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Changes to the Way Renewals of Nonimmigrant Work Visas are Handled
Employers who have hired nonimmigrant workers usually acts as sponsors for visas for the workers they employ. Not every employer wants to go through the process of hiring a foreign worker, and many employers prefer to employ foreign workers only if they already have work authorization independent of their employment. Applying for a visa for a nonimmigrant worker can be an expensive process for the employer, and can cause work disruptions when the time comes to renew the visa. Under new guidelines from the United States Customs and Immigration Service (USCIS), the process may get more expensive and time consuming for both the employer and the worker.
Before the changes announced in October, when a nonimmigrant worker needed a visa extension, the application for an extension was not reviewed with the same level of scrutiny as an initial application when there were no changed circumstances with the worker and his employment. However, under current guidelines, the adjudicator reviewing an application for an extension has the discretion to review the application as though it is a new application.
This means that the applicant has the burden of proving all the facts that make him eligible for a work visa, even though nothing has changed since the initial application. The additional requirements are expected to add time and expense to the extension process, which in turn is likely to discourage employers from hiring foreign workers. Visa renewals for foreign workers are usually up for renewal every three years; although in some cases visas may need to be renewed in one to two years. Under the new guidelines, employers and workers may need to go through the grueling renewal process annually or every three years.
This change follows other updates to policies increasing scrutiny on employers who hire workers, especially on the H-1B visa program. The H-1B visa program was originally supposed to allow employers to hire highly skilled foreign workers in fields where there was a shortage of American workers. The H-1B visa process has been criticized as awarding visas to non-qualified workers, and has been targeted for major revision and possible elimination by the current administration. There could be other changes coming to the H-1B visa program and other programs authorizing foreign workers to work in the country. One such change would eliminate a rule allowing spouse of H-1B visa recipients to work in the country under a H-4 dependent visa.
There are legitimate issues with how some employers hire nonimmigrant workers. However, the guidelines implemented by USCIS will probably cause difficulty for legitimate candidates in addition to those who are being hired fraudulently.
Contact an Experienced Immigration Attorney
If you are currently working in the United States on a nonimmigrant visa, you need to review your status and the options you have to continue working legally in the United States. You should consult your own immigration attorney to explore your options if you are nearing the expirations of your visa. For more information, contact our multi-lingual staff to speak to experienced immigration attorney Nathan Wei from Strassburg, Gilmore & Wei, LLP, in Pasadena, California for a consultation.
Consequences for Overstaying on a Non-Immigrant Visa
Most people who visit the United States do so after applying for and being granted a temporary or non-immigrant visa. Although these visitors enter the country legally, they may then sometimes overstay their visas, and remain in the country in violation of immigration laws.
When non-immigrant visas are granted, they usually have a set date on which they expire, and at that point the person travelling on the visa can no longer use the visa to enter the country. When a traveler uses the visa to travel to the United States, the traveler is required to leave on a set date, if the traveler fails to leave, he or she is said to overstay the visa.
Most people who overstay do so because they were not able to get their visas renewed because it meant leaving the country, they found employment or better opportunities, or because they face hardship by returning to their home country. Asylum applications are not always processed in a short period of time, and so for some people, it is easier to get a non-immigrant visa and then fail to return home at the expiration of the visa. Unfortunately, overstaying a visa is as illegal as crossing the border without a valid visa.
A person who overstays a visa can face some of the same consequences as a person who entered the country illegally. For example, if the person leaves the country, he or she can be banned from reentering the country for three to 10 years. The three-year ban applies if the person was in the country unlawfully for 180 days, but less than a year, before voluntarily leaving the country. If a person overstays a visa for more than a year before leaving voluntarily, then the 10-year ban applies if he or she tries to return. If a person overstays and gets deported, he or she becomes permanently ineligible for reentry.
In some cases, a person who has overstayed may be able to apply for an adjustment of status while in the United States. This is an option that is available to people who overstay their visas, but not to people who entered the country illegally without a visa. Most people applying for an adjustment of status do so because they marry an American citizen and wish to apply for a green card.
In most cases, a person who has overstayed a visa and later applies for a green card is required to leave the country to complete the process, but because of the reentry bans, most people would prefer to file for an adjustment of status and avoid leaving the country. To find out if an adjustment of status is possible in your case, you need to talk to an experienced immigration attorney.
Let Us Help You
If you were granted a non-immigrant visa to travel to the United States as a student, tourist, or an employee, and overstayed beyond the time allowed, you may be limited in your options to legalize your status. For more information on how an experienced immigration attorney can assist you, contact our multi-lingual staff to speak to an experienced immigration attorney from Strassburg, Gilmore & Wei, LLP, in Pasadena, California.
