Seguritan US Immigration Articles

Eligibility for Change of Nonimmigrant Status

Change of status is available to an alien whose initial purpose for entering the United States has changed while in the U.S. It allows the alien to switch from one nonimmigrant visa category to another nonimmigrant visa category without leaving the United States.

A common example is an alien who enters the United States as a tourist who later on decides to study or work. Another common example is an alien who enters the U.S. on a student visa and subsequently obtains a job offer in the U.S.

The alien should be able to establish that he did not misrepresent his intentions when he obtained a visa at the U.S. embassy abroad. Generally, “preconceived intent” to circumvent normal visa procedures abroad will be presumed by the USCIS if the visitor applies for change of status within 30 days after entry. The application for change of nonimmigrant status will most likely be denied.

An alien must meet certain requirements to be eligible for change of status. The alien must have been a nonimmigrant visa holder lawfully admitted into the United States. There are, however, certain aliens whose current nonimmigrant status does not permit them to change status. These are aliens who are in transit through the U.S. without a visa (TWOV), and holders of C (transit), D(crewman), K(fiancé[e]) or S (witness) visas.

Also, J-1 visa holders subject to the two-year foreign residency requirement may not change status unless they obtain a waiver. A vocational student (M-1) cannot change status to an academic student (F-1) or to H (temporary work) status if the qualifications for the position were obtained through the vocational training received in the U.S.

Another requirement the alien must meet to be eligible to change status is to maintain current status. The nonimmigrant must not violate the conditions of his nonimmigrant visa. For instance, an alien on a tourist visa who files Form I-539 to change status to student, may not start classes prior to its approval. An alien on student visa who decides to work in the U.S. may not begin working before the Form I-129 petition filed by the employer is approved.

The alien is authorized to engage in activities consistent with the status he is seeking only through the formal USCIS approval of the application to change status. If the alien took on activities not allowed under his current status, the application will most likely be denied.

The alien must not have committed any crime or any other act which will bar him from changing nonimmigrant status.

The Form I-539 to change status should be filed before the expiration of the period of authorized stay as indicated in the Form I-94. It is recommended that the alien apply no later than 60 days before the authorized period expires. The USCIS accepts late filing only in rare situations where “extraordinary circumstances” beyond the alien’s control prevented him from timely filing the application.

The alien is out of status when the period on the Form I-94 expires even if application to change nonimmigrant status is pending. If the application to change status is approved, the approval retroacts to the date when the Form I-94 expired.

In case of a denial, specific request must be made in the application to change status to allow the alien to stay in the U.S. under his original status. A denial of the application to change status may not be appealed. The alien may file a motion to reopen or reconsider his application.

If the date on the Form I-94 already expired, the alien’s attorney may request a period of 15 to 30 days to leave the U.S; otherwise, the alien may be required to leave the U.S. immediately.

Immigrant Visa Issued Despite Drug Use

One of the grounds for denying an immigrant visa applicant relates to past drug use. Under the law, a person is not admissible if he admits having committed acts which constitute the elements of a violation of drug laws in the U.S or in any other country.

It appears, however, that consular officials have become more lenient with visa applicants who have admitted past drug use.

Previously, consular officials not only denied the visa application but they also advised the applicant who had admitted the drug use that he was barred from the United States permanently and that at times no waiver was available.

This was the situation that one of our recent clients found himself in. He was the derivative beneficiary of his wife’s employment-based petition. In 2005, he applied for an immigrant visa at the visa unit of the U.S. Embassy in the Philippines but he was refused the visa because of his admission of past drug use. At the time, he and his wife were not represented by counsel.

He made the “admission” of drug use at the medical examination in St. Luke’s in Manila. The panel physician asked him if he had used drugs. Perhaps thinking that it happened so long ago and only once, he responded that he used marijuana and shabu, which is a form of methamphetamine, way back in college or over ten years prior. It should also be noted that he had no criminal record whatsoever.

At the visa interview, the consular officer dropped a bomb on him and said that he was banned and blacklisted from entering the United States, alluding to his past drug use which he admitted at his medical examination.

Thus began his seven-year separation from his wife who went on to reside and work in the U.S. But she was not discouraged. As a green card holder, she filed an immigrant visa petition for him and their children who were also left behind. She remained hopeful that she would someday be reunited with him in the U.S.

After her I-130 petitions were approved last year, the wife asked us to represent her husband, given his previous visa denial due to his admission of drug use. In our letter to the U.S. Embassy in Manila, we explained why the applicant was not ineligible for a visa.

When the drug use is only a mere experimentation, it is not drug abuse as would make the person inadmissible. A single use of drugs constitutes experimentation. In this case, the applicant engaged in a one-time use of drugs which occurred many years ago.

Neither did he develop substance dependence. He was not a drug addict. His one-time use could not and in fact did not result in a compulsive long-term use or any physical, behavioral or psychological problems.

Even though he did admit his drug use to the panel physician, his admission was not of the kind that should bar him from entering the U.S.

Applying a test used by the Board of Immigration Appeals, we argued that the applicant’s admission was not valid for purposes of making him inadmissible because he was not given an adequate definition of any crime or drug offense, including all essential elements thereof, at his medical examination.

The applicant had no arrest, criminal charge or conviction in connection with any crime involving drugs. In addition, the applicable drug law in the Philippines imposed only rehabilitation for a first offense of drug use.

The applicant was able to overcome the earlier finding of inadmissibility. He recently received his immigrant visa and will be reunited with his wife very soon.

Immigration Options of the Investor

Much press has been given to immigrant investors in recent years. One of the main reasons why the EB-5 immigrant investor program has captured the attention of so many prospective immigrants is the low demand for visas under this category relative to the heavily backlogged third preference (EB-3) and, for some countries, the second preference (EB-2) categories.

