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Posted
Jan 03, 2006
| updated Feb 27, 2008
The following
questions and answers are based on those frequently posed to the Attorneys
at the Murthy Law Firm. As a courtesy to our
clients and the immigrant community, we generously share this useful
information.
Question 1. How do I apply for a
visa at the U.S. Consulate in Madras / Chennai, India? Top
©MurthyDotCom
The U.S.
Consulate in
Chennai has a wealth of information on immigrant
and nonimmigrant visa processing on its website. This is the best source for
the most current information.
Question 2.
I have
family members and friends in India who would like to visit me in the U.S. What do I need to
do to make this possible? Top
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An applicant for
a B-2 (visitor for pleasure visa) visa must qualify based on his or her own
circumstances. One should apply for the visa at a U.S. consulate in his or
her home country. In determining whether or not to approve an application
for a B-2 visa, the consular officer will assess whether the applicant: (1)
has a residence in a foreign country that s/he does not intend to abandon;
(2) intends to enter the U.S. for a period of specifically-limited duration;
and (3) seeks admission for the sole purpose of engaging in legitimate
activities relating to pleasure. Therefore, an applicant for a visitor visa
should be able to prove ties to the home country by providing the consular
officer with documentation such as:
-
employment
verification letter
stating job title, salary, and length of employment
-
evidence of home/property ownership (copy of title)
-
a
letter from the bank
showing total balance in bank account/s
-
letters from family
members
-
visa application and fee
IMPORTANT: The above list of documents is not exhaustive. These are
merely examples of the types of information a consular officer typically
expects from a B-2 applicant.
Question 3.
I am
in H1B status and my parents are here for a visit in B-2 visa status. I would like to extend
their stay in the U.S. Is there any provision to extend B-2 status? Top
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It is possible
for a person in B-2 status to apply for an extension of stay. Six months is
the maximum time that one may request at any given time. However, one must
provide the USCIS with a detailed explanation of why the extension is
needed, as the determination is made on a case-by-case basis. Whether an
extension will be granted depends upon several factors, including the reason
for requesting the extension and whether the USCIS is convinced that the
applicant does intend to return to his or her country at the conclusion of
the stay. One should request an extension based only on the need for this
additional time in the U.S., rather than asking for the entire six months.
In order to determine how long one is allowed to stay in the U.S., s/he
needs to look at the I-94 card (i.e. the white card usually stapled in one's
passport), which shows an expiration date. The expiration date of the visa
is not relevant to the length of authorized stay.
Question 4.
On my
previous entry into the U.S., I was given six months on my I-94 card. I
remained in the country for approximately five months. Two months later, I
am back in the U.S. and I am authorized to stay here for another six months.
If I decide to use the entire six months, can I encounter problems later?
Top
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One who is
granted a six-month stay, and decides to take advantage of most or all of
this time, could be exposing him/herself to higher levels of scrutiny the
next time s/he travels to the U.S. and/or at the time of the visa renewal.
If one takes advantage of the long periods of stay granted every time s/he
enters the U.S., exhibiting a pattern of travel that raises questions about
his/her intent as a visitor, risks being denied entry at some point. S/he
may also encounter difficulties when attempting to renew a visitor visa at a
consulate.
Question 5. What are the penalties
for remaining in the U.S. past the expiration date on one's latest I-94
card? Top
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Anyone who has
overstayed (remained in the U.S. past the expiration date on her/his latest
I-94 card) - even for a single day - is not eligible to apply for a
nonimmigrant (temporary) visa from a country other than the home country.
This is because the law automatically voids the visa stamp in the passport
as soon as one continues to remain illegally in the U.S. or falls out of
status. If a person has a visitor's visa and unlawfully remains in the U.S.
for 180 consecutive days or longer (up to one year), and then
leaves voluntarily, there is a three-year bar to reentering the United
States. If one stays unlawfully in the U.S. for an entire year or more, and then leaves voluntarily, there is
a ten-year bar to returning to the U.S.
©MurthyDotCom
A person who is out of status and wishes to apply for permanent resident status cannot
complete her/his case without leaving, unless a petition or labor
certification was (a) filed for him/her before January 14, 1998 or (b) filed by
April 30, 2001, if s/he was present in the U.S. on December 21, 2000.
(There are certain exceptions, such as a person applying for a green card based
on marriage to a U.S. citizen.)
©MurthyDotCom
Apart from the consequences indicated above, there is also the possibility
of being apprehended and placed in removal proceedings or actually being
involuntarily removed from the United States.
Question 6.
I am in the United
States in H1B status and I earn a very good salary. I would like to sponsor
my parents for a tourist visa. Can I provide an employment letter from my
company for them to take to the consulate, which will demonstrate that I
have the ability to support them while they are visiting? What other
documents should they be prepared to provide at the consulate?
Top
©MurthyDotCom
One of the most
common misconceptions regarding nonimmigrant visitor visas is that someone
can / should act as a sponsor or offer to guarantee a person's return to
his/her home country. Each applicant must qualify based on his or her own
circumstances. Moreover, submitting evidence to show that a family member in
the U.S. will financially support a visitor visa applicant actually could
decrease the possibility of receiving a visa because it would tend to
indicate that s/he does not have a level of socio-economic stability in the
home country that is sufficient to overcome the burden of presumed immigrant
intent placed on all applicants for visitor visas. Therefore, it is better
to focus on relevant aspects of the intending visitor’s life that would lead
a consular officer to the conclusion that s/he has enough reasons to return
to the home country after a short trip, as discussed in question 2.
Question 7.
I am in the
U.S. in H1B status. I need to bring my parents here permanently, or
for as long as I am here.
How can I do this?
