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.

Immigration Success Stories – INA 212(a)(2)(c)(i)

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Immigration Success Stories – INA 212(a)(2)(c)(i)

In January of 2018 a Hollywood talent agency informed us that one of their clients applied for a visa nearly six months ago and after a lengthy delay due to administrative processing was just refused pursuant to INA 212(a)(2)(c)(i).  We spoke to their client and learned that during his interview, the Consular officer repeatedly questioned his work, his contacts, and made numerous inquiries about his previous manager.  We agreed to take the case.

Our client assured us that he was never a drug trafficker and he wasn’t associated with anyone who was.  He speculated that the Embassy believed that his previous manager was involved.  Winning a INA 212(a)(2)(c)(i) case is complicated because of the “reason to believe” standard.  The Embassy may refuse a visa under INA 212(a)(2)(c)(i) if he or she has a reason to believe the visa applicant is or has been a trafficker or an abettor of a trafficker.

After petitioning the Embassy for further information we were able to learn that they believed our client’s former manager was a drug trafficker and because our client was paid through his manager, their position was that our client was involved.  After an extensive fact finding mission, we were able to prove that our client was not involved in drug trafficking in any capacity and we were able to have the charge completely removed from his record.

Thereafter, we helped the talent agency sponsor this actor for a O1 visa and at his next appointment with the Embassy everything went smoothly and he was able to enter the US without any further issue.  Do you have a similar inadmissibility issue?  If so, contact our office and we’ll see if we can correct this for you.

How to Handle an RFE or NOID

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What is an RFE?

A Request for Evidence or RFE is a second chance to get your case approved by USCIS.  If USCIS determines that the initial application did not contain all required initial evidence or that the evidence submitted does not demonstrate eligibility, an RFE will be issued asking the applicant or petitioner to submit additional documentation.  In some instances an application or petition will be denied without requesting additional evidence but this is extremely rare.   In other cases where USCIS is predisposed to denying an application or petition, it will issue a Notice of Intent to Deny (NOID).  In most cases USCIS will allow 87 days to prepare and file a response to an RFE.

What is a NOID?

A Notice of Intent to Deny or NOID is much harsher than an RFE.  An NOID is issued after USCIS reviewed an application or petition and either 1. believes there is no basis to approve the case or 2. USCIS has other negative evidence, that it may or may not share with the applicant or petitioner, that may render the applicant ineligible.  In most cases USCIS will allow 30 days to prepare and file a response to an NOID.

Why Did USCIS issue an RFE or NOID?

The reasons for the RFE or NOID will depend on the type of application or petition submitted.  For example, if the request relates to an 1-129 petition such as an H1B, USCIS may question whether the position is truly a specialty position or whether or not there is a true employer-employee relationship between the petitioner and beneficiary.  If the request related to an I-140 petition such as an EB1 or NIW, USCIS may question whether the beneficiary’s educational credentials qualify as an advanced degree or if the beneficiary’s professional accomplishments meet the minimum requirements for the petition.

What Should I Do if I Get an RFE or NOID?

First of all, just because you received an RFE or NOID doesn’t mean that you or your attorney did anything wrong.  Your application or petition may have been prepared thoroughly and the adjudicating officer did not review everything or misapplied the laws or regulations.  Getting an RFE or NOID can be an opportunity to reintroduced already submitted documentation and giving them greater emphasis to ensure the adjudicating officer understands their importance.

How Should I Respond to an RFE or NOID?

Most RFEs or NOIDs are complicated and require a certain expertise to handle.  You should be mindful of the the response deadline and understand that your response to their inquiry is likely the last chance you will have to get your case approved unless you are interested in going through the long and difficult appeals process.  Strategy is key in handling your response and we have been handling RFE and NOID responses for almost 20 years.  A well documented, convincing and thoroughly prepared application is the only way to win in either situation.  We have won many difficult cases.  If you would like our expert help, please feel free to email your RFE or NOID to info@messersmithlaw.com or call us at 305 515 0613.   We look forward to winning your case for you.

