Ask Henry

Ask Henry: Work Visas
“Ask Henry” collects some of the best and most frequently-asked questions I receive about immigration law. 
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Ask Henry
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Can I get my visa inside the USA?

“No, it is required that you obtain your visa outside of the United States at a U.S. Consulate.”

Visa description, what is it?

“A visa is a document that the government issues, allowing individuals to enter and temporarily remain in the United States.”

Once I go through the application process, will I get my visa approved?

“After you complete the application process, there is no guarantee that your visa will be approved. The consulate officer will examine your case to determine if you are admissible or inadmissible into the United States and also apply discretionary factors in your favor or against you. So there is no guarantee that you would enter the United States or be granted a visa upon application.”

What would cause a turned down application?

“Reasons why an application would be turned down can vary. The consulate officer, upon interviewing you and upon interviewing the documents that you present to the government, may find irregularities. For example, if you’ve been arrested in the past, or if something shows up in your case that would make you inadmissible, that would be a reason for a denial.”

Does a visa give me guaranteed stay in the U.S?

“A visa does not guarantee your stay in the United States. What a visa is, is an application to enter the United States. When you show up at an airport or a border inspection, what you do is you present your visa and the officer at that point would inspect your visa and inspect your documents to determine whether or not you will be allowed into the United States.”

Visa, Green Card differences?

“Yes, there is a difference between a visa and a green card. Typically, a visa is a document to allow a temporary stay in the United States for a specific purpose, whereas a green card is a permanent status in the United States, often times considered an immigrant visa.”

Can I visit an embassy or consulate at any time?

“Typically, you may not approach a consulate at any time. An appointment is usually required in order to enter a consulate due to security reasons.”

Visa processing times, how long do they take?

“Visa processing times may vary from consulate to consulate. Often times, the question really is, ‘how long after my interview will I receive a result?’ The results can come in rather quickly in most cases, either positive or negative, but if you have problems obtaining the results, you should contact an attorney.”

If found ineligible, can I reapply for a visa?

“If you are found ineligible for a visa, yes, you may reapply under certain conditions. Granted, you must make sure you have overcome the reasons for the initial denial.”

How do I get a Florida drivers license?

“In the state of Florida, in order to obtain a driver’s license, one must have a social security number and at the very least, a work permit.”

What is the difference between an immigrant visa and a non-immigrant visa?

“The different between a non-immigrant visa and an immigrant visa are as follows: a non-immigrant visa is for a temporary stay for a specific purpose, whereas an immigrant visa is for permanent residence in the United States, oftentimes referred to as a green card.”

What should I do if my visa application is denied?

“If your application is denied, the best thing to do is to seek the help of an attorney. An attorney will be able to guide you through the process of an appeal and will be able to tell you whether or not you should appeal. Sometimes it is wise to appeal, other times it is not. And please remember there is a 30 day limitation as far as when you can appeal.”

Can I get a permanent green card?

“A green card is called lawful permanent residence, but it may not necessarily be permanent. A green card, for example, may have a validity of 2 years, 10 years, and it must be renewed, depending on how you obtained your permanent residency. What happens is that even though you’re a permanent resident, you may still be deported if you commit certain crimes or if you abandon your residency. So in that sense, it’s not necessarily permanent; it’s a misnomer.”

Coming to USA for work, do I need a visa?

“If you want to come to the United States to work, yes, you need a visa. There are many visas available that may allow you to work. We have visas for professional occupations, we have visas for different skills that people bring, we have even visas for people who bring cultural knowledge to the United States. For example, the Q visas often found in the workers who work at Disney.”

I already have a visa. Can I start working immediately?

“If you already have a visa, in order to work, it must specifically be for work. In other words, a tourist visa, you’re not allowed to work. A student visa, you are not allowed to work without obtaining special permission first. So it also depends on the type of visa that you have before you are able to begin working in the United States.”

Is there more than one type of immigrant work visa?

“Yes, there are more than one type of work visas. There are many types of work visas. There are H1B’s for professional occupations, there are L1 visas for intercompany transferees, and that’s where we have companies who work abroad and want to bring employees into the United States. We have E1 and E2’s for essential employees of these investor visas. We have many, many different types of visas available and it’s best to consult with a qualified immigration attorney.”

Is my employer required to obtain labor certifications?

