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.

Deferred Action for the "Dreamers" -- Youthful Illegal Aliens

17th June 2012 at 07:20 PM

I have received a lot of questions from people on the new policy announced by the White House on 15 June, 2012, what they refer to as “Reform for the Dreamers.” Essentially, what is being addressed is those people who are below the age of 30, came into the US before they were 16, and have been here for five years.  So the idea is the people who are illegally here and were here at a relatively young age, we want to protect.

And the policy as announced by the President is motivated by the fact that these folks have come here, they’ve studied hard, they’ve worked hard, and they came not because they wanted to come, but because they came as a child, and they had no control over where they were.

Let me make one thing very clear at the outset.  This program does nothing for people who are legal residents or immigrants or temporary residents of the United States.  It does nothing if you are legally in the USA and your children are here legally in the USA, it does nothing for you.  Stop listening if that's what you are interested in.  But if you want to know more about the law and how it is shaping up, I will tell you more as best as I can based upon our knowledge as it exists today.

So the idea here was that you want to protect those people who came here without their own volition, without their own desire.  They are here because their parents are here.  And the President said that he wanted to step in and take care of these folks because this is not a new effort.  It was started as early as six years ago.  I know it because we were very actively involved at one point in this process as well.

The President talks about six years ago, the unlikely trio John McCain, Ted Kennedy, and President Bush had come together to champion this so called “Dream Act,” but, unfortunately, according to the President, the Republicans blocked it in the Senate.  So the idea here is that the President wanted to step in and do whatever he could without involvement of Congress.  So remember, Congress passes laws, whereas the Executive Branch of government, which is the President and all the agencies underneath the President, including DHS, USCIS, etc., all of them implement and execute the laws.  When you are implementing something or executing something, remember that your authority is limited.  You cannot create new rights.  You cannot create more laws.  Because of that, the President made it clear and USCIS made it clear that we are not creating any permanent entitlement.

What we are going to do is this:  if you meet the criteria, we will give you temporary residence in USA for two years.  It carries no other rights except the right to work.  The details would be implemented within 60 days, so let me get to that document.  This is probably the most informative document to date.  These are the Frequently Asked Questions that the government has put out.

The duration of the deferred action is for a period of two years, subject to renewal.

What does deferred action basically mean?  It means, “We will not deport you, we will not remove you, and we will not send you outside USA.”  That does not create any new rights.  It does not make you a permanent resident.  It does not make you even a legal non-immigrant, like an H-4 or E-2 visa holder.  It does not give you anything substantive.  It basically gives you the right not to be deported until government changes its mind, and they can change their mind right away.  There is nothing in law that says they cannot change their mind.  The use of prosecutorial discretion confers no substantive right.

It does not make you legal in the USA.  They want to begin implementing the process within sixty days of June 15, and the rights are available immediately, but they will start orderly implementation within 60 days.

Then they talk about who is eligible.  The individual must have come to the USA under the age of sixteen; must have been here five years before the date of this memorandum (which is June 15th, 2012); must currently be in school or have graduated from high school or have obtained a general education development certificate (GED) or be an honorably discharged veteran of the Coast Guard or Armed Forces of the US; and must have not been convicted of felony offense.  No felony.  If there is even one felony, you can't qualify for this.  Also, you can’t be convicted of a significant misdemeanor offense, and they define what significant misdemeanor offense means.  Also, you can’t be convicted of multiple misdemeanor offenses or otherwise pose a threat to national security or public safety.  So if you have a criminal background or have a history of being a threat to national or public safety, you will have a problem.  And you must not be above the age of thirty.

Then they talk about what is deferred action.  They define it.  It basically means, “We will not send you out.”  It does not mean whatever unlawful presence you have already accrued gets washed away.  What does that mean?  In a very basic manner, once your I-94 expires or you enter US without inspection, if you come through the border without being inspected in other words (for example, a coyote brought you to USA), the fact that you are getting deferred action now does not mean all your past problems are washed away.  So be very careful.  Do not think that, because unlawful presence of one year will bar you from getting any kind of status in USA for ten years unless you qualify for a very narrowly tailored waiver.  It is very difficult to get a waiver on something like that.  Just because you are getting a differed action now does not mean that all the past “sins” and infractions have been washed away.  They are still there.  Those violations are not going to go away.

You will receive employment authorization and remember that deferred action can be terminated anytime.  Then they talk about how they are going to implement them.  Individuals who are not in removal proceedings (meaning you are in the immigration court right now), some people who are in removal proceedings will be treated differently.  One classification is individuals who are not in removal proceedings or who have already been ordered to be removed (meaning their proceedings are over and the judge has said, “Okay.  You need to be removed.  You need to be sent away.”)  Those people will be treated little bit differently.  Individuals who are still in proceedings will be treated differently.  So they have these various methodologies that they are going to come out with.  We still do not know all the details yet, but they will be treating these people differently, but all of these folks will have the right to get their work authorization and deferred action as long as they meet those four to five criteria that I have mentioned earlier.

