Maintaining Green card

By

Rajiv S. Khanna

July 20th, 2012

15.55 Minutes

I wanted to record a video at the request of a community member who is a senior, a parent of a US citizen.  They come and they visit.  A lot of people are in this situation.  When parents come and visit, are they required to continue to stay here for a certain time?  How does the naturalization process work?  It is a difficult topic because it has many components.

Let me start by giving you an overview of the way maintaining permanent residency in the USA works.  Let’s begin with this flow chart.  What does the law require if you have a green card?  The law requires you to have a permanent home in the USA.  There is no artistic definition of what “permanent home” is.  If you in fact live in the USA, your permanent home is USA.

I’ll get to the specific questions in a minute.  I just want to talk about the law in general.

Your permanent home must be USA.  There is no artistic definition of permanent home.  The simple question is “Where do you live?”  If the answer is, “I live in USA,” you’re okay.  That’s the first step.  But what about taking a trip outside USA?  Is it a one-time trip or infrequent trips or do you go every year for a couple of months or a month?  That’s not a problem.  But what if you are going every year for five months, frequent trips that you repeat every year?  At some point, USCIS can raise a red flag on that.  Because the question is, are you really living in USA or are you really living in your home country?  If there is a pattern, even though the pattern involves travel of less than six months in a 12-month period, but it’s a pattern that has existed for a long time, a few years, they can raise an objection, and they can ask you where you live.

One thing I want to add.  If a green card holder shows up at the US airport, the government has to let them in, even if they are claiming abandonment.  Government has to let them in and they can lift the green card and they can say they are taking away your green card, and you have to report to immigration court on a given date, but it’s not like they can you turn you back at the airport.

Going back to what we were talking about, frequent trips or a pattern of trips.  What if my trip is less than six months?  Usually, there is no problem.  Any year you want to go out for five months or 5 ½ months, it’s not a problem for your green card, not a problem for your naturalization, unless there is a pattern.  If there is a pattern, then they can start creating issues.

What if the trip is less than a year but more than six months?

That can require an explanation at the airport.  There is actually a technical term called “entry.”  A green card holder who has been gone less than six months is not really seeking entry.  They are not considered to be subject to a bunch of technical requirements that people would be if they were gone for six months or more.  

If you are gone for more than one year outside USA without reentry permit, if you don’t have a reentry permit form like I-131 and N-470?  These are two forms that help you preserve your green card.  N-470 helps you preserve your stay outside USA for naturalization if you are engaged in missionary activity, working for the US government, or involved in advancing international trade on behalf of a US company.  It doesn’t apply to many people, especially to parents who are coming or are retired or if they are just coming for a few months in a year.  For them, it doesn’t really apply.  But a reentry permit protects you, not a hundred percent, but to a certain extent against an allegation by the government that you have completely abandoned your permanent residence.  If you are outside USA for more than one year without reentry permit, your green card is gone.

What to do if you have been outside USA for more than one year without reentry permit?

There are only two choices.  You can apply for a returning residence visa through the consulate in your home country.  It is also called SB-1 visa.  There, you have to explain in quite some detail what the genuine reason was for your inability to return to USA within one year.  Then it is discretionary upon the consulate whether they are convinced by the genuineness of your response or not.  If you have been outside USA for more than one year, your green card is gone.  If you can get a returning resident visa (SB-1 visa), then you can come back.  Of course, your son or daughter can apply for a green card again.  If you unfortunately have a green card through a brother or sister, that will take 13 years again.  That’s the way you can get your green card back.

The next question I have been asked a lot.  Yesterday, no less than three people asked me the same question.

What if I surrender my green card?  Will I easily be able to get certain visas like B-1, B-2 (tourist, business), F-1(student), and J-1 (exchange visitors)?

The answer is we don’t know.  On the one hand, the fact that you have given up your green card should be considered the ultimate proof that you don’t want to live in US.  But government can sometimes ignore that and consider that to be actually a negative point that you had a green card and maybe you are trying get back into USA.  Sometimes you can have a problem getting B, F, or J type visa.  Of course, for certain kinds of visas for which immigrant intent or intent to live in USA is not an issue, like H-1, H-4, L-1, L-2 visa, you would not have any problem getting those.

