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 Waiver Entry Prior to H1B Start Date

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My H1B visa was approved in June 2009 and my employment was supposed to start October 1, 2009. Due to slowing business at my company, my boss asked me to start in January rather than in October. The problem is that I already have a lease on an apartment and I would still like to come to the US in October. Can I do that using the visa waiver program?

There are no regulations that would bar you from attempting an entry through the visa waiver program or with a B1/B2 visa. However, you will need to justify your entry as consistent with an entry for tourist of business purposes. The CBP officer that interviews you will have discretion to deny your entry if he or she believes otherwise.

H1B Visa Advertising Requirements

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I would like to apply for an H1B visa but I have some concerns. I heard that my employer has to advertise for my position to make sure no Americans want the job before he can sponsor me. Is that true?

No, advertising for the position is not a requirement for the H1B visa program. Advertising the position to see if there are any minimally qualified US workers who want the position is a requirement of the PERM/Labor Certification program which is the first step in some employment based green card applications. The idea of requiring employers to first offer job openings to US workers before foreign nationals is something that has been considered by Congress off and on over the years. Most recently, Senators Grassly and Durbin floated this idea back in April 2009.

H1B Visa vs. H1C Visa for Nurses

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I am foreign educated Registered Nurse. I have obtained nursing license for RN from Arkansas State Board of Nursing. Due to my F1 visa status I am not able to get RN jobs in the USA. At present I stay in Little Rock, AR and looking for a job as RN. I come to know about your law firm and having hope to get Nursing job through H1C visa. I would like to apply for that. Thus, Will you help me to change my visa status from F1 to H1C? If so, what are the processes and criterias?

Very few hospitals qualify to sponsor a foreign nurse for an H1C visa. In fact, I am only aware of 14 such hospitals which are listed on our web site here. Hospitals not on the list may apply through the DOL for H1C certification so they may sponsor H1C visas but they must meet stringent requirements. We encourage foreign nurses to apply through the H1B program rather than the H1C program if they cannot find H1C sponsorship from one of the 14 hospitals on our web site. A nurse may obtain an H1B for certain specialty or supervisory nursing positions such as a clinical nurse specialist or certified nurse practitioner. The applicant must also hold a BSN, other Bachelor’s degree or equivalent if applying as a nurse manager or administrator.

Chinese Applicant for Asylum

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I am from China and I would like to apply asylum. I was persecuted because I had two children. Can you help?

Simply having two children and being Chinese will not result in an asylum approval. However, if you are able to show real persecution because you had two children, such as losing your job, being arrested or fined then you definitely have a case.

L1A New Office Petition

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My brother and I have a company in Brazil. We have 12 employees and an annual turnover of about $500,000 USD. I want to come to open an office in the US using the L1 visa. Is this possible for a small company like ours?

While it certainly makes the case easier if your company were larger, the issue in your case would be how to show that your role in the US enterprise is managerial or executive in capacity. The number of employees in the foreign parent company or in the new US enterprise is not dispositive and we have handled many L1A new office applications where the L1 visa applicant will be the sole employee for the first year of operations.

Notice of Intent to Deny (NOID) Received in an EB1 Extraordinary Ability Petition

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Thank you for providing this service. I have filed an EB1 application through another law firm and have received a notice of intent to deny NOID. I have about 40 publications, 200 citations and 15 patents and review manuscripts for 5 international journals. I thought I had a good case but now I am not so sure. Is it possible to change their opinion of me and get my green card approved?

First, let me state that USCIS is making all types of applications more difficult. That being said, there is no reason why your EB1 case should be denied. Your stated qualifications are greater than the majority of our EB1 clients and we can very likely get your case quickly approved. There are many reasons that could explain why you received a NOID. It could be that your qualifications were not presented well to the USCIS officer. It could be that your recommendation letters were poorly written or not from appropriate persons. It could also be that the USCIS officer made an error and/or is not familiar with the regulations or law. You should be aware that the USCIS allows 30 days to respond to a NOID, so you will have to act quickly to have your response filed. If you would like our assistance, please contact my office as soon as possible to avoid missing your response deadline.

I-140 Upgrade from EB3 to EB2

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Hi, I was hoping you could tell me if I can upgrade my I-140 from EB3 to EB2. Is that possible? EB3 is taking forever and I know I can get green card quickly through EB2. Thx.

Yes, not only is that possible but both the Nebraska Service Center and the Texas Service Center have both issued clear guidance for I-140 upgrades.

Change of Status from J1 Visa During the 30-day grace period

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I just finished working for a hotel chain in J1 which is now expired. I was hoping you could help me change to student visa. Is it possible?

Upon completion of you J1 program (the end date on your DS-2019 form), you have a 30 day grace period. We can help you change to F1 visa status during your grace period so long as the start date for the F1 falls within the grace period.

Form I-130 Revocation

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My wife just attended an immigrant visa interview at London and not only was the case denied but the officer told her that the petition would be revoked! This is insane! What can we do? Can we appeal?

Unfortunately, an Consular Officer’s decision cannot be appealed. However, what can be done, through attorney channels, is to determine why the immigrant visa petition was denied and returned for revocation. Then a response to the revocation request can be filed with the USCIS office that approved the Form I-130. The USCIS then can send the case back to the Consular Post with instructions to reconsider their decision which can result in a second interview. This process can take up to two years but in some cases it can be as fast as 6 months.

H1B Visa Cap for Fiscal Year 2013 (Oct 2012 – Sept 2013)

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Hello. I wanted to change to H1B visa but I heard that they’ve all been used up. Is this true or can I still apply?

US Immigration law provides for 65,000 H1B visas for each fiscal year. H1B holders filing for extension or transfers are not counted against this annual cap. There is an additional 20,000 H1Bs available for foreign nationals who hold Master’s degrees from US Universities.

USCIS has indicated that all available H-1B visa numbers have been used for FY 2013.  You may apply in April 2013 for an October 2013 start date.