Category Archives: The Legal Immigrant – Immigration Blog

U.S. Immigration Risks in Claiming F-1 OPT or H-1B Status When There is No Real Job

Are you an F-1 student or H-1B worker who claimed to work for a U.S company when there was no actual job?

Did the company issue W2s or pay stubs showing you were paid when you really were not?

If you seek to maintain F-1 OPT, F-1 STEM OPT or H-1B status through employment – when there is no real job – you run the risk of being found inadmissible under INA 212(a)(6)(C)(i). This law states that you have a lifetime bar if you engage in fraud or willful misrepresentation of a material fact to obtain a U.S. immigration benefit.

Being inadmissible disqualifies you from getting a change or extension of status, a new visa, or lawful entry to the United States. While a 212(d)(3) nonimmigrant waiver or I-601/INA 212(i) immigrant waiver might solve the issue, it doesn’t work in every case. It’s best to avoid a fraud/misrepresentation charge altogether.

Episode 11 of The Legal Immigrant podcast covers:

1) The different contexts in which U.S. Customs & Border Protection, USCIS and U.S. Embassies and Consulates can make the 212(a)(6)(C)(i) charge 

2) F-1 OPT and STEM OPT rules to follow

  • Time restrictions for submitting Form I-765, application for employment authorization
  • Unemployment grace period of 90 days for F-1 OPT and an additional 60 days for F-1 STEM OPT (i.e. total of 150 days during entire post-completion OPT period)
  • F-1 OPT and F-1 STEM OPT must involve at least 20 hours of work related to field of study
  • F-1 may include a paid job, a paid internship, an unpaid internship, volunteer work, contract work, agency work, or self-employment
  • F-1 STEM OPT must include paid employment with a company that is enrolled in the E-Verify program

3) Immigration fraud investigations and related problems

  • Many F-1 and H-1B visa holders, particularly from China, get their visas revoked or denied or are refused entry to the United States because they had listed Findream or Sinocontech to receive work authorization
  • F-1 and H-1B visa holders, most from India, face U.S. immigration and visa problems if they listed companies like Integra Technologies LLC, AZTech Technologies, Andwill, Wireclass or Tellon Trading to obtain OPT, STEM OPT or other work permit
  • Problems include refusal of entry to the US, visa denials, visa revocations, and denials of change/extension of status requests. In some cases, a 212(a)(6)(C)(i) charge is made.

4) 3 key indicators that the petitioner or employer may be flagged 

  • Does the company require you to pay a training fee, including before it issues the job offer letter or Form I-983 training plan? 
  • Does the company fail to assign roles and responsibilities as stated in the job offer letter, Form I-983 for STEM OPT, or Form I-129 Petition for H-1B? 
  • Does the company offer employment verification, pay stubs and W2s when there was actually no real work or no pay received for an F-1 STEM OPT or H-1B position?

5) The longer you are associated with a flagged company, the more U.S. immigration risks and visa problems you will have

  • As soon as you find out there’s no real job, move on quickly. 
  • You might be tempted to use fake employment to maintain status or stop the accrual of unlawful presence. But you run the risk of not only falling out of status, but also being charged with a lifetime inadmissibility bar under INA 212(a)(6)(C)(i). 
  • US immigration agencies are less forgiving when it comes to a fraud or misrepresentation charge because it means you’ve been found to have lied to the U.S. government to gain an immigration benefit. 

Subscribe to The Legal Immigrant podcast at Apple Podcasts or other apps.

If you prefer to read, download transcript of episode 11.

For more information, see:

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The Legal Immigrant podcast and this article provide general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for your situation. The sharing or receipt of this information does not create an attorney-client relationship.

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B-1 Visitor Visa: Traveling to the U.S. for Business

Is the B-1/B-2 the right visa to enter the U.S. to participate in a business meeting? Attend a conference or convention? Negotiate a contract?

Yes on the B-1, but no on a B-2 only.

If you have a combination B-1/B-2 visa, you should inform the U.S customs officer of the main purpose of your visit. Get admitted in the right classification. The B-1 is more flexible than the B-2 classification. You may engage in business activities and tourism with a B-1. But the B-2 is for tourism and social visits only, with very limited exceptions in special circumstances.

The B-1 visa or combined B-1/B-2 visa is for nonimmigrants who seek to enter the U.S. temporarily for business reasons and tourism. To get the visa or gain entry to the U.S. on this visa, you need to show you will participate in only permitted activities.

Episode 10 of The Legal Immigrant podcast summarizes:

(A) What you can do in the U.S. as a B-1 visitor – 

1) Business activities of a commercial nature. Examples:

  • engage in commercial translations
  • negotiate a contract
  • participate in business meetings
  • litigate, including to participate in a lawsuit, take a claim to court, or settle an estate
  • attend a conference
  • do independent research

2) Professional activities that do not lead to compensation or employment in the United States. Examples:

  • ministers of religion and missionaries doing missionary work
  • volunteers participating in a recognized voluntary service program
  • professional athletes competing in a tournament or sporting event of international dimension
  • investors seeking investments in U.S. 