That’s what I wanted to cover in the way of the general law.  Now I want to show what USCIS says about this.  I extracted this from the USCIS website.  USCIS says if you do anything which makes you removable, for example, if you commit a crime, etc., which is not a problem for us.  But then they talk about abandoning permanent residence.  If you move to another country intending to live there permanently, one of the things that USCIS looks for, not just in case of parents, in case of any immigrant who is outside USA, if you leave your job and get another job outside USA, that is a sure indication that you have abandoned your permanent residence in USA.  Also, if your family is living in your home country and not USA, then USCIS can consider that also to be evidence that you have abandoned your permanent residence in the USA.  If you remain outside the USA for more than one year, I’ve already covered that.

If you fail to file an income tax return while living outside US for any period or you declare yourself a non-immigrant on your tax returns, you will lose your green card.  But what if you are not required to file tax returns?  That’s one of the questions the gentleman who sent me an email asked me.  Am I required to file an income tax return?  I don’t know where that observation from USCIS comes from, because, the way I see it, if IRS does not require you to file a tax return, you shouldn’t be filing one.  There is not a problem.  I looked up at the IRS publication P-4588.  The part that I highlighted.  If you have a US green card, if you are a lawful permanent resident, even if you are a US green card holder for only one day in that year, you have to file income taxes, except when your gross income from worldwide sources is less than the amount that requires a tax return to be filed.  If your income is below a certain level, I do not see why you should be required to file a tax return.  In my view, the information on USCIS website is a little misleading.  It does not provide for those cases where a tax return is just not required to be filed.  That’s the way I see it, but I’m no tax expert.  I would readily admit that.  In my view, it is not required.

Now, going through the questions that our respected community member has. 

Can the green card holder travel to their native country for 160 to 170 days?

As I said, as long as you are maintaining your permanent home in USA.  The question is what is a permanent home for somebody who lives a few months here and few months in the home country? Difficult for me to say.  Maybe a separate bedroom for you in your children’s house, if you’re living with a child, maybe your bank account, or if you have your driver’s license.  Anything that a person who is living in USA permanently would do will strengthen your case.  If you have a pattern of going back to your home country for a few months every year and it is 160-170 days, which is just short of 180, it appears to USCIS that maybe you are not really seriously maintaining your green card.  That’s what I would be worried about.  However, if you have other indications that you are actually living permanently in USA.  Again, this is not a term of art.  There isn’t anything here that I can say that is very scientific or artistic or esoteric that I can explain to people.  It is just common sense.  Whatever a normal person does.  By normal, I mean you, for example.  What would you do, sir, if you were living in USA?  What kind of amenities would you create for yourself?  Would you rent your own house?  Buy your own house?  Whatever it is that you would normally do.  If you follow that through, I think you have a fairly good chance of surviving any challenge by the government that you have abandoned your green card.  By the way, for naturalization also, if the green card has been abandoned at any point in time, there can be no naturalization.  

Question #2.  99 percent of parents are dependent on their children.  Is it necessary to file income tax returns?

In my view, no.  If IRS doesn’t require you to file tax returns, I don’t see how USCIS can.  In my view, you should not have to file tax returns, if, under the rules of IRS, you’re not required to.

May you file no taxable income?  I don’t know how to do that.  You have to ask your CPA.

Will it affect for filing the naturalization process?  I haven’t done extensive research on this issue of tax returns, but, just from what I saw in a couple of minutes of review, it didn’t appear to me that a tax return should be required.  If you want to be even more sure, what you can do is contact your Congressman’s office here in USA and just tell them to find out the answer for you definitively.

I am unaware of the source of this requirement.  I don’t see where USCIS says you’ve got to file taxes.  What if the law doesn’t require you to?

So, go to your Congressman’s office.  They might be able to confirm.

I don’t want to spend a whole lot of time trying to resolve this issue, which is, in my view, a marginal issue. 

Third question--Can they continue to hold green card for seven to eight years and, in the ninth year, file for naturalization?

The answer is yes.  As long as you meet the requirements for naturalization and you have not abandoned your green card, you are okay.

That’s pretty much all I have to add to this.  You folks with follow-up questions, go ahead and send us emails or join our community conference calls.  We’ll take it up there.

Thank you, everybody.