Immigration Success Stories – INA 212(a)(6)(c)(ii)

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Immigration Success Stories – INA 212(a)(6)(c)(ii)

In October of 2001, our client wanted to enter the US but did not have a visa.  She was introduced a man named Hamid in Toronto, who offered to take her for $2,000 and told her that he could get her in legally.   Hamid drove her to the Seattle port of entry and a CBP officer stopped them and questioned them separately.  Separately, Hamid told the CBP officer that our client was a US citizen and produced his own daughter’s US birth certificate claiming that it belonged to our client.  At the same time, when our client was questioned separately, she stated that she was an Indian citizen and produced her Indian passport.  She was refused entry.

Our client later applied for an immigrant visa through the US consulate in Mumbai, India.  Based on her previous encounter with CBP, which occurred nearly 20 years ago, the Consular Officer found our client ineligible under Section 212(a)(6)(c)(ii).  She protested and attempted to argue the matter but she was dismissed and was told she would never enter the US.

When our client came to us, she felt she had no chance of ever entering the US but wanted to see if there was any possibility for a waiver.  Under current rules, she would never be eligible for an immigrant visa waiver.  When we told her this she was distraught but we told her that she had one other option.  Because Hamid was the one who told the CBP officer that she was a US citizen, we felt we had a strong chance to overturn the Consular Officer’s decision.  And that is exactly what we did.  Just 3 months after we took her case, we were able to get the INA 212(a)(6)(c)(ii) charge completely removed from her record and she was able to obtain her immigrant visa.

Do you have a similar inadmissibility issue?  If so, contact our office and we’ll see if we can correct this for you.

Immigration Success Stories – INA 212(a)(6)(C)(i) & INA INA 212(a)(9)(b)

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Immigration Success Stories – INA 212(a)(6)(C)(i) & INA INA 212(a)(9)(b)

Our client was employed with US company A from 2017 through 2019 on H1B visa status.  US company B filed a new I-129 for new employment with their firm to begin in 2018.  USCIS approved the I-129 petition but denied the application for a change of status.  In their decision, the USCIS noted that our client could not establish that he was employed with US company A since the company had, unbeknownst to our client, withdrew the previously approved I-129 petition.  Our client then applied for his H1B visa stamp at the US Embassy which was refused pursuant to INA 212(a)(6)(C)(i) and INA 212(a)(9)(B).

INA 212(a)(6)(C)(i) relates to a false representation in order to obtain an immigration benefit.

INA 212(a)(9)(B) relates to unlawful presence in the US for more than 180 days.

Even though our client was never notified by US company A nor their attorney that they withdrew his I-129 petition, the US Embassy still accused him of misrepresentation of his prior H-1B visa status in the US and told him that because his petition had been withdrawn he has been out of status the entire time!  While the 212(a)(9)(b) charge carried a temporary bar, the 212(a)(6)(C)(i) charge is permanent.  We were able to present a strong defense on his behalf to both the US Department of State and the US Embassy which ultimately resulted in the removal of both charges from his record so he was able to obtain a new H-1B visa and reenter the country to work for US company B

Do you have a similar inadmissibility issue?  If so, contact our office and we’ll see if we can correct this for you.

214(b) Visa Rejection

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If a consular officer finds you are not eligible to receive a visa under U.S. law, your visa application will be denied, and you will be provided with a reason for the denial.  There are many reasons a visa applicant could be found ineligible for a visa.  A list of these ineligibilities can be found here.  Some ineligibilities are temporary and pass after a certain number of years and others are permanent.  If you are inadmissible to the US because of an ineligibility, we can help you with a waiver or help you overcome the ineligibility determination.  If you are refused a visa under section 214(b), it means that:

  • The consular officer did not believe that you qualify for the nonimmigrant visa category you applied for; and/or
  • The consular officer did not believe that you overcame the presumption of immigrant intent by sufficiently demonstrating that you have strong ties to your home country that will compel you to leave the United States at the end of your temporary stay. (H-1B and L visa applicants, along with their spouse and any minor children, are excluded from this requirement.)