Top
©MurthyDotCom
The parents of a person in
H1B status, or even permanent resident status, are only allowed to
visit the United States as tourists. A child is able to sponsor the parents for green cards only after
becoming a U.S. citizen, her/himself.
Question 8.
I am
in B-2 status in the U.S. If I am admitted to a school here and receive an
I-20, would I be able to change to student status?
Top
©MurthyDotCom
It is possible to
apply to change status from tourist to student. Whether it is approved or
not depends upon several factors, including how long one was here
before applying for the change of status, what s/he told the consular
officer at the time of application for the visitor visa, and
whether s/he has adequate financial support to attend school. An additional
factor that is sometimes raised by the USCIS, but more often by consulates,
is whether you one has the ability to show an intention to return to the home country.
As a practical
matter, you should be aware that a change of status application can take
several months (4-8 months at the time of this writing) and, although one
may have been accepted into an academic program, s/he is not legally
authorized to attend classes until the application has been approved.
Question 9. I am in the U.S. in B-2 status. Can I
change my status to H1B while I am here? Top
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A person in B-2 status is allowed to file an application with the USCIS to
change status to H1B. In general, however, our firm does not advise that a
person file an application to change status from B-2 to H1B. Even if the
application for change of status from B-2 to H1B
is approved by the USCIS, it may be difficult
to obtain an H1B visa in the passport from a U.S. consulate abroad. A
consular officer will deny the application for an H1B visa if s/he believes
one has misrepresented him/herself upon entry to the United States. In fact,
some consular posts in Canada and Mexico do not even accept such applications. Rather than file a change-of-status application from
within the U.S., it is better to depart the U.S. and have one's prospective
employer file an H1B petition on one's behalf. Once it is approved, one will
be able to apply for an H1B visa at the U.S. consulate in her/his home
country.
Question 10.
I
would like to travel to the U.S. to marry my U.S. citizen fiancé and then
file the relevant paperwork as an immediate relative so that I can legally
remain in the country on a permanent basis. I already have a ten-year
multiple entry visa in my passport. Is it okay for me to enter the U.S. on
this visa?
Top
©MurthyDotCom
One may only
travel to the U.S. using a visa classification that is related to his/her
reason for travel. Entering on a B-2 visa for the purpose of marrying a U.S.
citizen and thereafter filing both an immigrant petition and an
adjustment-of-status application would not be a consistent use of a visitor
visa. Although one may already possess a B-2 visa, s/he must have
non-immigrant intent when entering the U.S. on this visa. One should consult
an experienced immigration attorney to discuss other options.
Question 11. I
recently was denied a visitor visa under 214(b). Am I allowed to re-apply in
a few months?
Top
©MurthyDotCom
Generally, nothing prevents you from re-applying for a visitor visa shortly
after a 214(b) refusal. However, you should be aware that consular officers
are able to access detailed records of previous interviews, including the
reasons for a denial, and may not look favorably upon re-applications within
a short period of time. Therefore, unless you are able to show that your
situation has changed since your last visit, or provide new and material
evidence that was not previously considered, it is probably better for you
to allow more time to pass before re-applying.
Question 12. I am in the U.S. in B-1 (visitor for business) status. Am I
authorized to work with a U.S. employer during my short stay in the country?
Top
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Persons in B-1 status are not authorized to work for pay in the U.S. (as are
persons in H1B status). Rather, they are only authorized to conduct
business, such as attending conventions, engaging in consultations, and
carrying out other commercial activities. Current regulations do allow
persons in this status to supervise (not perform) construction work and
foreign workers may install or repair equipment purchased overseas, but only
if the purchase contract specifically requires the seller to do so. As each
visit is temporary, such persons must maintain their residences in their
foreign country (as required by most of the other nonimmigrant visa
categories), even if the business activity is ongoing. Since it is sometimes
difficult to distinguish conducting business, which is permitted, from
engaging in employment, which is not permitted, one should first consult
with an experienced immigration attorney. As is the case with persons in B-2
status, it generally is not a good idea to file to change one’s status to
another visa category (for example, H1B) while in the U.S. Issues of
preconceived intent and misrepresentation potentially could arise.
Question 13. I would like to enter the U.S. as a visitor under the Visa
Waiver Program. Is there anything that I should be aware of before deciding
to take advantage of the program?
Top
©MurthyDotCom
Yes, one should consider a number of issues before entering the U.S. under
the Visa Waiver Program (VWP). As you may know, the VWP allows travelers
from certain countries to visit the U.S. for business or pleasure for a
maximum of 90 days without a visa. While having the option to enter the U.S.
without a visa greatly facilitates one’s ability to travel, a visitor
entering the U.S. in WB (B-1) or WT (B-2) status should note that s/he is
not eligible to change, extend, or adjust status in the U.S. In other words,
s/he must first depart and reenter the country. The only exception is in the
case of the adjustment of status of applicants who qualify as immediate
relatives. A visitor entering the U.S. under the VWP must provide a
machine-readable passport, evidence of a foreign residence to which s/he
will return, and evidence of financial ties to the home country.
Question 14. I am interested in flying to the U.S. from Bermuda for a visit.
Do I need a passport?
Top
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Yes, a passport (or other document/s required by DHS) reflecting identity
and citizenship is required for one’s admission into the United States. This
requirement came into effect on January 23, 2007, under the Western
Hemisphere Travel Initiative (WHTI). Under the WHTI, all persons traveling
by air between the U.S. and Canada, Mexico, Central or South America, the
Caribbean, or Bermuda need valid passports, Air NEXUS cards, or U.S. Coast
Guard Merchant Mariner Documents. Additional information regarding the WHTI
is available at the
U.S. Department of State WebSite.
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