This video is available on immigration.com at Requirements for Naturalization in USA (Forms I-131/N-470) 

Impact of I-140 Revocation

13 July 2012

9.05 Mins

I have been meaning to share with you a few things about what we are noticing in the last few months, a whole flurry of I-140 denials, intents to revoke.  It appears that USCIS has gone back and revisited even approved I-140’s.  What happens is, in these cases, an employee who has nothing to do with an employer’s wrongdoing, if there is any wrongdoing in fact, gets stuck.

We represented a company—we’ve done this for three or four companies, but one company in particular comes to mind--they bought out another company—I think 100 or so employees--and I was actually involved in the merger and acquisition, and I suggested that they should escrow some money just to make sure that, if something goes wrong with the immigration compliance, we would have attorneys' fees to fight the problem.  And it did work out because, in fact, there was a problem.  What happened was the guy who sold the company had some issues—apparently, he had several companies—and he had some issues that were not brought to light until this company that hired us started filing their cases.  When they started filing I-140’s, USCIS came up with fraud allegations against the guy who sold the company.  What happens in these cases is that the employees could lose the right to AC21 if the revocation is for fraud.  They could lose their priority date if the revocation is for fraud.  And they could lose their right to extend their H-1’s if the revocation is for fraud. So the employee is the one who gets hurt the most.  When we got retained--there were about 20-25 cases--we went in and argued it out with the government and, happily, all cases were approved.  Each set of circumstances is unique.  Sometimes we can get approvals and sometimes we cannot get approvals.  This narrative doesn’t mean we’re always going to get approvals.  I just want to talk to you guys and explain to you that this is happening.  Don’t think that just because you have an I-140 approval, you’re good.

This morning, as I was going over the content on immigration.com, I noticed a comment on our forums.  This person said this:

180 days on EAD will get over next week and I plan to go on AC21.  Sponsoring employer is being inquired into for some fraud.  No one knows exactly what’s going on.  He’s going over to a new company. 

These are his four questions.  I think it’s relevant to the whole community.  That’s why I’m recording this.

Will this fraud affect my I-485 application?  Will I get an RFE?

First of all, no one can predict whether or not you will get an RFE.  Whether the fraud will affect your I-485 depends on whether or not the I-140 is considered to be fraudulent.  The biggest problem in these cases is because the I-140 is the employer’s application.  The employee does not get a notice, so before you know it, you get a Notice of Revocation of I-485 because, without your knowledge as an employee, the I-140 has been revoked.  This is very unfortunate.  It’s a good idea for those of you who are moving or who want better information or handle on your I-140 to stay in touch with your lawyers.  Make sure they know where you are and make sure they send a copy of the I-140 RFE. In Virginia, I am required by law to allow equal access to both the employer and the employee.  So, if there is an RFE, by ethical obligation, I am required to give a copy to the employee as well.  I am not sure if the Bar would frown upon redacting certain portions that might be very specific to the employer’s tax history, etc.  But normally, we need to give you enough information so that you can protect yourself, so that should be the ethical obligation for all lawyers.  Therefore, you should be able to get some information if there is an I-140 revocation notice or intent to revoke issued by USCIS.  The problem is, if the I-140 gets revoked for fraud, everything goes away--your right to carry forward your priority date, your right to get an  H-1 extension,  your right to do an AC21 successfully--all of that goes away.  However, if the employer is willing to appeal, then while the appeal is pending, you can go ahead and keep getting your H-1 extensions.

Does it matter where you are shifting using AC21?

If this is a question related to geographical location, it does not.

Does a full time contracting offer matter?

You should not have a 1099.  You should be on a W2.

Of course, there is a language in the Yates Memorandum of May 2005, which is the only definitive memo on AC21, which talks about doing an AC21 transfer over to a company you yourself own, but there’s a whole slew of issues connected with that.  Actually, I think I have a lot of information on my blogs on this.

Does a big or a small company matter?

In my view, it does not matter.  Not for AC21 purposes.

I want to add that there was a case recently from a federal court—I have the name of the case in my records-- where the court was quite offended by USCIS coming back after several years and revoking an I-140 that had already been approved.  I think there are some really tricky legal problems with USCIS revoking cases that have long been settled.  Be that as it may, all I can do is sensitize you to the issues and concerns. 

Feel free to bring up whatever you have in our next free community conference call.  Information about our free community conference calls is on the immigration.com website.

Good talking with all of you.  Good luck.

Fraud Allegations in Immigration Law

Recorded on 12th July 2012.

