and consider any comments submitted before issuing a final rule. Only the final rule will contain the date of implementation, and publication of a final rule is still some months away.

For now, all H-4 spouses continue to be ineligible for employment authorization, so look for more news on this front.

Once there is a final rule and after it has been implemented, if the rule does not change substantially, then to obtain the Employment Authorization Document under the terms of the proposed rule, H-4 spouses will need to submit Form I-765 with evidence of the H-1B principal worker's currently valid status, and qualifying approved I-140 petition and/or approval of post sixth-year H-1B extension. If the I-765 application is approved, the H-4 holder would receive an EAD valid for up to two years. Processing of the I-765 application can take up to 120 days, so even after the new rule is approved and implemented, it will be a few more months before an H-4 spouse gets authorization to work in the United States. With an EAD card, the H-4 will be able to obtain a Social Security Number, and it is a List A document valid as proof of identity and work authorization for purposes of Form I-9, Employment Eligibility Verification.

The Administration hopes that making H-4 spouses of longtime H-1B workers eligible for EAD cards will help US employers retain highly skilled H-1B workers, in the face of very long waits for lawful permanent residence. It may also encourage entry into the United States of those H-4 eligible spouses who have chosen to remain abroad and separated from their H-1B spouses in order to pursue their own careers outside of the United States, because they would not be eligible to work if they came here. We can only hope for swift issuance of a final rule with an implementation date in the near future.

Contact us if you would like more information about the H-4 Work Authorization proposal.



How Long Can I Stay, or, Why Doesn't My I-94 Match My Visa?

April 10, 2014

A wide variety of visitors and business travelers to the United States are often stunned to learn that the end date of the period of lawful admission granted upon arrival at a Port of Entry is not the same as the end date of the validity period shown on the face of the visa that was presented for admission. In short a visa is a machine-readable secure stamp issued into the passport at a US embassy or Consulate outside the United States, only valid for entry into the US from abroad. An I-94 is a paper or electronic record of lawful admission created for the traveler by an Inspections Officer of US Customs & Border Protection, which determines what temporary visa status the traveler holds once inside the US, and how long the traveler is allowed to remain in the US. Learn more about what the differences are between a visa and an I-94.

This blog post offers some examples of the many different situations in which the visa (entry document) and the I-94 (status document) do not have the same end date, and explaining why.

Admission as a Visitor with a B1-B2 Visa

A visitor visa may be issued to a national of any country not authorized to participate in the Visa Waiver Program. Although the visa is valid typically for either ten years or five years, the visitor will be admitted for a period of authorized stay that is no more than 6 months, and may be less. The I-94 reflects the purpose for which the visitor was admitted- Even if a traveler has a valid B1-B2 visa, he or she still has the burden of proving upon each admission that there is a specific lawful, temporary, and finite purpose for that visit, and a permanent residence abroad to which the traveler will return. Even past compliance with the terms of visitor visa status during previous stays is no guarantee that you will be readmitted as a visitor on the next trip.

Reciprocity Schedules

Certain countries have limits on the validity of some visa types for Americans, so in return the US correspondingly limits the validity of similar visas for nationals of those countries, even where the validity of the underlying approved work visa petition by a US employer may be longer. For instance, nationals of most countries are eligible to receive H-1B work visas valid for the full three-year validity of the underlying petition, but nationals of China and certain other countries are not: the reciprocity schedule limits nationals of China to an H-1B visa stamp valid for a maximum of one year and multiple entries, or an O-1 visa valid for only three months and one entry. Even O-1 "aliens of extraordinary ability" can be unpleasantly surprised by reciprocity issues- the history of this visa as originally conceived for performing artists often impacts business O-1 travelers from China, Brazil and others.

Passport Expiration

In most cases, a person traveling on a work visa will be admitted for the validity period of the underlying approved petition, or for the standard two-year period on an E visa, but CBP Inspections Officers have some discretion, and may choose to admit the traveler only until the date of passport expiration. Once a new passport has been obtained, the traveler must present both the expired passport containing the valid visa stamp, and the new passport: this leads to admission with the entry "VIOPP" stamped in the valid passport (meaning "visa in other passport").

