H1B Approved but Change of Status Denied

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I think my lawyer screwed me up. He told me that my H1B was approved but in the I-797C, it says that my change of status was denied! Can I appeal this?

Yes, this may be something that should be appealed but without more information about you case, I don’t see any evidence that your lawyer made a mistake. The requirements to obtain an H1B approval and a change of status are completely separate. In order to show that you qualify to change your status, you must show that you were in a valid nonimmigrant status at the time you filed your H1B petition AND if your H1B start date was October 1, that your status was valid through October 1 or that you qualified for an exception such as the F1 cap gap rule.

Marriage Green Card and School

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I am currently on a F1 visa and am going to school at University of Indiana. My boyfriend and I are getting married and I want to apply for green card. Do I keep my F1 visa or can continue without?

Most schools will allow admission with evidence that you have filed your Form I-485. It is a school issue and the vast majority of schools only ask for evidence that you are in legal status and some don’t even ask for that. The USCIS does not prohibit attending school while your marriage green card is pending.

E2 Visa Investment Requirements

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I have $100,000 to $200,000 to invest in a new company. Is this enough to get E2 visa?

Immigration law does not identify a specific minimum required for an E2 investment visa. However, in our experience an investment of less than $50,000 will not be approved and an investment less than $100,000 may be difficult depending on the USCIS Service Center or US Consulate where the E2 application is filed.

In most cases $100,000 to $200,000 will be considered sufficient but you must be able to show that the amount is both “substantial” and not “marginal.” A substantial investment is an investment that is:

  • Substantial in the proportional sense, i.e. , in relationship to the total cost of either purchasing an established enterprise or creating the type of enterprise under consideration;
  • Sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise; and
  • Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise.

Whether an amount of capital is substantial in the proportionality sense is understood in terms of an inverted sliding scale; i.e. , the lower the total cost of the enterprise, the higher, proportionately, the investment must be to meet these criteria.

A marginal enterprise is an enterprise that does not have the present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his or her family. An enterprise that does not have the capacity to generate such income but that has a present or future capacity to make a significant economic contribution is not a marginal enterprise. The projected future capacity should generally be realizable within five years from the date the alien commences normal business activity of the enterprise.

Voluntary Departure vs. Removal

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My husband just received a Notice to Appear (NTA) and is being deported. I heard that he can get voluntary departure and come right back in. Is that true?

It is possible. However, if your husband is removed, he will be barred from entering the US for ten years unless he can obtain a waiver. If he is qualified to obtain voluntary departure there will be no bar for being removed. However, he may still be subject to other grounds of inadmissibility. For example, he may be subject to the 3/10 year bar if he accrued more than 180/365 days of unlawful presence. He may also be inadmissible due to previous criminal violations or for fraud/misrepresentation if he fraudulently entered the country.

Voluntary departure will not cure any grounds of inadmissibility other than the 10 year removal bar. It is very important that he be well represented in immigration court if you want him to be able to return or remain in the US.

H1B Visa and H4 Visa Extension

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Is my H4 extended automatically when my husband extended his H1B? I’m worried because he got a new I-94 card when he extended his H1B but I haven’t gotten anything.

An H4 visa status application may be filed concurrently with an H1B status application but they remain separate applications. If you did not file your own application then you will not receive a new I-94 card and are out of status and are accruing unlawful presence from the time your I-94 card expired. In some cases, USCIS will accept an untimely filed H4 visa status extension application but it can be difficult. We have been able to obtain approvals in these types of cases and some cases where the applicant was out of status for two years. However, it is important to have a good immigration history which means no previous immigration violations as well as no criminal history and generally have a record of good moral character.

Denied Entry to USA

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Denied Entry to USA

Reasons for Denied Entry to USA

Most foreign nationals who are denied entry to the US are those attempting to enter as tourists with B1/B2 visas or through the VWP Visa Waiver Program.  In order for tourists to gain entry to the US, they must establish to CBP, the Immigration Officer, that their trip is for tourist purposes and that he or she intends to return home before their authorized period of stay which is typically 6 months for B1/B2 visa holders or 90 days for VWP entrants.

212(a)(7)(A) Documentation Requirement for Immigrants

If CBP believes that the foreign national, who requests a temporary entry, but believes that the foreign national truly intends to stay permanently, he may deny their entry pursuant to 212a7A and require them to obtain an immigrant visa before attempting reentry.