I wanted to talk to you folks today about an issue that has become problematic in the last four or five years - fraud or misrepresentation.  Very often, I see that the government very casually throws in an implication that you have committed a misrepresentation. Actually, they will come out and say that we find misrepresentation.  You will think that this is a normal, ordinary thing, and you might ignore it.  I have seen people get into so much trouble with that fraud or misrepresentation finding.  Let me talk to you about what can happen with that.

First of all, a fraud or misrepresentation finding can lead to criminal prosecution.  You can be prosecuted criminally, if the government so chooses.  I have seen companies being prosecuted for amazingly trivial things. I have seen government start with a 43 count indictment of a company and then walk away with “Failure to report change of address” or something so trivial that it makes you wonder why did the government spends three, four, or five million dollars on  the  prosecution of these kind of cases.  We have provided advice and help to various defense teams all over the country in criminal defense of these kind of cases.  My bottom line approach in these cases is, you’ve got to be extremely careful the moment you see any implication or finding of fraud or misrepresentation.  Speak with counsel or speak with somebody who knows all sides of this picture.  Unfortunately what happens is, if you are only concerned with benefits like an H-1 or an F-1 or an L-1, you probably won’t pay too much attention to ancillary findings other than the fact it has been denied.

Let us talk about what can happen if there is a fraud or misrepresentation finding a little bit more in detail.  The worst thing that can happen is a criminal prosecution. You can go to prison over this, make no mistake, if there is in fact a finding that was not rebutted and then there was a subsequent investigation and more evidence was collected.  I will give you this--criminal prosecution and conviction are not as easy as just throwing out a finding and it is surprising how easily USCIS and other agencies toss around that finding, “Oh, this is misrepresentation.”  The moment I see that word, I know it is a buzzword for us to go all out for this issue and make sure that the government has it on the record what our side of story is.

So, criminal prosecution is not easy but it can happen.  Be careful.  Deportation, removal, exclusion.  What does that mean?  If  you are in USA  on a visa, F-1 , B-1 , H-1 , L-1  any visa, and they find that there is some fraud or misrepresentation in your past or present, the government can initiate deportation, more accurately, removal from USA, and  you can then  be barred from coming back to USA for up to permanently .  And I am saying that again so that you folks understand. Any attempt to procure a visa or immigration benefit, note that “attempt.”  You do not have to have been successful.  Even in an attempt could lead to a permanent bar from entering USA.

 As I recall, there is only one waiver available based upon a family member--immediate family member-- who is a US citizen or permanent resident, but then you have to convince the USCIS that you should be given that waiver and there is extreme and exceptional hardship on your relative.  I recall that is the waiver that is available for these things .Third thing that can happen is denial of sought benefit now or in the future.  So think about this very carefully.  You applied for an H-1. For some reason, they said, “Oh, your degrees are fraudulent,” and I have seen these kind of cases .They thought that the degrees were fraudulent merely because there was no confirmation of certain kinds of things.  For example, you just gave your transcripts.  You did not give your final diploma, and USCIS, after doing some cursory checks, decided that you had not been able to prove your case.  Instead of merely saying that you have not been able to prove your case, they will throw in something very casually saying, “Oh, this is misrepresentation.”

Next thing is, you get stuck when you apply for an H-1 again.  They will pull up the record, and they will say you have a misrepresentation and we cannot give you the benefit.  So, in the future, this can come back and haunt you.  Next thing that can happen is, if there is any misrepresentation finding, let’s say you applied for an H1 transfer and they found fraud they can revoke whatever they have given you.  Now remember that when I say that they find fraud, they do not even, this is very sad, but they will just throw in the finding without considering, and I have seen too many cases like this.  It is awful for the government, and I do not think government. Let me rephrase that. I do not think any government officer individually is IQ challenged, but I think, as an organization, the moment we get into a bureaucracy, we are dealing with very unintelligent bureaucracy.  Without considering the consequences of what they are doing, they will throw in a finding of misrepresentation. So your benefits can be revoked, and as I said earlier, you can get a permanent bar from entering USA.