Although a 214(b) isn’t a permanent ineligibility, there is no appeal process and it can significant impact your future visa applications.  Fortunately, there is a solution and we have helped many visa applicants overcome a prior 214(b) refusal through a new visa application.  This can be done by providing new application documents and being thoroughly prepared for your next visa interview.  Multiple 214(b) denials are very hard to fix so preparation is key.  If you want to give yourself the best chance of success, we are here to help and we have successfully helped thousands of people win their complicated immigration cases.

Immigration Success Stories – INA 212(a)(6)(e) & INA 212(a)(6)(c)(i)

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Our client, a Chinese citizen, entered the US along with her two minor children as tourists.  During their trip in the US, she enrolled them in school for approximately two months before they all returned to China.  They left before their period of authorized stay expired.  Later on when their visas expired, she returned to the US Embassy to renew her tourist visa and apply for student visas for her children.  However, she was refused  pursuant to section INA 212(a)(6)(E) and INA 212(a)(6)(c)(i) while her children were given a 214(b) refusal.

INA 212(a)(6)(E) relates to smuggling or helping someone obtain a visa or enter the US illegally or for a purpose inconsistent with the visa type obtained or applied for.

INA 212(a)(6)(c)(i) relates to making a fraudulent statement or producing fake documents in order to obtain a visa or procure entry to the United States.

The US Embassy accused our client of misrepresenting the purpose of her trip to the US when she applied for her visa and for violating immigration rules when she enrolled her kids in school when they were in B2 visa status.  These inadmissibility charges rendered it nearly impossible for her or her children to ever obtain visas again to enter the United States but we were able to present a strong defense on her behalf to both the US Department of State and the US Embassy which ultimately resulted in the removal of both charges from her record so she and her children became eligible for any type of US visa.  We then helped her secure a new tourist visa and two student visas for her children.

Do you have a similar inadmissibility issue?  If so, contact our office and we’ll see if we can correct this for you.

EB1 Extraordinary Ability Petitions for Engineers

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EB1 Extraordinary Ability Petitions for Engineers

The EB1 extraordinary ability green card allows anyone in the arts, sciences, business, education or athletics to sponsor their own green card.  No job offer or labor certification is required.  The requirements for this category are quite high but not insurmountable.  Our office has handled thousands of immigration cases and have secured many EB1 approvals for our clients.  Many people believe that the EB1 category is limited to scientists or researchers or those who have won Nobel prizes.  This is simply not the case.  We have helped many people in business fields with job titles like Subsea Intervention Engineer, Project Engineer, Computer Engineer, Industrial Engineer, Chemical Engineer, Mechanical Engineer self sponsor through the EB1 category.

In order to qualify for EB1 classification, you must be able to prove you meet three out of the following ten items:

  • Receipt of lesser nationally or internationally recognized prizes or awards for excellence;
  • Membership in associations in the field that demand outstanding achievement of their members, as judged by recognized national or international experts;
  • Published material about the alien in professional or major trade publications;
  • Evidence that the alien is a judge of the work of others in the field;
  • Evidence of the alien’s original contributions of major significance to the field;
  • Authorship of scholarly articles;
  • Display of the alien’s work at artistic exhibitions or showcases;
  • Evidence the alien has performed in a leading or critical role for organizations that have a distinguished reputation;
  • Evidence that the alien commands a high salary in relation to others in the field; or
  • Evidence of commercial success in the performing arts.

None of our clients have sufficient documentation to argue all of these elements and it is not necessary to meet all of them, only three.  We typically have enough documentation to argue 4-5 and as long as we can prove three, that is enough.  Typically engineers like Project Engineer, Computer Engineer, Industrial Engineer and other people in the engineering fields have similar types of experience and accomplishments.  Awards are rare and usually company specific and none have any artistic exhibitions or performing art success.  However, we were able to help our clients to document performance evaluations, business proposals or project management to win judge criteria.   Many projects result in economic benefits, job creation, market share increase or other specific benefits.   Engineers normally do not always have job titles that appear as if they are in leadership positions but, in fact, the actual roles and duties they perform can be shown to be leading or critical for entire divisions of major companies.  We were able to show that their role was leading or critical in their organization.  These are the most common types and if you have made accomplishments in these three areas, then you may have a good EB1 case.

