P3 Visa Denial

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I am the leader of a small band from the Dominican Republic that sings Perico ripiao. We applied for a P3 visa so we could perform at several locations in the US. Our case was denied by INS because they said our performances were not culturally unique. We received a notice that we could appeal but I don’t know if we should. Can you get this case approved for us?

Unfortunately, these types of decisions are becoming more and more common. There are certain visa classifications such as the P3 visa which USCIS, and some Service Centers in particular, feels are often abused. Although, I have not yet seen your denial notice, I am quite certain that this decision was made by the California Service Center.

Merengue tipico or Perico ripiao is certainly a culturally unique singing style which is common in the Dominican Republic. This type of case can easily be won on appeal. However, appealing this type of case is often more expensive than refiling, as appeals are generally more complicated than filing the first time and the processing times are generally longer. You may consider refiling but it is ultimately your decision.

Travel After Asylum Approval

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My asylum was approved in 2007 and I want to travel. My old passport is still valid but I heard I shouldn’t use it. If I don’t use the passport, how can I travel?

Definitely do not travel on your old passport. Using the passport may cause your asylee status to be revoked and you may be unable to obtain permanent residency or US citizenship when you are otherwise able to apply. The USCIS offers a refugee travel document which may be used in place of a passport for asylee travel. Be sure to obtain the document before traveling and do not return to your home country.

EB5 Investment Based Green Card

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How long does it take to get a green card through the EB5 program? As long as I make the required investment, the visa is guaranteed, right? I also read that the EB5 program will end soon, is that true?

Current processing times are about 4-6 months for both Form I-526 and Form I-829. According to USCIS figures, there were 692 EB5 cases filed from October 2008 through May 2009 and 608 were approved so your chances are good but not guaranteed. There are many factors which can lead to a denial so you must be sure to prepare your application very thoroughly. The EB5 program is scheduled to sunset in September but it is widely expected that the program will be extended but because applications are taking 4-6 months to get approved.

LPR Travel Outside the US for More Than One Year

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I’ve held my green card since 1995. I was recently laid off due to the slowing economy and am considering moving back to England. I don’t know if I will return but I would like to keep that option open if I do decide to come back. What can I do?

In order to maintain your permanent residency in the US, you must evidence your intention to remain a permanent resident. This is normally shown through presence in the US. If you anticipate being outside of the US for more than one year, you should at the very least, apply for a re-entry permit before you leave and make some regular trips to the US during your time outside. There are a few other options to maintain residence but they do require some effort and expense.

Company Relationship Requirements for the L1 Visa

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I have a B1 visa right now and I am in negotiations to purchase a US company. I have a company in Brazil that is looking to expand and found some opportunities here. What kind of visa can I get if I buy this company?

If you have worked for the Brazilian company for one year out of the last three in a managerial or executive position then you will be able to obtain an L1A visa. Many people believe that L1 visas are impossible in new acquisition scenarios but that is not the case. There is no time requirement for the relationship between the US company and the foreign company.

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.