Immigration Lawyer Peter Messersmith

Peter Messersmith is an attorney located in Orlando, Florida. He has been practicing immigration law since 2002 and has represented thousands of immigrants and US businesses with their immigration needs.

Visa for a Mixed Martial Arts Coach

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I am starting a mixed martial arts school in San Diego and would like to bring a several instructors here to teach. I have an individual from Brazil and another from Thailand. They’ve both won several tournaments in BJJ and Mui Thai and have coached fighters competing in both PRIDE and UFC. While my school isn’t quite ready to open, I do want to generate some publicity and advertise these two as instructors to build some business so I don’t have an empty building when we open. How can we bring these two to the US and how long will it take to get them here?

The first thought for these types of coaches would probably be a P3 visa since both martial arts are culturally unique to their respective countries. However USCIS, for reasons unknown, rarely approve P3 visas for marital arts instructors. The California Service Center recently denied a P3 visa for a Taekwondo instructor for a Korean national and even conceded that the sport was the national sport of Korea. Therefore, a decision must be made between a P1 visa and an O1 visa. In a previous Q&A, we discussed O1 v. P1 and concluded that the general rule is that O1 visas are for individuals and P1 visas are for groups. However, in this case, the P1 visa is more appropriate for each simply because USCIS has a history of approving P1 visas for martial arts coaches.

We can get the P1 petitions approved by USCIS in 15 days or less and schedule both of them for visa interviews shortly thereafter. They’ll be ready to enter as soon as you need them.

H2B Visa Applicant Not on Country List

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I started a new restaurant and, believe it or not, have had serious trouble finding workers. The winter and summer are the major tourist seasons here in Florida and I have been short staffed since November. I know a group of guys from Spain that I would love to bring in to work over the summer and possibly longer. I know the H2B visa is for seasonal work like mine but I notice that Spain isn’t on the H2B country list. I saw from your web site that there is a way around this. Can you help me out? This could make or break me.

You are certainly correct that the H2B visa is the appropriate visa for seasonal workers. You are also correct that Spain is not one of the approved countries for H2B visas. There is an exception and that is if you can show that visa issuance is in the US interest. USCIS looks to four factors to determine the US interest requirement.

  1. Evidence that the beneficiary has been admitted to the United States previously in H2A or H2B status and complied with the terms of his/her status;
  2. Evidence that a worker with the required skills is not available from a country on the list of eligible countries;
  3. Potential for abuse, fraud, or other harm to the integrity of the H2A or H2B program through the potential admission of these worker(s) that a petitioner plans to hire; and
  4. Other factors that would serve the US interest, if any.

It is not necessary to prove all four factors. “Other factors” stated in factor 4 are evidence that the H2B sponsor or the US industry or government agency would suffer harm without the services of the H2B visa applicant.

Funding Repayment in Lieu of J1 Waiver

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I came from South Africa on a J1 visa last September which was funded by the Department of State. I’m subjected to the two year requirement. I met my girlfriend who is a US citizen and we want to get married. I would like to get a J1 waiver by paying back the amount I received from Department of State. Can I do that?

I have some bad news for you. Paying back funding to get a J1 waiver or to avoid to home residency requirement altogether is not an option. The State Department wants J1 holders who entered through their programs to return to their home countries. You will have to apply for a J1 waiver if you do not wish to return to South Africa for two years. If you marry your girlfriend, she may be able to help you obtain a J1 hardship waiver. However, due to the fact that you had government funding, possibly Fulbright, the State Department is going to hold you to a very high standard when adjudicated your waiver petition. We have obtained J1 waivers for persons whose programs were funded by the State Department so we may be able to help you. You’ll have to contact our office so we can review your options with you.

F1 Visa After J1 Waiver Approval

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I am a graduate student at USC and I am originally from Poland. I originally came to United States on J1 visa. I got a J1 waiver and changed to F1 visa. I don’t have any current visa in my passport. I need to travel home to visit my parents and was wondering how I should go about it? Will I have any trouble coming back to United States because I got the J1 waiver? Thanks.

Because you do not have a F1 visa in your passport, you will need to apply for a F1 visa at the US Embassy. While you should not have any additional difficulty in securing the visa simply because you obtained a J1 waiver, you will still need to prove to the satisfaction of the consular officer that you have strong ties to Poland and that you intend to return upon completion of your studies. This can be difficult to do if you do not have family or employment in Poland or you have already been in the US for an extended period of time.