Divorce after Conditional Green Card

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Divorce after Conditional Green Card

When a foreigner marries a US citizen, the US citizen spouse can file to sponsor the foreign national for permanent residency (green card).  If the marriage is less than two years old at the time the applications are approved, the foreign spouse will receive a conditional green card which is valid for two years.  Three months prior to the expiration of that card, the couple must jointly file another application for a permanent card.  But what if the marriage didn’t survive?  If the marriage is over, there’s a good chance you will lose your green card but there are ways to file without your ex-spouse and we have helped many people successfully do so.  Here are two examples.

Case 1:

US citizen and foreign spouse loved each other and got married.  We obtained a conditional green card for the foreign spouse in about 4 months.  The US citizen was transferred to a different city to work but the foreign spouse had a good job in the city where they met so they decided to work in different cities but see each other as often as they could.  Even though they had a baby together, the distance apart took a toll on their marriage and they decided to divorce after a year and two months.  They separated on good terms and the US citizen asked us to help the foreign spouse obtain a permanent green card.  We worked with both of them and obtained a permanent green card for the foreign spouse in about 6 months.

Case 2:

Foreign spouse came to us for help and indicated that her US citizen spouse was unfaithful.  Since they both had a very difficult relationship, we worked with the foreign spouse alone and built a strong case to obtain a permanent green card for her.

Many people believe that it’s impossible to obtain a permanent green card after the divorce.  That isn’t the case.  We have successfully helped many foreign spouses obtain permanent green cards after divorce.  Feel free to call us at 305-515-0613 or email us at info@messersmithlaw.com

EB1 Extraordinary Ability Petitions for Engineers

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EB1 Extraordinary Ability Petitions for Engineers

The EB1 extraordinary ability green card allows anyone in the arts, sciences, business, education or athletics to sponsor their own green card.  No job offer or labor certification is required.  The requirements for this category are quite high but not insurmountable.  Our office has handled thousands of immigration cases and have secured many EB1 approvals for our clients.
Many people believe that the EB1 category is limited to scientists or researchers or those who have won Nobel prizes.  This is simply not the case.  We have helped many people in business fields with job titles like Subsea Intervention Engineer, Project Engineer, Computer Engineer, Industrial Engineer, Chemical Engineer, Mechanical Engineer self sponsor through the EB1 category.

In order to qualify for EB1 classification, you must be able to prove you meet three out of the following ten items:

Receipt of lesser nationally or internationally recognized prizes or awards for excellence;
Membership in associations in the field that demand outstanding achievement of their members, as judged by recognized national or international experts;
Published material about the alien in professional or major trade publications;
Evidence that the alien is a judge of the work of others in the field;
Evidence of the alien’s original contributions of major significance to the field;
Authorship of scholarly articles;
Display of the alien’s work at artistic exhibitions or showcases;
Evidence the alien has performed in a leading or critical role for organizations that have a distinguished reputation;
Evidence that the alien commands a high salary in relation to others in the field; or
Evidence of commercial success in the performing arts.

None of our clients have sufficient documentation to argue all of these elements and it is not necessary to meet all of them, only three.  We typically have enough documentation to argue 4-5 and as long as we can prove three, that is enough.  Typically managers like IT Managers, Project Managers and other people in the business field have similar types of experience and accomplishments.  Awards are rare and usually company specific and none have any artistic exhibitions or performing art success.  However, most of our clients do judge the work of the peers in the form of performance evaluations, business proposals, or by managing specific projects.  Most of our clients are able to show that projects that they have managed or lead are significant and have made an impact in the field.  Many projects result in economic benefits, job creation, market share increase or other specific benefits.   Managers by definition are leadership positions.  Most of our clients are able to show that their role was leading or critical in their organization.  These are the most common types and if you have made accomplishments in these three areas, then you may have a good EB1 case.

