US IMMIGRATION: Tips for how to stay in the US … the right way!

| April 19, 2012

An article by SAABC subscriber Lara Romanello.

Whether you are considering working for an American employer or pursuing a business investment venture in the United States arena, there are key issues that need to be addressed for your goals to be reached. One issue is immigration.

Non-immigrant visas
There are a number of non-immigrant work visas available. These categories include, but are not limited to, visas for registered nurses, temporary agricultural workers or those performing other services or labor, intra-company transferees; and foreign nationals with extraordinary ability in the sciences, arts, education, business, or athletics and internationally recognized athletes or members of an entertainment group.

There is also a visa available for foreign nationals in specialty occupations. This visa is a very common category, and therefore I have chosen this one to elaborate upon. The foreign national must be offered employment in a field requiring highly specialized knowledge, which in turn would require a Bachelor’s or higher degree or its equivalent. As an H-1B nonimmigrant, you may be admitted for a period of up to three years. Your stay may be extended, but generally it cannot go beyond a total of six years, though some exceptions apply. There are a limited number of visas in this category that are made available in any one calendar year, however there are certain sub-categories of professionals who are not subject to the cap at all.

Immigrant Visas
There are three main categories available for individuals who wish to live and work in the Unites States on a permanent basis.

  1. Offer of permanent employment by a US employer
  2. Investors/entrepreneurs who are making an investment in a commercial enterprise in the United States, who will thereby create ten permanent full time jobs for qualified United States workers. The foreign national must invest $1,000,000, or at least $500,000 (high unemployment or rural area) in a targeted employment area
  3. Some immigrant categories provide for a “self-petition”. Namely for those persons with “extraordinary ability” in the sciences, arts, education, business or athletics.

There are visas for family members (spouse and children) of those individuals fitting into the above non-immigrant or green card categories. The next question is an important one and that is: Can I adjust my status to these categories while in the United States, as opposed to having the visa processed at the consular level in the person’s country of origin. The simplified answer is: Yes you can.

Caveats
There are a number of caveats that I implore all South Africans to carefully consider and heed.

  1. Authorized stay – Visa stamp versus I-94 card – There is a difference between the date on the visa stamp in your passport and the date stamped on the white I-94 card given to you at the port of entry to the United States. If, for example, you are granted a visitor visa for 10 years, this enables you to travel to the U.S. as a visitor over that ten-year period until the visa expires. The crucial question to ask is what date the immigration official stamped on the white arrival card. Generally they will grant a six-month stay; however, I have seen clients being stamped with as little as two weeks! This date on the I-94 card must be obeyed, lest one finds oneself in “out of status” territory, which brings me to the next caveat.
  2. The 3/10-year bar – If you have been unlawfully present in the U.S. for more than 180 days and you exit you are barred from reentering for three years. If you have been unlawfully present in the U.S. for more than 1 year you are barred from reentry for 10 years. There are waivers that are available to lift this bar, however they are very narrow and difficult to obtain. Navigating illegal status and trying to overcome it may not be impossible, but it is of course better to avoid. The common element in most visa applications is the presumption of the intent to immigrate, which will most certainly be brought to the forefront if you have overstayed your welcome.
  3. The B1/B2 Visa – Visitor for Business or Pleasure or Medical Treatment – Foreign nationals entering the United States with a visitor visa are very restricted as to what they are permitted to do while in the U.S. I will focus on the B1 visa, which is granted to individuals who are coming to the U.S. on business. Examples of “business” purposes include, consultation with a business, travel for a scientific, educational, professional or business convention or conference on specific dates, to settle an estate, or negotiate a contract. The general rule here is that the foreigner cannot be employed by and receive income from a U.S. employer.
  4. Hiring an immigration attorney – Unfortunately there are avalanches of immigration scams out there that intend to lure vulnerable foreign nationals. Only an attorney or an accredited organization can give you legal advice on immigration matters. This is a topic for an article in and of itself. In sum, be guarded as to whom you hire. If you are uncertain, ask to see the person’s credentials, get a referral from a trusted source or look for alternative representation if you feel unsure for any reason.

Living and working in the United States of America, whether permanent or not is truly a rewarding and life-altering experience, especially when done the right way.

Do you have a tip to share about immigration to the USA? _______________________________________________________

Lara Romanello

Lara Allem-Romanello is a United States and a South African Attorney. She practices immigration law in the United States. Her practice is geared exclusively to immigration law, providing professional services to individuals and corporations, on a global platform.

You may contact Ms. Allem-Romanello at 561.386.2006 or lara@lar-law.com. You may also visit the firm’s website at www.lar-law.com and blog at www.larlawblog.com where you can read up on the latest “hot topics” and new developments relating to United States immigration.

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