J1 Waiver (Hardship) for Physicians

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I was recommended by Dr. Singh. We both on J1 visas and are both working in the same clinic. You helped her secured her J1 waiver through hardship to her US citizen husband. We both married to US citizens. I spoke to Dr. Singh. After knowing her hardship is merely a financial hardship, you were able to get her case approved. I feel encouraged. I have a child who required medical attention due to a heart defect. She can only get very limited treatments in Pakistan- my home country. My wife is suffering depression and can barely hold a job for a long term. We have student loan and other debts as well. If I to return back to my home country, my wife will not be able to take care of our daughter here by herself. If we all return, my daughter’s condition may get worse and we’ll not be able to pay the debt. Please let me know if you think that I have a good chance to pursue a waiver.

Based on the hardships you have described, medical hardship, psychological hardship and financial hardship, it sounds like you have a very promising case. In some hardship cases, if you have both a US citizen spouse and one or more US citizen children, USCIS seems to be more lenient about proving exceptional hardships. However, in your case it does sound like your family would suffer exceptional, if not extreme, hardship if you were required to return to Pakistan for two years. Contact my office. We will be able to assist you in this matter.

O1 Visa Self Sponsorship

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I would like to know if it is possible to incorporate my own company to sponsor me for a O1 visa? I spoke to one lawyer and was told I can sponsor myself as long as I have strong reference/creential letters. Another lawyer I spoke with told me that I cannot incorporate on my own and self-sponsor. So who’s right?

While it is true that O1 visa beneficiaries cannot self-sponsor, if the position is one that traditionally involves self-employment, you may be sponsored by a US agent rather than an employer. Moreover, USCIS has recently taken a tough stance against self sponsorship in the H1B visa area and is likely taking a strong stance against other visa types. It would be risky to self sponsor in this environment but a case could be made and even approved. They certainly have been in the past.

Copying a Naturalization Certificate

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Hi, I recently obtained US citizenship through your firm and got my naturalization certificate. I see that on hte certificate it says that I cannot copy it. But I want to bring my parents to the US and I know that they’ll need copies. Wha to do?

While the naturalization certificate does state that it is unlawful to duplicate, it is in fact alright to make copies for lawful purposes such as proving citizenship in order to sponsor immigrant family members.

J1 Waiver for a J2 Holder

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I have J1 visa and my spouse J2 visa. Our visa expires on September 6, 2012 and I am leaving with my kids back. But my husband needs to stay here in order to improve his English and get some upgrade in his education. But he has as I do, two year rule restriction. Can you help us to waive this 2-year rule? If I am not intending to stay here and planning to leave in April, is it possible that the process goes without me. Or is it necessary, that I stay here till the decision is made.

Canceling the labor certification is not required. You can file simultaneous EB1 and NIW petitions and We can help you with a waiver. You do not need to stay here until the decision to be made but it’s not possible to process the case without you.

Religious Worker Portability

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I have an approved religious worker visa and my green card is waiting for approvel. I was wondering if I can switch to another church before I get the green card?

The answer is no if you still want to obtain the green card. The law, specifically AC21, allows porting between employers where there is an approved I-140 and a pending I-485 but religious workers are not included in this legislation. You will have to remain with you sponsoring employer until your I-485 is approved.

Fast NIW Green Cards

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I heard you from a friend who received his green card through NIW in less than a month after filing. I looked at your approved petitions and found more NIW and EB1 petitions approved in weeks. I can’t believe this. I have a pending labor which was filed in the beginning of last year. In this case, do I need to withdraw the labor then file NIW or file NIW immediately without canceling the labor. Please let me know ASAP so I can start my case with you. Thank you.

Canceling the labor certification is not required. You can file simultaneous EB1 and NIW petitions and retain the labor certification filing. For many scientists and researchers, a labor certification is not required and will significantly lengthen the amount of time it takes to obtain residency. In addition, the NIW and EB1 avenues do not require employer sponsorship which is very difficult for the majority of new PhD holders to obtain. Please send us a copy of your CV/resume and we can determine if you are qualified for a self sponsored EB1 and/or NIW application.