Certain Visa Types:

For some types of work visas that are not or need not be based on an underlying petition approved by USCIS, standard admission periods are set by regulation. Holders of E-1 Treaty Trader visas, E-2 Treaty Investor visas, and E-3 Australian treaty professionals are admitted for two years from date of admission. H-1B1 treaty nationals of Chile and Singapore are admitted for a maximum of 18 months. Valid maintenance of status issues may arise for E-3 and H-1B1 workers have a still-valid I -94 admission record, but the approved Labor Condition Application has expired. Another common problem arises with dependents of an E worker who enter the US and do not travel frequently with the principal visa holder, where the dependents have I-94s valid for two years from the date of their original entry, but forget to travel or apply to extend status, and fall out of status because they mistakenly believe their stay is automatically extended whenever the principal worker travels.

F &J Admission for D/S: Students, scholars, and other classes of exchange visitors are not admitted until a specific date, but for duration of status, annotated as "D/S". For these travelers, their status documents once admitted to the United States include both the I-94 admission record, and the most current Form I-20 issued by the school or a Form DS-2019 issued by the exchange program sponsor.

These are some of the many instances in which the end date of an authorized period of admission will be different from the ending validity date on the face of the visa stamp, but this is not an exhaustive list. If you want to know more about your specific situation, consult with an attorney, and show the documents about which you have questions


TAGS : I-94


Things to Know Before You Visit the United States

March 20, 2014

All visitors to the United States, whether traveling with a B1-B2 visitor visa, or under the Visa Waiver Program, must be seeking admission for a trip whose purpose is lawful, temporary and finite. Visitors always have the burden of proving that they will return home, as evidenced by sufficient family, property, business or financial ties to the home country to indicate a strong likelihood of prompt return.

Reasons for denial of an application for a B1-B2 visitor visa at a US Embassy abroad, or refusal of admission as a visitor at a US Port of Entry (airport or land border) may include any indicators that the traveler plans to seek employment while in the US, or plans to enroll in school, or plans to pursue permanent residence – an engagement ring on the hand or an original birth certificate in the luggage are red flags for intent to immigrate. A round-trip airline ticket by itself is often not sufficient to prove intent to return to the home country, and could be undermined by a visitor taking inconsistent actions before a planned trip, such as quitting a steady job, or selling a home or a vehicle, as these indicate a lack of intent to return soon.

1.) Do I need to apply for a visa?

If you are a citizen of one of the 37 countries currently participating in the Visa Waiver Program, which are listed by the US Department of State, and you plan to visit the United States for 90 days or less, then in most cases you do not need to apply for a machine-readable B1-B2 visitor visa stamp at a US Embassy.
 
If you are from a Visa Waiver country but you need to stay longer than 90 days, or if you are not a citizen of a Visa Waiver country, or if you have ever previously overstayed a period of lawful admission to the US, even by one day, then you will need to apply for a visa to come to the United States.
 
When traveling to the United States without a visa under the Visa Waiver Program, you will need to register for ESTA, the Electronic System for Travel Authorization before you can board a US-bound international flight.
 

2.) What if I have been denied a visa before, or denied admission under the VWP?

Then you should consult with counsel for case-specific advice before you spend time, money and effort on a new visa application.
 

3.) Why didn’t the interviewing officer look at my documents?

Some countries have more prevalent fraud than others, and in places where the US Embassy receives a large volume of visa applications, they may often see fabricated or altered documents, which can make the consular officers more skeptical of all documents, even those that, are legitimate. Also, they may look for demeanor and behavioral cues in addition to documents.

4.) Can I appeal from a denial of a visa?

No, due to a policy of consular non-reviewability, a visa denial cannot be appealed. You may be able to re-apply, but you cannot appeal the consular officer’s decision to deny your application for a visa.

If you have any questions about B1-B2 visitor visas, or the Visa Waiver Program, contact Karin Wolman.





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Karin Wolman is admitted to the bar in the State of New York.
Her practice is limited to U.S. Immigration & Nationality law.

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This website is for general information purposes only. This information is not legal advice, and is not intended to serve in place of legal advice. You should consult with an attorney about your specific question or situation. Hiring an attorney is an important personal and professional decision, and should not be undertaken lightly.

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