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.
Do we need to send an LCA for H-1B1 Singapore quota?
Yes, you do. E-3 visas for Australia and H-1B1 for Singapore and Chile, all require an LCA.
If I have 3 years of college from the UK and 7 years of professional experience, can they give me E-3 visa? The employer has given me a job offer in USA. All degree and work is in IT systems
If the degree and at least three years of professional experience are in the same field, E-3 should be available.
What kind of problems can employment-based nonimmigrants (H-1, L-1, E-1, E-2, E-3, TN) face during reentry?
I think this question is most relevant for H-1 holders, but other employment-based nonimmigrants may also note the general principles here.
We assisted in responding to an RFE questioning the employer’s educational requirements for an E-3 (Specialty Occupation Workers from Australia) Petition filed for a software developer position.
We assisted in responding to an RFE questioning the employer’s educational requirements for an E-3 (Specialty Occupation Workers from Australia) Petition filed for a software developer position. USCIS sought clarification as to how the position could be a specialty occupation where the employer required a minimum of a bachelor’s degree in business, information systems, computer science or equivalent with related experience.
Release Date
U.S. Citizenship and Immigration Services is updating guidance in the USCIS Policy Manual to address the documentation that certain E and L nonimmigrant spouses may use as evidence of employment authorization based on their nonimmigrant status.
Release Date
U.S. Citizenship and Immigration Services (USCIS) is providing information for nonimmigrant workers whose employment has terminated, either voluntarily or involuntarily. These workers may have several options for remaining in the United States in a period of authorized stay based on existing rules and regulations.
My E3 visa was applied and approved through an employer. I never joined the company or got paid. Are there any legal implications to the company as a result of me not taking employment with the company?
The employer should withdraw your application.
Have any rules changed regarding getting a spouse visa through H1, L1, or O1? Also is traveling on a tourist visa to the US after marriage not ok, with a pending GC application? Finally, does the US have any special agreements with the UK, EU, Singapore, Dubai or Australia for visas that may qualify in this scenario?
Regarding the rules for getting a spouse visa through H-1 L-1 or O-1 nothing has changed.
It is certainly fine traveling with a tourist visa to the US after marriage, if you can convince the government that you are not going to break the laws which means staying in violation of your visa.
Regarding the US having any special agreements, there are only two kinds of visitor visas: regular ones and visa waiver or ESTA visa. There are special visas for example in Australia there is something called an E-3 visa which is very much like an H-1B and more or less a dual intent visa.
I have been laid off by my current employer, with severance paycheck coming at regular pay intervals until mid January-2016. Finding a new employment is taking time. I am on H-1B which first started on October 01, 2013, latest I-797 valid until December 2017.
1. How long do I legally have, before I become unauthorized to stay? What constitutes as unlawful presence?
2. My I-94 admission validity is until October 2016; with no employment, does this mean anything?
3. Before I transition into a new H-1B, can I travel outside and into the country, without a Change of Status? Can I use severance pay checks if asked, for entry purposes?
4. Can I use my severance pay stubs as pay stubs when my next employer applies for new H-1B?
5. I am hesitating to inform my next employer about my termination, thinking that this may impact my hiring decision or my ability to negotiate. But not indicating terminated employment, is it possible that my H1B transfer or new petition may be considered unethical?
6. In your experience, how long does the USCIS take to update a revoked H-1B petition in their systems?
7. If my new employer files for H-1B transfer before the update but with pay stubs older than 30 days, do I have to mandatory leave the country for new H-1B stamping before starting to work?
8. If such is the case, is it best to change to a B-2 status and have my next employer apply for new H-1B? If yes, I would assume that I will be cap exempt until September 30, 2019 plus the days spent on B2; would this be a fair assumption.
9. Can my employer continue to pay severance checks when I am on B-2 status?
10. What happens if my new employer applies for H-1B transfer with severance paychecks, after USCIS has updated their records?
11. In your experience, what gap in unemployment is generally ignored by USCIS when filing for new H-1B or transferring new H-1B?
12. What other words of wisdom do you have for me?
If you get laid off on H-1B there is no grace period. You get laid off today tomorrow you are out of status.
Answer 1. Not even one day. However when you are getting paid can you not make the argument that since you are getting paid you are still maintaining status. That’s a slightly unpredictable argument. It can cut both ways. An example: I did a consultation on garden leave. Garden leave is very common in the financial industry. The employer lets you resign or if they lay you off they will pay you for the couple of months but they don’t want you to join another employer. The idea is you should not be able to take their information which is current and apply to a competitor. So in that case those pay checks are strongly set to keep you in status because it is full salary and they are maintaining control over you and they are not letting you do what you please . And that’s the assumption.
However severance pay… government has at one point said that they don’t consider severance pay to maintenance of status because severance pay seems to be a part of an arrangement were this is not salary you are basically just getting paid sought of a bonus to part company and I have doubts about that . I do not believe that to be a very good legal opinion from the government. I feel as long as my salary amount is getting paid, my deductions are being made, it is does not matter if I have a job or not. So you can certainly argue that. Severance pay doubtful, something like garden leave or regular leave coming out your way is probably ok to maintain status.