“Some employers are required to obtain labor certifications. It depends on the type of visa that one is applying for, and the best thing to do is to consult an immigration attorney.”

Are worker visas available in an unlimited amount?

“There are limited numbers of worker visas. Each category carries a specific quota dictated by Congress.”

Work permit process when married to a US citizen

“If you’re married to a U.S. citizen and you also file for adjustment of status, if eligible, a work permit typically takes about 90 days.”

What is an H1B Visa and what do I need?

“An H1-B visa is for professionals or specialty occupations, and typically what you need to have is a job offer; a job offer where a specific degree—a 4-year degree—is normally required to obtain that job. What you need to do is make sure that you have an employer that is willing to sponsor you and to apply in a timely fashion.”

When is the best time to submit my H-1B visa application?

“The best time to file for an H-1B visa is in the first quarter of the year, and the reason for that is the fiscal year for the government begins October 1st. The government begins to accept applications 6 months earlier on April 1st. There is a quota for H-1B visas that is usually filled on the first day when applications are received. So therefore, it would be wise to have the applications ready in the first quarter of the year so that they arrive on April 1st to immigration.”

Are there different types of investor visas?

“Yes, there are different types of investor visas. For example, you have what’s called an E1 or an E2 treaty/trader visa, and what that means is that the person has to be a national of a specific country that has an agreement with the United States. Typically, you’re looking at a $100,000 investment in a project within the United States that will create a substantial income for you. The other types of visas are normally called an EB5. Now, an EB5 is either a $1 million investment with the creation of 10 employees or a $500,000 investment in a targeted employment area with the creation of 10 new employees.”

Which investor visa application is right for me?

“The application process for investor visas do vary, and they are different from other types of visas. For example, if someone is living abroad and wants to file for an E2 visa for example, then that person may just go ahead and file directly with a consulate as opposed to having being pre-approved in the United States.”

Do qualified US investors have requirements while in the United States?

“The expectations of U.S. investors are to maintain the investment in the United States. Typically, if you’re an E2 for example, you may renew that visa for the rest of your life so long as you maintain the active investment.”

If I’m qualified, what do I need to bring to my visa interview?

“If you’re a qualified investor, you must bring all of the supporting documents to your visa interview. The qualifying documents would be the proof that you’ve invested the money in a venture in the United States, among other things. So we will need to have your business plan, we will need to have your bank statements; many, many documents that an immigration attorney would be able to best guide you through.”

I have my E-2 investor visa. What should I know?

“If you have your E-2 investor visa, what you need to know is that you need to maintain the activity in that venture, because you will be able to renew it unlimited times so long as you maintain that activity in the business.”

Can I apply for a Social Security card after obtaining my investor visa?

“After obtaining your investor visa, yes, you may obtain a social security number.”

Investor Visa delayed, should I wait before planning my trip to the US?

“If you have not obtained your investor visa, or any visa for that matter, yes. You should wait before planning your trip to the United States. Until your visa is granted, there is no guarantee that you will be allowed to enter the United States.”

Obtained permanent residency, how long should I wait to apply for citizenship?

“The wait times to apply for citizenship vary from individual to individual. It depends on how one obtained permanent residency. For example, if one obtained permanent residency through marriage to a U.S. citizen, it has remained in a marital union with that U.S. citizen for three years and has also maintained their lawful permanent residency status for three years, they may apply under the three-year rule. In fact, one can apply 90 days prior to the third year anniversary of having obtained the permanent residency card. Normally, most people have to file and wait five years after having obtained lawful permanent residency. Again, one is allowed to apply 90 days prior to the fifth year anniversary of having obtained their lawful permanent residence.”

Married a US citizen, does my immigration status change?

“If you just married a U.S. citizen, the best thing to do is to hire an immigration attorney. An immigration attorney will be able to guide you through the entire process, and to make sure to avoid complications.”

What are the requirements for citizenship?

“The requirements for citizenship are good moral character. In other words, no arrests, no significant arrests during the statutory period which is either 3 or 5 years. Also that you have been physically present in the United States for at least half of the time of the statutory period. So, for example, if you are applying under the 5-year rule that you have been here for 2 and a half years, also that you have not abandoned your continuous residence. Some people think that, ‘I can leave for 4 months, come back to the U.S. for 2, leave for another 4 months and keep doing this because I will never be out of the U.S. for 6 months. Well, unfortunately, you have broken the continuous residence if you leave for those periods of time. You must also pass an English test; in other words, you must know conversational English, you must know how to read and write English as well, and you must also pass a civics test that covers U.S. history, geography, and things of that nature.”