212(a)(6)(C)(i) Misrepresentation

If CBP believes that the foreign national made a material misrepresentation in order to attempt entry, such as stating that the applicant intends to visit Disney when they actually intend to work for a specific company, he may deny their entry pursuant to 212a6Ci.

212(a)(9)(B) Unlawful Presence

If CBP believes that the foreign national was previously in the United States illegally for a period of more than 180 days, he may deny their entry pursuant to 212a9B.

A complete list of reasons why a foreign national can be denied entry can be found here. INA 212 Inadmissibility.

What Happens When Denied Entry to USA

If you are denied entry to the US, CBP will normally give you an opportunity to withdraw your application for admission.  If you withdraw your application for admission or if CBP orders your removal, you will be placed order oath and CBP will complete a record of incident.  If this occurs, be sure to obtain a copy of this record.  CBP will then place you on the next available flight with the airline to your home country (or car or boat depending on your method of entry).

Options to Address Denied Entry

After you have been denied entry, you will have three options to attempt a reentry.  First, if you believe that CBP had no valid basis to refuse your entry (e.g. They accused you of misrepresentation but you made none) then you can challenge the denial of entry with CBP or provide evidence that the denial was made incorrectly.  Second, if CBP denied your entry because they want you to enter as an immigrant rather than a nonimmigrant, you can obtain an immigrant visa.  Third, if your entry was denied and the ground of inadmissibility does apply (e.g. you previously overstayed more than 180 days) then you can apply for a waiver of inadmissibility and then reenter.

The DREAM is on! Obama to grant deferred action and work authorization!

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On June 15, 2012 the Department of Homeland Security formally announced that it will offer deferred action to “DREAMers.” This means that for millions of undocumented youths who entered the United States without inspection (no visas) as children can now obtain “deferred action” and work authorization from USCIS. Both individuals who are in removal proceedings (deportation) and those who are not in removal proceedings can apply for this benefit. Deferred action and work authorization will be valid for a two year period and can be renewed.

Eligible individuals must:

  • Be 15-30 years old, and have entered before age 16
  • Have been present in the US for 5 years as of June 15, 2012
  • Have maintained continuous residence
  • Have not been convicted of a felony, a significant misdemeanor or multiple minor misdemeanors
  • Be currently in school, graduated or have a GED, or is an honorably discharged veteran
  • The deferred action offer will be available to those in proceedings, as well as to those who apply affirmatively.

Find more information and how to apply here!

L-1B Visa

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My company wants to transfer me to the US. My job title is software engineer. I read on your website that I can get L1 visa to transfer but I am not a manager. Is it possible?

You may qualify for an L1B visa provided that you worked for this company for one year of out the last three years and your job requires “specialized knowledge.” Specialized knowledge refers to:

  • knowledge of products, services, research, equipment, techniques, management, or other interests and its application in international markets, or
  • an advanced level of knowledge or expertise in the employer’s processes and procedures, such as the ability to train others or perform specialized knowledge services in areas such as software, service and repair of products, and improving manufacturing methods

J1 Waiver

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I am currently on a J1 visa and am working at University of Chicago. I need a J1 waiver so I can switch to H1B visa because I am on my final J1 extension. Can I do no objection waiver? I am from Argentina.

A no objection based waiver is likely a good choice for you provided that you did not receive any government funding for your J1 program. However, if you have received government funding such as Fulbright, the chances of a no objection based waiver are very small without significant political support.

Marriage Green Card

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My wife entered the US on a tourist visa two months ago. We weren’t planning on getting married but we ended up in Las Vegas and got married in a spur of the moment thing. What do we do now? Can she stay here or does she need a K3 visa?

Immigration law discourages persons entering the US for one stated purpose but then pursues another. This includes entering the US as a visitor in B2 status or through the visa waiver program. Failure to follow the rules can lead to charges of visa fraud and removal from the US. Fortunately, the law does recognize that people do change their minds. In this situation you will need to weigh the risks associated with your desire to both remain in the United States. If your marriage occurred two months after she entered the US as a visitor and you did not plan to marry prior to her entry, it may be safe for her to remain in the US and apply for permanent residence and no K3 visa would be necessary.