So the next question is “When does this come up?” Normally, when a fraud or a misrepresentation finding is made, typically, where do they make this finding, they can do it at the consulate during visa application.  I talked with some individuals yesterday, such an easy case and because of a misunderstanding, it’s become a complete problem.  What was the case? Boy and girl meet, they get married. According to South Indian ceremonies, I do not want to say the exact state, but South Indian ceremonies, and the marriage occurs in a temple.  According to the law of the state where the marriage was entered into, until the marriage is registered, it is not valid.  However, when the lady goes for a K-1 interview (K-1 is for fiancées; if you are married you cannot get a K-1), the consul officer grilled her quite thoroughly and decided that she was lying and that she was already married.  Next thing, they put a permanent bar on her.  Now she is under permanent bar. The husband is scrounging around, trying to get some way of getting her back in.  Of course, she will make it back in this particular circumstance, because there is a bunch of factors that go in her favor, but this is a tough case.  And normally, US citizen spouses, actually, unless there is a unique case, I usually tell people do not even hire a lawyer.  Is this is ethically okay?  I think it is. In my judgment, certain cases don’t need a lawyer.  Typically, spouse of a US citizen is such a plain and easy case.  But look at this example and how badly this got messed up.  So now, during a visa application, you’ve got a bar.

What other circumstances?  Remember the Tri Valley University?   A lot of you might remember that.  There were some misrepresentation implications for certain groups of people, not everybody.  They had a lot of problems getting visa stamping again from the consulate.  Second place where it can happen is at the airport.  When you land at the airport, the CBP (Custom and Border Protection) can haul you up there.  I have seen cases where somebody said, “Oh, I am coming in for a visit” and the CBP officer went through the luggage of the individual, and they found letters showing that they were meeting up with some potential employers or they were applying to schools.  Immediately, there is a fraud implication and the next thing is two things can happen.  If they want to be kind, they will let you withdraw your application  for admission and tell you to take the next flight back home without  coming into USA .If they want to throw the book at you, they can ... actually there is a third possibility.  Second is if they levy an exclusion on you, which basically means, we are formally denying you entry into the United States.  Now you are barred for five years from coming back.  But to throw the book at you, they would deny your entry based upon misrepresentation.  Now you have a permanent bar.  So these are not simple matters, ladies and gentlemen.  They can be quite complex.  Please make sure you have competent help if you see any implications or fraud or any chance of fraud in your application.

 Then the next thing is you can have a fraud or misrepresentation come up during benefits application.  In H-1, hiring without a project, the government now considers that to be a fraud.   I do not know how at what point of time hiring somebody without a project became a matter of a fraud.  I still think the jurisprudence-- the law in this area--is very poorly developed and poorly managed.  But who wants to take a chance for the   criminal court? Who wants to go in and spend 800,000 dollars, a million dollars, defending yourself if the government wants to take the stand that this is fraud? So do not hire somebody without a project, employers.  That is now considered to be a fraud.  I have seen indictments that said that specifically.

Inaccurate Job duties.  An H-1 employee is supposed to be a System Administrator, but they are working as a Software Engineer, developing but not doing any administration.  That can be a problem.  Why?  It can be a problem in depressing wages.  System Administrators are typically, though it could be other way around, paid differently that a Software Engineer.  Actually, if you hire somebody at a lower wage and make do to a higher paid job, that is a problem obviously.  I have seen failure to post LCAs at client sites.  If you have employees working at end client sites, I have seen the government try to make a fraud case out of that, because, partly, I think it is justified.  There is something that we have to look at very carefully, because they can say, “Look when you signed the LCA.  You made a representation to the government, ‘ I have posted this application at the end client site.’” That gets quite complicated. So this was H-1.  There are many examples  I could sit here and talk about for hours.  But I just want to give you kind of a flavor of when these things happen and crop up.

Green cards.  I remember a very weird case where, when filing the green card application (the perm application), the employer, who is a fairly good-sized company, signed the application without reading it through.  The 9089 was prepared by lawyers and it was not mentioned that the employee is related to the company president. It was his brother. The next thing is, USCIS denied the I-140, and, on top of that, they said this is misrepresentation, and we are also revoking the labor certification.  When I gave a consultation on the case, I immediately moved in and took certain steps, and I will get to that when I come to the next topic, which is what should you do.  But the point is, government’s contention was that in looking at the ETA 9089 perm application, it says, “I have read this application.”  It specifically says that.  So if you are signing that as an employer or even an employee, you better read and make sure all the material information in there is correct.  I have seen this issue come up a lot during Adjustment of Status.  Where do they come up the most?  Well, mostly lately, it has come up when government says, “Look, you are on H1 and you are authorized to work for an area in California, but you worked in Chicago.”  Here is the employee who is stuck with the fact that they cannot do anything about where the LCA was filed by the employer, but now they have got a fraud implication on their record.  Well, we deal with it, we make matters clear.  We explain the law to the government. But it is still quite hasslesome and bothersome to be in that situation.  Anyhow, go ahead and be careful and watch those whenever you see fraud or misrepresentation come up, just make sure it has been taken care of and properly addressed.