Another thing that the government mentioned was that the people who they have already identified, they are automatically giving them deferred action without having to apply.  So basically the government is acting upon its own accord.  There is a lot of information in this Frequently Asked Questions document.  I will attach that document to this little conversation that I have here.

Then they talk about what kind of documentation you need to show that you came to USA before the age of 16, that you have resided here for five years, and that you were physically present in the US as of June 15, 2012.  They said provide us financial records, medical records, school records, employment records, military records, but that is not the only thing.  You can give anything that you think tends to prove your presence in the USA that will help you.

So now this where they talk about what they consider a significant misdemeanor offense.  First of all, a felony is anything that is punishable by more than one year in prison, according to this definition.  So anything that is punishable by more than one year in prison, if you have been convicted of that, you do not qualify.  You also can’t have a significant misdemeanor and they define it here.  A significant misdemeanor is a federal, state, or local criminal offense punishable by no more than one year of imprisonment and, even if no imprisonment-- that is the key point-- even if there is no imprisonment-- but involves violence, threat, assault, domestic violence, sexual abuse or exploitation, burglary, larceny, fraud, driving under the influence of alcohol or drugs, obstruction of justice, bribery, or unlawful flight.

So there is a whole list of things that, if you have been convicted of, even if they were a misdemeanor, you will not qualify.  And if you have three misdemeanors, you will not qualify at all.   And they talk about what threat to public safety is.  It is, for example, gang membership, participation in criminal activities, or participation in activities that threaten the Unites States. 

What if my case is not approved?  Can I ask for an appeal?  The answer is no.  You cannot get an appeal, but they will set up a public procedure where you can ask the supervisor of the case officer who decided your case to look at the case again and decide.

Do my dependents or immediate relatives get benefit?  No.  This is only for you, the person who qualifies.  

Can I travel outside United States?  The answer is, “We have not decided that yet.”  I will be very careful with that, because, if you are subject to unlawful presence and you have been here over a year under unlawful presence, travel outside USA could bar you for ten years.

I hope this gives you some information on what you need to do and what this is all about.  Feel free to post a message here if something is not clear.

Good luck, folks.

Hello, everyone.  This is Rajiv S. Khanna for the Law Offices of Rajiv S. Khanna, P.C, immigration.com.  We are discussing with some of our clients the issue of what to do now that the H-1 quota has expired.  What are my options?

Well we can look at the options two ways or three ways.  Actually, there are several variables.

Variable one:  Can I continue to work?  The answer is yes, if you have the STEM extension option.  In this case, we are working towards 17 months of the STEM extension anyway.

What is the STEM extension?

Some people who are F-1 OPT can get further 17 months of OPT if they are in the discipline of Science, Technology, Engineering or Mathematics (STEM).  Any one of these disciplines, if you are in STEM, you can get a further 17-month extension.  

So can you continue to work?  One way is STEM extension.  If that is not an option, some people go back to school and they get something called CPT (Curricular Practical Training).  That is an option that I don’t advise.  Why?  Because this option has come under the gun.  USCIS has become very suspicious of it because the regulations say, if somebody wants to get a CPT by going back to school in the first semester itself, then the curricular practical training, the CPT, must be integrally related to the education.  In other words, you cannot really get a good education without that CPT and because of the “misuse” or the perceived misuse that government sees, they have come down hard upon universities that have been giving CPTs too liberally.  So CPT has become a suspect option, unless you are going to join a university that is well-recognized, a good university, or a good school that is fully accredited.  And I actually have a video on our website, our blog, on how to see if the school is accredited.  (http://www.immigration.com/media/eb2-green-card/accreditation-distance-…)

So 17-month STEM extension, CPT not recommended, but possible.  You can, of course, go back to school and stay until you are ready to file for the H-1 again.  If you have an option, for example, if your spouse is on H-1, you can convert to H-4, or L-2 if your spouse is on L-1.  That would be another option.  One option is to go back to your home country if the work can be outsourced to you.  It is perfectly legal for you to work for your employer from your home country and they can pay you either as an independent contractor or on a project basis or even as an employee.  You can work out the details with your CPAs, but that is certainly a possibility.

Now the last option that I see is there is a very fine distinction between what jobs are quota and what jobs are quota-exempt.  The interesting thing is the way that the government looks at it is even though the employer is a quota employer, but if the job is quota-exempt, you are not subject to the quota.  Let’s take an example of a quota-exempt job.  If you are working for a university in a research position or any academic position, you are quota-exempt.  But what if your employer places you to work in a university research facility?  Because the job is quota-exempt, that H-1 will be quota-exempt, even though your employer is a quota employer.  So look for a job that is quota-exempt.  That’s another possibility.

Those are the options as I see them.

Question--How do they go about applying for a STEM extension?

