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 for Business Purposes Refused at Chicago O’Hare

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My name is [REDACTED] and I am the CFO for [REDACTED], a UK firm that has offices in NY and Chicago.  I recently attempted to enter the US for business purpoes through the visa waiver program but was denied entry.  I explained that the purpose of my entry was to review accounting procedures at our newly opened branch office in Chicago.  Immigration told me that they considered this work and that that was not authorized under this program and that I should apply for a work visa.  Is this new policy?  I have never had trouble with this before.

I have seen this type of issue before and I have made it a point to be available for my clients who enter through O’Hare in case they run into entry problems like yours.  If you had called me at the time of your entry I may have been able to sort this out with CBP at O’Hare but since you’ve already left it is too late. This is not new policy but just a misunderstanding of current policy.  You may use the visa waiver program and the B1 visa for limited business purposes.

Lost I-94 Card and Green Card Application

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I entered the US in 1997 with a visitors visa and overstayed.  I recently married my wife who is a US citizen and we want to apply for my green card.  I lost my i94 card several years ago but I still have my passport.  Will it be a problem?

In order to apply for adjustment of status to permanent resident, with few exceptions, you must be able to show that you were inspected and admitted to the US.  This is typically done by showing your I-94 card and immigration stamps in your passport. Sometimes just the stamp in your passport is sufficient when adjusting but you can also request a duplicate or a replacement for your lost card.

Notice of Intent to Revoke H1B Visa

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Hi, I was previously your client. You got my first H1B approved and then I had another firm apply for my current H1B. I recently got a notice of intent to revoke my H1B and I’m started to freak out! I last entered on an H1B that expires in a month and my I94 is now expired. Can you fix this for me?

Yes, we can absolutely help you. We can respond to the NOID with USCIS and take you to CBP and have them issue a new I94 for you. While there will be risks involved, I feel we have a very good chance of getting you through this.

Green Card Expired While Outside the US

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I had my green card since 1980 but kept my Russian citizenship. Two years ago my Mother took ill and I returned to Russia to help her. She recently died and now I want to return to USA. The problem is my green card has expired. Can I use the expired card to come back?

No, and you’ll have some serious problems in regards to maintenance of your residency. In order to maintain your residency you should be present in the US for half the year or more or have a very good reason for being outside for so long. One way is to apply for a reentry permit before you leave but it doesn’t sound like you did that. You will need to either apply for a returning resident visa or obtain a letter from the Consulate to give to CBP when you attempt to reenter.

Visa Waiver Program Entrant Applies for Adjustment of Status

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I’m from Germany and I entered the US through with the visa waiver. My wife and I married and we applied for the green card but we filed it after the visa waiver expired. At the marriage interview, I was told that they would not approve my green card because I overstayed and I needed to file an I-601 waiver, Can you help us with this?

There is no requirement for a visa waiver entrant to be in status when they apply for adjustment through a US citizen. The officer who told you this is mistaken and we can speak to him or his supervisor to get this corrected without filing an I-601. However, when a foreign national enters the US through the visa waiver program, they waiver many of their rights that they would normally have if they had used a visa. One of these rights is the right to fight removal. Since you have been present longer than 90 days, you may be removed (deported) without any right to a hearing. Therefore, we must proceed cautiously to get your green card approved an issued.

Principle Green Card Applicant to File Without Dependents

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I’m ready to have you handle my green card case through both EB1 and NIW. I do not want to file the green cards petition for my wife and daughters at this time due to our financial situation. Is it Ok if I have my case approved first then file for them? Will they still be able to benefit from my approval? Thanks.

While it is possible under immigration law to do what you are requesting, it can be dangerous if not timed perfectly. I understand that an additional $3,030 in filing fees is a lot of money but I would recommend you either 1. File your EB1 and NIW first without any green card application or 2. Borrowing the money or wait until you’ve saved sufficient funds and then file for everyone simultaneously.

H1B Visa Application while I-140 NIW is Pending

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I’m currently on OPT and I just got a job offer. The company is willing to sponsor me for an H1B visa. I have a pending I-140 through NIW. Can I apply for an H1B visa while my I-140 is pending.

Certainly. An H1B Visa allows the applicant to have both immigrant and nonimmigrant intent so you may apply and obtain an H1B visa while you have a green card application pending.

J2 Visa Holder Applying for a J1 Waiver

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I have J1 visa and my spouse J2 visa. Our visa expires on July 6, 2010 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 August, is it possible that the process goes without me. Or is it necessary, that I stay here till the decision is made.

A J2 visa holder is not eligible to directly apply for a J1 waiver except in certain limited circumstances. You may apply for a J1 waiver and include your husband in the application. We can process the J1 waiver while you are in the US or while you are outside of the US. However, since your husband’s J2 visa status is depending on your J1 visa status, we will need to process the J1 waiver before your program end date and then we can obtain a change of status from J2 to F1 so he can study English.

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.