When else during Adjustment of Status?  G-325-A.  When you file the G-325-A, which is the biographical statement, government can take--I have a case actually, in which the employee neglected to mention two or three jobs that they had done illegally.  It was definitely an oversight, no question about that, because he disclosed other things.  And if he were going to try to deceive the government, he would have done a lot more than merely omit those two jobs.  So that became a big problem.  They are trying to bar him permanently.  We have a MTR (Motion to Rehear) pending against that.  During naturalization, there is an interesting case--interesting for me, but sad for the people who are involved.  A gentleman ran a company—again, a relatively good-sized company--and somewhere about six or seven years ago, they had submitted a letter from an end client in support of an H1, which the government considered to be fraudulent.  They said they could not verify the letter, and they made, I do not remember if they made an express finding a fraud.  But they did say that they were not able to verify, so there is doubt as to the veracity of the document.  Doubt as to the veracity.  Okay, that does not alert you.   You do not think, “Well, they are not saying they find fraud, but that is what they are saying.  Okay, six or seven years later, they have a lot of approvals for their H-1  after that green card with no problem.  Employees have been doing fine, and the issue never came up.  This gentleman applies for naturalization.  Guess what?  Barred from naturalization.  The government may go after his green card.  Why?  There is a fraud. So this issue comes up in naturalization.

It can come up in courts.  Sometimes you are there for unrelated proceedings, for example divorce.  Next thing is, there is a misrepresentation element or an element of fraud that you have not considered, and you are stuck.  The worst case that I have seen come up , which was very unfair and sad is, when an employee on H1 fell out of status for a month or so.  Under the law, if you are out of status for even one day, by operation of law, your visa is considered to be cancelled.  So the Visa stamp that you have on your passport is cancelled.  Very few people know this law.  Of course, as they say, ignorance of law is no excuse but when the law is so complex and so difficult to keep track of, who can know when something has been voided or made invalid by operation of law? Nobody can keep track of that.  It is something that happens quietly, perniciously in the background.  So, when this gentleman applied for Adjustment of Status, his 485, government said, “Your last entry into USA was fraudulent  because you used the VISA that was void by operation of law.”  I do not think he is going to have much trouble ultimately, but he is definitely being dragged around for misrepresentation.  See, I do not mean to imply that the government is always unreasonable, but they can be.  Individual officers can be sometimes be very unreasonable and overzealous in what they feel is the right application of the law. 

What should you do?  Look at the left hand side of the screen.  Clarify the record even if you lose the case. You want to make sure your story, your side of the story, is on the record.  I do not care if you lose the case.  So what did we do in that? Remember I talked about the president who signed the 9089 not realizing that he had signed saying that they were not related to each other, the beneficiary and he were brothers.  So what we did was, we immediately filed an appeal, and the appeal got dismissed, but we told our entire story.  We explained what happened.  We went through the entire document trail.  We submitted documents and I think even though the company may not realize it, by doing that, they have now put their own story on the record.  So tomorrow, if this issue ever comes up, whoever at USCIS is reviewing his case, they can see both sides of the picture before they deny any future benefits like naturalization.  Now we have both sides of the stories there. Appeal it, file a motion to reopen, even file a lawsuit.  All of these things you can do.

And what else can you do? If nothing else, send out a letter.  Make it clear what the record was.  I believe that should at least provide you a modicum of good defense .Good luck, folks, and it is good talking with you.  I think I want to do a video next time about these I-140 revocations. I am seeing I-140 revocations coming up after 8-10 years of having been approved.  Highly unfair.  Let me get into that next time.  Good talking with you.