Answer 2. Not really. Understand the difference between out of status and unlawful presence. These are two different concepts. If you are on H-1 and you get laid off you are out of status the next day. But you are not unlawfully present until your H-1 is revoked or until your 1-94 expires. For sure unlawful presence begins when 1-94 expires. So unlawful presence and out of status are two different things. You are out of status the following day but you may not be unlawfully present until you’re I-94 expires or revocation of the H-1 occurs. Consequences of being out of status and unlawful presence are quite different. You are out of status that is no bar from getting another H-1B visa, another H-4, L-1, L-2 maybe a problem for F-1 or B-1 visas that have rather weak basis but for H-,4 H-1, L-1, L-2 or even O-1 or E-3 this is not a problem. On the other hand if you are unlawfully present for 180 days you are barred from green card or work visa for three years to ten years if you are unlawfully present for one year. So you can’t come back without a waiver and waivers are limited.
Answer 3. No because you don’t have a job. If you use the same visa to come back in, that could be fraud.
Answer 4. The answer is yes and why not. Government has never made a formal announcement that they will not accept severance as indicative of violation of status. So definitely use them.
Answer 5. That’s between you and your new employer. Immigration law does not require you to inform your new employer about termination by the old employer.
Answer 6. It can be many months but revocation should be retroactive so if your employer sent a revocation request which reaches USCIS today even if they act on it three months down the line they will back date it to today. Revocation is effective on the date revocation request is received.
Answer 7. It is up to USCIS, they might allow you status if the facts of your case is such that they require some sympathetic consideration but normally if you are out of status even one day government is well within its right to refuse to issue you status within the country. In these cases I always advice people to file premium processing soon so you know rather quickly were you stand.
Answer 8. B-2 application to maintain status is acceptable sometimes and also objectionable by the government. You can try, you can tell them that you were laid off unexpectedly and you have enough money to support yourself and you will not work without authorization, and that as soon as you find another employer you will immediately apply for an H-1. When all these things are said and done I think you can make a case for a B-2.
Sometimes government has come back and said we cannot give you a B-2 but as long as you get it filed before your current H-1 expires at least you have the right to stay in the US. You can argue in what is called authorized period of stay. But the problem is this. Something you need to be aware of. Let’s say your status is expired you have filed for B-2 and it is pending now you found a job remember an H-1 transfer within US will be approved only (most cases) if the pending B-2 has been approved in your favor by the time USCIS decides the H-1 transfer. If the case is still pending they will not give you status within USA, they will ask you to go for visa stamping. That is not a problem. You can do that but be mindful of that. If the B-2 is still pending or the B-2 is denied you will have to leave USA. The only time you get H-1B within USA is if by the time they decide your second H-1and your B-2 is already approved in your favor.
You will be cap exempt. That is not a problem because cap just says if you have been approved anytime in the last six years you are not subject to the quota.
Answer 9. Why not. On the one hand we are arguing that’s keeping you in status. On the other government could take the position that means you are violating status and I would say “no” because that is payment for work already done. They are giving me severance not because I am working for them; it’s because I already worked for them and this is either a payment for work already done or part of the arrangement while I was working. In order for employment to be unauthorized there must be a payment or remuneration as well as work. If there is payment without work or work without payment I think that is a good argument that’s not an unauthorized employment.
Answer 11. There is no consistency. I have seen them ignore not even one day they will come back and say no you were out of status for one day, in some situations they have done for two or three months. Most of the times they are not tolerant of this issue at all.
Answer 12. I think B-2is a good idea as long as you understand the implications of a B-2.
Release Date
U.S. Citizenship and Immigration Services today released policy guidance on the eligibility criteria for initial and renewal applications for employment authorization documents (EADs) in compelling circumstances based on existing regulatory requirements at 8 CFR 204.5(p).
For an applicant to be eligible for an initial EAD based on compelling circumstances, they must meet the following eligibility requirements:
Note: For governmental Requests For Evidence (RFEs), we charge extra based upon the complexity of the issue(s).
I'd like to thank Law Offices of Rajiv S. Khanna, for all the assistance with my case. The whole GC process through your offices was a real pleasant experience. As I am mentioning below, it took USCIS 6 years to adjudicate this case, when it was transferred from my former company, but it was possible only because of prompt intervention from your side and finding the correct resolution for this problem. I couldn't say that it happened by itself - it was truly a collaborative effort between Mr. Khanna and all other people of Law Offices of R.S.Khanna, my current company, my former employer, and last but not least, support from my family. Unfortunately, it showed how inefficient the government could be in certain aspects, and only diligence and persistence turned this into a success.
There was a complex RFE for I-485 AOS based on employment 2 years ago, which involved a H1-b denial of extension for former employer, handling status during that period, new H1-b, and travel to home country for visa stamping.
I’d like to thank Mathew Chacko for handling my case and all aspects of it.
I'd like to mention the diligence of Bharathi for answering to my emails almost instantenousely.
I'd like to thank Mr. Iqbal for stepping in and making sure about timely communication with USCIS NSC.
I'd like to thank Leslie and Prernaji for helping with other matters.
If you need your complex case done right, don’t hesitate to contact Mr. Khanna and his wonderful team.