3) Limited activities that do not amount to substantive performance of work. Examples:

  • commercial or industrial workers needed to install, service or repair equipment as required by contract of sale
  • certain foreign airline employees in an executive, supervisory or highly technical role who travel to the U.S. to join an aircraft for onward international flight
  • third/fourth-year medical students pursuing medical clerkship at U.S. medical school’s hospital (without remuneration) as part of a foreign medical school degree

(B) U.S. immigration problems that might arise if you do remote work (including work for a foreign employer) while you are in the U.S. as a visitor 

  • the connection between U.S. tax law and U.S. immigration law
  • the risk of being found to have violated status if you perform activities that are not entirely consistent with the terms and conditions of the visa

(C) The eligibility requirements for the visitor visa

  • maintain a residence abroad that you do not intend to abandon
  • intend to stay in the U.S. for a specific, limited period
  • seek entry solely to engage in legitimate activities permitted on the visa
  • have no U.S. immigration violations or criminal offenses that make you inadmissible  or otherwise qualify for a waiver of inadmissibility

While the B-1 visa and status allow a wider range of visitor activities in the U.S. — compared to the B-2 visa — it has its limits.

A visitor visa holder is not guaranteed admission to the U.S. for temporary stays. At the U.S. port of entry, the U.S. Customs & Border Protection may issue an expedited removal order if it determines the person intends to engage in activities outside the purpose of the visitor visa, or has previously violated status during earlier visits.

The expedited removal order itself creates a 5-year bar to re-entry under INA 212(a)(9)(A). If the CBP also charges the person with fraud or willful misrepresentation of material fact to obtain a visa or other U.S. immigration benefit, this leads to a permanent bar under INA 212(a)(6)(C)(i).

To request a consultation on visitor visa problems, you may submit an inquiry by email at info@dyanwilliamslaw.com or by online message at www.dyanwilliamslaw.com

For more information, see:

Dyan Williams, Esq.
info@dyanwilliamslaw.com
www.dyanwilliamslaw.com

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The Legal Immigrant podcast and this article provide general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for your situation. The sharing or receipt of this information does not create an attorney-client relationship.

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2019 Public Charge Rule Gets Tossed; 1999 Rule is Back

On March 9, 2021 the Public Charge rule under the prior Trump Administration was vacated and removed. USCIS and the U.S. Department of State will apply the old 1999 rule to determine whether a person is likely to become a public charge on the U.S. government.

Under section 212(a)(4) of the Immigration and Nationality Act (INA), a person seeking entry to the U.S. on a visa or applying for permanent residence is inadmissible if, “at the time of application for admission or adjustment of status, is likely at any time to become a public charge.” Applicants will not be granted entry or a green card if they are deemed inadmissible under section 212(a)(4).

Section 212(a)(4) does not define “public charge.” But in 1999, USCIS and DOS guidelines began to define it to mean a person who is or is likely to become “primarily dependent” on the U.S. government for subsistence, as shown by the receipt of “public cash assistance for income maintenance” or “institutionalization for long-term care at government expense.”

2019 Public Charge Rule Implemented Under Prior Trump Administration

The prior Trump Administration introduced the new Final Rule on August 14, 2019. It amended how U.S. immigration agencies applied section 212(a)(4). The 2019 Rule gave USCIS more discretionary power to deny Form I-485 green card requests, and Form I-129 and Form I-539 applications to change status or extend status, on the public charge ground. The rule was set to take effect on October 15, 2019, i.e. 60 days after its publication. But federal court litigation delayed the implementation of the rule to February 24, 2020.

For some time, USCIS was applying the 2019 Public Charge rule and requiring green card applicants to submit a Form I-944, Declaration of Self-Sufficiency, with financial documentation, such as a credit score report, proof of health insurance, proof of assets and resources and proof of liabilities and debts.  

Episode 9 of The Legal Immigrant podcast summarizes the beginning and end of the 2019 Public Charge Rule:

(1) Federal court challenges to implementation of the 2019 Public Charge Rule

On November 2, 2020, the U.S. District Court for the Northern District of Illinois vacated the 2019 Public Charge rule nationwide. That decision was stayed by the U.S. Court of Appeals for the Seventh Circuit. On March 9, 2021, the Seventh Circuit lifted its stay and the U.S. District Court vacating the 2019 Public Charge Rule went into effect.