Substantial transcription: 

7th July 2012 at 05:16 PM

9.59 Minutes

What do we do when our visa gets denied under section 214(b) of the Immigration and Nationality Act?   Basically, this means that if the consulate doesn’t believe you are going to come back, they deny the visa, saying that you have an immigrant intent which you have not been able to rebut.   So the idea is whenever somebody goes for a visa stamping, they actually are presumed to have immigrant intent unless they prove otherwise.   Of all the visas A, B, C, D, E, F, G, H all the way to V, some visas are immune to this problem.

What are the visas that are immune?

H-1 as well as H-4, L-1 as well as L-2, and O-1 and O-1 derivative visas are immune by law almost.  H and L are clearly immune by law and O by implication.  With these visas, if you have a green card going, the consulate is not going to deny your visa for that reason.

On the other hand, there are notorious visas that are very susceptible to this problem:

B-1, B-2, F-1 as well as F-2 (which are for students), and J-1 as well as J-2 are susceptible.  A lot of physicians on J-1’s have had a visa denial on 214(b).

TN visa holders strictly not going for visa stamping but can be stopped at the border if their green card has been filed.  So bear in mind that when TN holders apply for a green card, they should be careful about this particular factor.

The biggest problem with 214(b) is it is extremely difficult to fight it.  I have recently taken a case in which an F visa was denied on 214(b), and I think we have a fighting chance because the visa applicant has come to the U.S. many times and she has left within her time permitted.  So she’s been a frequent traveler on a B visa.  Her F visa denial is extremely unjustified, in my opinion.

Let me just very quickly go through the visa alphabets.

A visa (diplomats) will have no problem.  They have no issues of a green card being denied.

B visa will have a problem.

C, D, and E visas will usually not have a problem.

The only thing you have to establish for E-3, especially for Australians (E-3 is kind of equivalent of H-1), is that you do have an intention to come back but not to the same degree.   In other words, if you have a home in Australia, the degree of proof is not very high so it is very easy to meet that degree of proof.

G visa is ok.

H visa is ok.

By the way, H-2B visas can have a major problem with immigrant intent.  These are people who are coming to U.S. for to perform skilled labor.

I, which is international journalists/media representatives, may or may not be ok.

J visa will definitely be a problem.

K -1 and K-3 are no problem because they are fiancés or spouses of U.S. citizens and are obviously meant to go into green card.

L visa is no problem.

M, which is folks who are doing vocational training, can have this problem.

P visa (performers, athletes, etc.) can have a problem but usually won’t.

Q visa (exchange visitors) can have a problem.

R visa usually won’t.

 S, T, and U visas won’t usually have a problem because they are done within the USA and are usually either victims of crime or people who are assisting in criminal investigations.

So what do you do if you get a 214(b) denial?

Normally there isn’t much we can do but, if you have been to USA before or else there is something unique in your case, we can ask the consulate to reconsider and if they are not willing and able, then we can ask the visa office in Washington, D.C. to intervene.  You can also contact your family or employer in the U.S. to contact the local Congressmen to seek their intervention.  This typically is not helpful but you can try.  If anybody from the bar or a lawyer tells you he or she can fix it, be mindful because they may not be able to.  Especially be careful when you talk with lawyers in your own country.  This makes me very nervous because we have had some cases where local lawyers in other countries did some strange stuff.  They had some hook ups with consulates and ultimately got caught.

The biggest problem is with fraud or misrepresentation.  If you make a misrepresentation in attempting to get any immigration benefit, you can be barred from entering USA forever.

Going back to 214(b) denials, you can ask the consulate to reconsider.  Reapply if you have a case that begs for a special consideration, like you’ve been to the U.S. many times.  For example, one of my friends asked me that, if his girlfriend is refused a B visa, is it okay to bring the lady in on a K-1 (fiancé visa)?  My take is do not use the fiancé visa in lieu of B-1 or B-2 visa, because if you do not have the intention to get married, the government can consider it to be fraud.  So make sure you want to get married within 90 days after they enter the U.S.

One more point -- there is a legal fiction created in U.S. immigration law about ties to your home country that says you can overcome 214(b) denial if you have ties to your home country.  That in my mind is a legal fiction.  To demonstrate ties is very difficult.  Of course, if you have family in your home country, that’s a good example of ties but to say you have property, but property can be sold, so I don’t think that’s really ties.  Having business is also not really a tie as a business can be sold.  Hence demonstrating ties to your home country is usually a difficult thing to do.

This issue has come up several times recently.  Feel free to ask me specific questions on the website, in a forum, or on a community conference call.