The way it works is the company that you are working for has to agree to be e-verify compliant.  That means they open an account with the government office for being an e-verify company.  You sign a bunch of contracts with them and you say every person that we hire, we will run them through the e-verify program, which is basically a way of ensuring that they have proper authorization to work in the US.  For larger companies, I would probably be reluctant to go e-verify, especially if you are a multi side company that has its own problems, so we need to assess that very carefully.  For smaller companies and one-side companies, it’s much easier to go through e-verify.  It’s not a problem.  E-verify basically involves agreeing to go through verification of every employee you hire from now on.  You have put them on the e-verify database. 

To get the STEM extension, they don’t have to go back to school.  They notify the school office, and the school issues new paperwork based on their existing paperwork.  They don’t have to go back to school.

If you already have your STEM extension, after that expires, you could take classes for CPT, work from your home country, try to convert to a spousal visa, find a quota-exempt job, or wait for next year’s quota.

One more question that people have asked me.  Is it okay for me to volunteer?  What if I want to work, but I don’t want to get paid for it?  I don’t want to lose all this experience that I have.

The answer is that that’s risky.  However, the way it works is, if the person volunteers, let’s assume they’re on H-4.  They work, but they neither expect to be paid nor do they have any benefits coming to them.  Health insurance, for example.  Then, it’s okay to volunteer.

Can You Do Business In the USA on Your Current Visa?

Hello, everyone.  This is Rajiv S. Khanna for the Law Offices of Rajiv S. Khanna, P.C, immigration.com. 

You can post comments and questions on immigration.com.  I usually respond within three or four days, sometimes a week.  I’m going to answer one of the questions someone asked us on immigration.com. 

Can I start a business on an H-1 visa?

The bottom line is yes, as long as you are in a situation where, even though you are working for your own company, somebody in the company can file.  It must be a true employer/employee relationship.  How does that work?  What if you have a board of directors or if you have a CEO to whom you report, even though you are a stockholder or maybe even you even have majority of stock in the company, but somebody in the company can file, you’re okay.  USCIS has indicated that is their present stance.  You must have an employer/employee relationship if you want to be able to start your own business on H-1.

In addition to that, remember H-1 is for a specific employer.  So if you want to have a concurrent employment with your own company or you want to change companies and go over full time to your own company, you can do that, but you have to process a H-1, either a concurrent H-1 or a successive H-1.  One of the things you need to remember is, if you own majority stock in the company, or if you have influence over the management of the company, it will be very difficult if not impossible for you to do a Green Card through PERM through your own company.

Where does that leave us?  There’s a whole history behind this H-1.  I won’t go through the history.  USCIS has gone up and down.  “You can do it.”  “You cannot do it.”  There is a whole history behind this.  But the bottom line today is, you can do it, but it definitely requires some in-depth consulting with a lawyer.  Make sure you are not getting into a situation which is going to hurt your stance.

Here is another question I get asked. 

I have an EAD through 485.  Can I now start my business?

Sure.  On the side, you can, as long as you don’t leave your current job.  But, remember, you will then no longer be on H-1.  You will be on EAD if you start working for your own company.

I actually have a whole list of visas.

Can I do business on E-2?

Yes, of course.  E-2 visas, which are treaty investor visas, are meant to do business.  E-1, treaty trader, the same thing.  But only a few countries in the world have a treaty with the United States to do E-1/E-2 visas, so you have to make sure that the country you come from has that.

If I’m here on a tourist visa or a B-1, which is called a business visa, can I do business?

The answer is, you can negotiate contracts, you can shake hands, and you can even set up a company, but, if you actively participate in business, you are violating the terms of B visa.  B-1, which is the business visa, is a misnomer.  You start thinking, I have business visa; maybe I can start a business.  But you can’t do it on B-1.

Can I start a business on F-1 visa?

Of course not.  You are a student.

What if I am on my optional practical training and I have my F-1 EAD? 

Maybe, but only for the time you have the EAD.  Again, that is something to be explored.  Don’t just jump into it.  Make sure you understand the ramifications of what you’re doing.

What about on a G visa?

On G-4, of course, the primary applicant of G-4 is engaged in working for a multinational organization such as the World Bank or the IMF.  They cannot do business, but what about their dependents?  I haven’t looked into it specifically.  I suspect that they can, because they do get an EAD and that EAD is not confined to a specific purpose, but I would have to check on that.  I’m just speaking off the top of my head.  I was primarily answering the H-1 question, but I want to share with you what I know.  So, G-4, probably yes. 

H-4?  Absolutely not. 

H-1?  As long as you can be fired. 

I visa?  No. 

J-2 visa?  Yes, as long as you have an EAD.  

K visa?  K visas are all work authorized, so, yes, you can do business. 

L-1?  No, because you’re working for a company.   

L-2?  Yes, because you get an EAD. 

M Visa?  No.

I went through the whole gamut, just to give you a rough idea; more so, to sensitize you to who can and who cannot do business.

Thank you for listening.