As a result, USCIS immediately stopped applying the Public Charge Final Rule to all pending applications and petitions that would have been subject to that rule. USCIS agreed to apply the 1999 Interim Field Guidance, which was in place before the Public Charge Final Rule was implemented, when adjudicating any green card applications or application for change/extension of status that was pending or received on or after March 9, 2021. 

(2) The 3 key changes under the 2019 Public Charge Rule 

(a) Expanded the definition of “public benefits”  to include previously excluded programs, such as Federally funded Medicaid with certain exclusion; Supplemental Nutrition and Assistance Program (SNAP), formerly called food stamps; Section 8 Housing Choice Voucher Program; Section 8 Project-Based Rental Assistance; and Public Housing under section 9 the Housing Act of 1937, 42 U.S.C. 1437 et seq.

(b) Deemed applicants to be a public charge if they received one or more public benefits for more than 12 months in the aggregate within any 36-month period. 

(c) Applied the totality of the circumstances test based on age, health, family status, assets, resources, financial status, education, and skills.  One heavily weighted negative factor was having received or been approved to receive one or more public benefits for more than 12 months in total within the 36-month period prior to applying for admission to the U.S., a green card, or a status change or extension.

The shift toward the weighing of positive factors and negative factors meant the Form I-864, Affidavit of Support, was no longer relied on as sufficient proof – by itself – to demonstrate the applicant would not become a public charge in immigration cases that require the Affidavit of Support.

(3) The decision to stop applying the Rule under the current Biden Administration

A federal case challenging the 2019 Public Charge rule was dismissed by the U.S. Supreme Court upon the Biden Administration’s request. The new Administration has already stated it will not continue to apply the 2019 rule and will return to the 1999 rule. 

Because the Biden Administration has decided to not defend the rule, the Department of Justice will no longer pursue appellate review of judicial decisions invalidating or stopping enforcement of the 2019 public charge rule. There is no more need for advocacy groups to continue with this challenge in court. 

(4) How the decision to return to the 1999 Rule affects applications and petitions

On or after March 9, 2021, applicants and petitioners should not provide information required solely by the 2019 Public Charge Final Rule. 

For example, applicants for adjustment to permanent residence should not provide the Form I-944, Declaration of Self-Sufficiency, or any evidence or documentation required on that form with their Form I-485. Applicants and petitioners for extension of nonimmigrant stay and change of nonimmigrant status should not provide information related to the receipt of public benefits on Form I-129 (Part 6), Form I-129CW (Part 6), Form I-539 (Part 5), and Form I-539A (Part 3).

(5) What is still required to meet the INA 212(4)(a) requirements

Even though the 2019 Public Charge Rule has been tossed, statutory law regarding public charge inadmissibility is still in effect. It applies to:

(a) Applicants for immigrant visas and green cards (unless Congress has exempted them from this ground). Congress has carved out certain exemptions to the public charge ground of inadmissibility as follows:

  • Refugees;
  • Asylees;
  • Certain T and U nonimmigrant visa applicants (human trafficking and certain crime victims, respectively); and
  • Certain self-petitioners under the Violence Against Women Act.

(b)  Applicants for extension of nonimmigrant stay or change of nonimmigrant status (such applicants are subject to the rule’s public benefit condition unless the nonimmigrant classification is exempted by law or regulation from the public charge ground of inadmissibility). As of March 9, USCIS will no longer apply the separate, but related, “public benefits condition” to applications or petitions for extension of nonimmigrant stay and change of nonimmigrant status, e.g. Form I-129 or Form I-539. 

While the 2019 Public Charge Final Rule no longer applies to pending applications and petitions as of March 9, applicants still have to show they will not become a public charge to the U.S., based on 1999 guidelines. 

Family-based green card or immigrant visa applicants must still submit the Form I-864, Affidavit of Support, from the petitioner (sponsor) and joint sponsor. Petitioners are still required to submit financial documents to demonstrate they meet the income requirement to sponsor their relative in the United States.

For more information, see:

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The Legal Immigrant podcast and this article provide general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for your situation. The sharing or receipt of this information does not create an attorney-client relationship.

SUBSCRIBE           CONTACT

Dyan Williams, Esq.
info@dyanwilliamslaw.com
www.dyanwilliamslaw.com

Immigration Reform Update: Earned Path to Citizenship and Repeals of Certain Inadmissibility Bars

On February 18, the U.S. Citizenship Act of 2021 was introduced in the House by California Congresswoman Linda Sánchez and in the Senate by New Jersey Senator Robert Menendez. The White House first announced the bill on January 20, which was the first day of the Biden Administration.

The bill is 353 pages long. It contains sweeping provisions that, if passed, will overhaul many parts of the U.S. immigration system.