Feel free to call us at 305-515-0613 or email us at info@messersmithlaw.com for an evaluation.

E2 Visa to Green Card

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E2 Visa to Green Card

If you do not have family green card options or want to make a supersized EB5 investment, there are two primary ways to obtain a green card as an E2 visa holder.

1. Self sponsored green card option

In an effort to encourage foreign nationals to immigrate to the United States, establish or purchase a business and employ US persons, USCIS has established a new set of regulations specifically for foreign entrepreneurs.  This new regulations allow entrepreneurs to obtain permanent residency through the  EB2 NIW category.  This blog post will cover using the NIW to obtain a green card by establishing a US business and hiring US workers.

The National Interest Waiver allows a foreign national to apply for permanent residency through the EB2 category without having a US employer or a job offer.  This means that there is no requirement to undergo PERM labor certification and petitions can be approved in as little as 3 months provided that the entrepreneur’s immigration is in the national interest.

The entrepreneur can show his immigration is in the national interest if he can establish the following three points.

1. The NIW entrepreneur must seek employment in an area that has substantial intrinsic merit.  An example would be a structural engineer working on highway bridges.
2. The NIW entrepreneur must demonstrate that the proposed benefit to be provided will be national in scope.   For example, the entrepreneur might be able to demonstrate that the jobs his or her business enterprise will create in a discrete locality will also create (or “spin off”) related jobs in other parts of the nation. Or, as another example, the entrepreneur might be able to establish that the jobs created locally will have a positive national impact.
3. The NIW entrepreneur must demonstrate that the entrepreneur will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.  The entrepreneur who demonstrates that his or her business enterprise will create jobs for U.S. workers or otherwise enhance the welfare of the United States may qualify for an NIW. For example, the entrepreneur may not be taking a job opportunity from a U.S. worker but instead may be creating new job opportunities for U.S. workers. The creation of jobs domestically for U.S. workers may serve the national interest to a substantially greater degree than the work of others in the same field.

The USCIS is finally recognizing that immigrants are vitally important to the success of the US economy and are providing additional avenues to permanent residence for them.  If you are considering starting, purchasing or expanding a US business, the NIW may be the right choice for you.

2. Employer sponsored green card option (EB2/EB3)

The EB2 employment based green card is for individuals who are members of the professions with advanced degrees (any degree above a baccalaureate degree or a baccalaureate degree and at least 5 years progressive experience in the professions) or who have exceptional ability in the sciences, arts, or business who will substantially benefit the United States.  The combination of a baccalaureate degree with 5 years experience in the professions is deemed equivalent to a Master’s degree. If a doctoral degree is required for the particular profession, the alien must possess the doctoral degree.

EB3 employment based green card is for professionals who hold a US baccalaureate degree or foreign equivalent degree that is normally required for the profession. Education and experience may not be substituted for the degree.

The EB3 employment based green card is also for skilled workers and other workers who are not seasonal or temporary and require at least two years of experience or training as well as other workers are those who are capable of performing unskilled labor, not of a temporary or seasonal nature, for which qualified workers are not available in the US.

In order to obtain permanent residency through the EB2 or EB3 category, the applicant must have an employer willing to sponsor him or her through PERM Labor Certification. The applicant does not have to be employed when labor certification/PERM is filed. A job offer is sufficient. Labor certification/PERM is the process whereby, the US government determines whether qualified US workers can fill the open position. Once the labor certification is approved, the employer may sponsor the applicant for permanent residency.

The EB2/EB3 process is as follows:

  • The employer performs the PERM labor certification process;
  • The employer sponsors the employee for a green card; and then
  • The employee adjust his or her status to permanent resident.

We have successfully helped thousands of clients obtain green cards.  Feel free to call us at 305-515-0613 or email us at info@messersmithlaw.com.  We look forward to helping you and your family obtain green cards like we have for thousands of other clients.