At present, the EB-5 program presents one of the fastest routes to a green card, be it through the regular program which requires a $1,000,000 direct investment or the regional center or pilot program, in which an indirect investment of $500,000 is usually sufficient.

However, there are avenues that have long existed for other types of investors, particularly those who do not seek permanent resident status in the U.S.

Immigration law and regulations allow treaty traders (E-1) and treaty investors (E-2) to enter the U.S. for specific purposes as non-immigrants. However, one main distinction between them and most non-immigrants is that they can extend their stay almost indefinitely. After an initial period of two years, E-1 traders and E-2 investors can renew their stay every two years for an unlimited number of times if they maintain an intention to depart the U.S. at the expiration or termination of their status.

An E-1 treaty trader is a national of a country with which the U.S. maintains a treaty of commerce and navigation who enters the U.S. solely to engage in international trade. Trade is defined as the existing international exchange of items of trade for consideration between the U.S. and the treaty country, and includes goods, services, international banking, insurance, transportation, tourism, technology and some news-gathering activities.

The trade carried on by the treaty trader must be substantial, meaning that it must be sizable, sufficient to ensure a continuous flow of trade between the two countries. Substantiality cannot be based on a single transaction no matter how monetarily valuable it is. The trade must also be principally between the U.S. and the treaty country, i.e. more than 50% of the total volume of the trade must be between the two countries.

An E-2 treaty investor, on the other hand, is one who is seeking to enter the U.S. to direct and develop a business in which he has invested, or is in the process of actively investing, a substantial amount of capital. Like the E-1 treaty trader, the E-2 treaty investor must also be a national of a treaty country.

For E-2 purposes, substantiality is determined by weighing the amount of funds invested against the total cost of purchasing or establishing the enterprise. It is an amount considered sufficient to ensure the investor’s financial commitment to the enterprise’s success.

A higher proportion of investment is required of small businesses for the investment to be substantial. For instance, while an E-2 investor may be allowed to fund only 10% of an investment worth $10 million, for an investment of less than $100,000, the E-2 investor would normally be required to provide the entire investment.

The investment must be in a bona fide enterprise or one that is a real, active commercial or entrepreneurial undertaking. It may not be idle or passive investment, such as in stocks or undeveloped land. Furthermore, the E-2 investor’s investment cannot be marginal or solely to provide for himself and his family. A marginal enterprise is one that does not have the capacity at present or within five years to generate more than enough income for the investor and his family.

An employee of the E-1 trader and E-2 investor may qualify for the same classification if he is of the same nationality as the treaty employer and if the position is primarily executive or supervisory in character, giving the employee ultimate control and responsibility for the operation of the enterprise. If the employee is employed in another or lower capacity, to be eligible for E-1 or E-2 classification he must have special qualifications or skills essential to the operations of the business.

E-1 traders and E-2 investors, as well as their employees, may be accompanied or followed by their spouses and unmarried children below 21 years old. The dependent family members need not be of the same nationality as the trader, investor or the E-1/E-2 employee.

Contentious Issues Emerge in Immigration Proposals

Efforts towards coming up with a comprehensive immigration reform bill are rapidly gaining momentum. Bipartisan groups in both the Senate and House of Representatives are now working on their own versions of a draft bill to fix the broken immigration system.

Although the bipartisan group in the Senate earlier announced that they are aiming to complete their version of the bill by the end of March, Senate Majority Leader Harry Reid recently announced that they want the draft bill to go through the “normal traditional process” even if it takes more time. This is to build the support from its Republican members. The Senate is seen to complete a draft bill by June of this year at the latest.

A number of House members from both parties are also aiming to come up with a draft bill in the month of February. The draft of the House bill largely reflects the framework initially presented by the Senate. Similar to the proposed framework of the bipartisan group of senators, the draft House bill provides a “path to citizenship” to undocumented immigrants, intensified enforcement and border security measures and an effective employment verification system.

The draft House bill also conditions granting permanent residence to undocumented immigrants on the government’s success in securing the borders. However, unlike the Senate framework, it does not provide for the creation of a commission tasked to make a determination whether the borders are already secure.

For the Republican senators who came up with the proposed immigration reform framework, hinging the issuance of green cards to undocumented immigrants on border security is essential.

The proposition draws major concern because there is always the issue of whether the border is secure enough and it remains uncertain how long this process would take. President Obama, for his part, stands by his proposal to provide a clear and direct path to citizenship and not just create “some vague prospect in the future that it will happen.”

Although the proposals are generally in tune with the President’s immigration plan, this is one of the key differences between the President’s plan from the Senate’s immigration reform framework and the draft House bill. This is a critical issue which will without doubt spark long and heated debates. Another major difference is the President’s plan to provide same-sex families the same immigration benefits enjoyed by heterosexual families.

Aside from the two contentious issues, the proposals, including the President’s, put emphasis on eliminating long waits for family-based petitions, adding visa numbers to reduce backlogs and wait time for employment visas, and expediting the process for DREAMers to obtain citizenship, among others. The President’s plan particularly creates a “start-up” visa for investors and expands their opportunities in the U.S. He also recognizes the need to invest in the country’s immigration courts and provide wider discretion for judges to keep families intact.

Also, the proposals stress the need to provide advanced degree graduates of U.S. universities in the fields of science, technology, engineering and math with green cards. In fact, a group of bipartisan senators just proposed a bill called the I-Squared Act of 2013 to address the matter.

Fleshing out the details and coming up with a complete bill will be a challenge. The President is looking to having a comprehensive immigration reform bill passed in six months. Hopefully, our legislators won’t let us down.

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