It seeks to give certain undocumented immigrants Lawful Prospective Immigrant (LPI) status and an 8-year path to U.S. citizenship; allow eligible DREAMERS, TPS holders and farmworkers to immediately apply for permanent residence; repeal the 3/10 year unlawful presence bar under INA 212(a)(9)(B) and the permanent bar under INA 212(a)(9)(C); and create an exception to the misrepresentation of citizenship bar for any person who was under age 21 when the false claim was made.

In Episode 8 of The Legal Immigrant podcast, I focus on the following provisions in the reform bill:

1. Section 1101, Adjustment of Status of Eligible Entrants to that of Lawful Prospective Immigrant (LPI), and Section 1102, Adjustment of Status of Lawful Prospective Immigrants

  • Provides earned 8-year path to citizenship for certain undocumented immigrants who have been present in the U.S. on or before January 1, 2021, and certain persons who were removed from the U.S. on or after January 20, 2017, but were inside the U.S. for at least 3 years prior

2. Section 3104, Promoting Family Unity

  • Repeals the 3/10 year bar under INA 212(a)(9)(B) due to accrual of more than 180 days of unlawful presence in the U.S. prior to departure
  • Eliminates the permanent bar under INA 212(a)(9)(C) due to illegal re-entry following more than 1 year of unlawful presence or following a removal order 
  • Creates exception to the false claim to U.S. citizenship bar under INA 212(a)(6)(C)(ii) for persons who made the misrepresentation when they were under age 21

Key points to consider: 

1.  The Immigration Reform bill is bicameral (introduced in the House and Senate on February 18), but is not bipartisan (sponsored by Democrats only and no Republicans). 

The comprehensive nature of the bill and the big changes proposed will make it harder to get the necessary votes. Moderation could be needed especially when Democrats have a slight margin in the House and a 50-50 split in the Senate. Vice President Harris has the tie-breaking vote.  But a supermajority of 60 senators is normally needed to pass major legislation in the Senate.

To move forward, the full legislation might have to be split up into separate smaller bills, or get added to the budget reconciliation process. Some Republicans have voiced opposition to the Biden Administration’s approach to immigration reform. 

2.   Even if the law is passed and signed by the President, it may take up to a year for the new rules to be drafted.  And it will take some time for the new application processes and forms to be rolled out and implemented. The applicant will also have to gather documents, including evidence of identity, proof of physical presence in the U.S. for the period that is required by law, and supporting records for any waiver of inadmissibility that is needed. 

3.     If you already qualify for another way to immigrate to the United States, such as by employment-based immigration or by a legal, bona fide marriage to a U.S. citizen, it’s better to use the existing path instead of wait for the results of this reform bill. 

4.     You must not deliberately fall out of status or illegally re-enter the U.S in the hope that you will be eligible for LPI status or other immigration benefits that have yet to be passed into law. Unlawful presence and illegal re-entries to the U.S. continue to have serious immigration consequences unless the law is amended to get rid of them.

Resources cited: 

For more information on inadmissibility waivers, see:

Consent to Reapply for Admission – I-212 Waiver: Remedy to Overcoming INA 212(a)(9)(A) and (C) Bars

When do you need an I-212 Waiver (and how do you get it)?

What should you do to get your I-212 Waiver?

When do you need an I-601 Waiver due to immigration fraud or misrepresentation (and how do you get it)?

When do you need an I-601 waiver due to unlawful presence (and how do you get it)?

212(d)(3)(A) Nonimmigrant Waiver: Advantages and Disadvantages

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The Legal Immigrant podcast and this article provide general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for your situation. The sharing or receipt of this information does not create an attorney-client relationship.

SUBSCRIBE           CONTACT

Immigration Reform Update and I-601 Waiver for 3/10-Year Unlawful Presence Bar

The Biden Administration’s U.S. Citizenship Act of 2021 calls for comprehensive immigration reform. One provision seeks to get rid of the 3/10-year unlawful presence bar. 

This would be a major departure from current law, which requires a special waiver for this inadmissibility ground. Immigrant visa applicants who have this bar must first receive an I-601 or I-601A waiver for the visa to be issued.  Nonimmigrant visa applicants with this bar need a 212(d)(3) waiver to be granted a visa. 

To hear more, click HERE for Episode 7 on The Legal Immigrant podcast or find it on Apple Podcasts.

In this episode, I focus on the immigrant waiver for the unlawful presence bar. I discuss the key differences between the I-601 and I-601A waiver, the qualifying relative and extreme hardship requirements, and the factors that USCIS considers in deciding whether to approve or deny the application. 

For more information on the unlawful presence waiver, see:

Whether any immigration reform or changes in the law will eliminate the unlawful presence bar is uncertain. In the meantime, the 3/10-year bar due to accrual of unlawful presence lasting more than 180 days – prior to departing the U.S. – continues to exist. 

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for your situation. The sharing or receipt of this information does not create an attorney-client relationship.

SUBSCRIBE           CONTACT