Changing or Adjusting Visa Status While in the United States
People visiting the United States for a temporary purpose, such as tourism or to attend school, usually obtain different visas that are grouped into a category known as nonimmigrant visas. The nonimmigrant status usually means that at the time the visa is granted, the person has represented that he or she has no intention of staying in the country long term. However, when a nonimmigrant visa holder changes his plans and wishes to stay longer, he is required to apply for a change or adjustment of status.
A person may adjust status from a nonimmigrant visa status to an immigrant visa status, or change status from one category of a nonimmigrant visa to another. For example, if a visitor on a nonimmigrant tourist visa wishes to change status in order to attend school in the United States, he or she can apply for a nonimmigrant student visa. Similarly, if a visitor on a nonimmigrant visa wishes to get married, he or she can apply to adjust his status to an immigrant visa or lawful permanent residence.
You cannot change your nonimmigrant status if your nonimmigrant visa is expired. You would have to leave the country and reapply for the visa you need from outside the United States. However, if your visa expired and you stayed in the country for a long period of time out of status, leaving the country is no guarantee that you will receive another nonimmigrant visa.
There are some nonimmigrant visa holders who may not change status while in the United States. These include finance visa holders and people who are granted nonimmigrant visa for helping the United States government by informing on terrorism and organized crime. If you cannot change status while in the United States, it does not mean that you cannot change status by leaving the country and reapplying for a different visa from your home country or from another country.
Additionally, some nonimmigrant visa holders, for example under the J-1 visa, are required to return to their home country for a minimum of two years after the end of their program. This means that they are not allowed to change or adjust status before fulfilling the two-year requirement if it applies to them. There is a waiver available under certain conditions. If the person holding a J-1 visa and his or her family members believes they will be subject to persecution based on race, religion, or political opinion upon returning to their home country, they may qualify for a waiver of the requirement. If a waiver is applicable, it may be possible to change or adjust status.
Contact Us for Legal Assistance
Life can be unpredictable, and your reason for visiting the United States may change during your visit, and you may have to apply for a new visa in order to avoid immigration issues down the road. If you need to change your visa from one nonimmigrant visa to another, or from a nonimmigrant visa to lawful permanent resident status, contact us for more information and assistance on filing your application. Contact our multi-lingual staff to speak to an experienced immigration attorney from Strassburg, Gilmore & Wei, LLP.
Undocumented Immigrants and Business Ownership
While some immigrants come to the United States to escape dangerous conditions in their countries, a great number of immigrants also come to the United States to seek economic opportunities through better jobs and sometimes owning their own businesses. Undocumented immigrants who want to start their own businesses may find the process straightforward, although it does not ultimately change their immigration status.
An undocumented immigrant starting a business is not something that is technically sanctioned by the law, and in some ways successfully opening the business as an immigrant is a matter of using certain loopholes in the law. Immigrants who want to open a business in the United States are required to obtain an EB-5 visa, which allows the immigrant to apply for a green card in exchange for investing anywhere from half a million to a million or more dollars in a business in the United States. Not many people can afford this type of visa, and therefore undocumented immigrants opt to go through other avenues.
The first and most obvious challenge to starting a business as an undocumented immigrant is the lack of a social security number. However, most undocumented immigrants overcome this by applying for an individual taxpayer identification number (ITIN). In order to apply for a ITIN, a person has to submit some identifying documentation, such as birth certificate or a foreign passport.
ITINs are issued regardless of a person’s immigration status for purposes of filing taxes. This number cannot give a person work authorization in the United States in the same manner as a social security number. Once a person has an ITIN, he can apply for an employer identification number and set up a business.
With these numbers, an undocumented immigrant can apply for city and state licenses to ensure that the business is in compliance with local laws. However, even business owners who have otherwise followed the law on opening the business and paid all required taxes can be deported as easily as non-business owners who are in the country illegally.
An undocumented immigrant who chooses to open a business takes a chance that he or she can be deported at any time. For example, if the business is robbed, or an employee is attacked and the police are called in, the business owner takes the chance that his or her immigration status will come up, resulting in deportation. Business owners must also make sure that they pay all required taxes on the business income in order to avoid legal issues related to the nonpayment of taxes.
Financial challenges may also affect an undocumented immigrant’s ability to open a business. Because of his or her status, the person may not be able to qualify for a business loan or government grant, and has to rely on savings alone. This may mean that it could take a long time to raise the money it would take to launch a business, and therefore, it means deferring the dream of business ownership.
Let Us Help You with Your Immigration Problem
If you are in the country illegally, own a business, and are facing deportation, you need to consult with an experienced immigration attorney. Business ownership does not have to act against you in a deportation proceeding. Contact our multi-lingual staff to speak to experienced immigration attorney Nathan Wei from Strassburg, Gilmore & Wei, LLP, in Pasadena, California for a consultation.
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