What happens to my children if I become a citizen?

“When someone becomes a citizen, the children may or may not be affected. If the child is under 18, has lawful permanent residence, and has a parent who has become a U.S. citizen, is now automatically, by rule of law, a U.S. citizen. However, if all of the conditions are not met, they do not qualify for automatic citizenship. It is wise to consult an attorney to determine one’s rights in that matter.”

Why should I hire an attorney for citizenship?

“It’s very important to hire an attorney for citizenship, and the reason is this is the last opportunity immigration will have to review your file. Having said that, what that means is that they will place extra scrutiny in your application. If there are any irregularities, an attorney may help you confront those situations before they become even worse.”

Florida immigration benefits for out-of-state same-sex marriage

“If you get married in a state recognizing gay marriage, then yes, you may file for immigration benefits if you reside in the state of Florida. So long as the marriage is recognized in the state where it occurred, then you’ll be fine from an immigration point of view. That’s what happened as a result of overturning section three of DOMA.”

If I am gay, can I petition for my fiancee living abroad?

“If you are gay, you may petition for your fiancée living abroad. Once the fiancée petition is approved, you and your partner will then go to a state that recognizes gay marriage to obtain the lawful marriage and then you may return to Florida to file your application for permanent residence.”

What evidence do I need in a marriage case?

“In a marriage case, the best evidence would be to obtain documentation showing a commingling of funds. For example, bank accounts, credit card statements, lease agreements, any property that are purchased, and, of course, children.”

Waiver description and how to get one

“A waiver is forgiveness for something that makes you inadmissible. For example, if someone has a J visa and they are required to leave the United States upon expiration of their visa but is now married to a U.S. citizen and wants to remain here, well that person would seek a waiver of that 2-year requirement. Or another example would be someone commits a crime that makes them inadmissible. Well, that person would then seek a waiver to overcome that inadmissibility charge.”

What is the difference between waiver and provisional waiver?

“The difference between a waiver and a provisional waiver is that a waiver is typically done outside of the United States. If the person has to leave the United States, that waiver is going to be filed for while the person is outside of the United States. A provisional waiver is something that was approved and began actually March 4th, 2013. And what it does is, it allows spouses of U.S. citizens and minor children of U.S. citizens, to file for those waivers while they wait in the United States. It is highly beneficial because now, that family can remain together in the United States without having to depart in order to receive the results of the waiver.”

What is voluntary departure?

“Voluntary departure is a privilege that people apply for in lieu of deportation. If someone does not want to have an order of deportation and the penalties that it carries, one would seek voluntary departure. Voluntary departure is sought if a person is of good moral character and will voluntarily leave the United States within the time allowed by the U.S. immigration judge.”

What is the 10-year law?

“The 10-year law is actually cancellation of removal. A lot of people just call it the 10-year law because one of the main things is if you’ve been here for 10 years, you qualify. However, it is not enough to have been present in the United States for 10 years. The first qualification is just that, that you have been physically present in the United States for 10 years, but you must also approve that you are a person of good moral character. You must also prove that you have qualifying relatives, such as a child, a spouse, a parent who is either a U.S. citizen or permanent resident. And the hardest thing to do is to prove exceptional hardship to that qualifying relative. Only 4,000 cases are allowed to be approved per year, so it is something that is very, very limited and should definitely seek the help of an attorney when dealing with this matter.”

What is asylum?

“Asylum is a law in the United States that protects people who have been persecuted in their country, either for race, religion, nationality, membership in a particular social group or political opinion. It is typically sought after by people who are escaping dangerous situations in their country. There is a 1-year deadline to file for asylum after having entered the United States. So, if you feel that you may have a case for asylum, it is wise to seek the help of a qualified attorney.”

What made you decide to become an Immigration Attorney?

“I became an immigration attorney for various reasons. My family and I are immigrants, so I know what it’s like to go through this process. The first memories that I have are of war. I lived in Nicaragua for when I was born and we lived there through my early childhood. And I remember leaving my house to go to a war shelter. I remember coming back to my house with bullet holes in my front door on my front wall of my house. I remember having to burn books and bury the ashes because it could be considered propaganda material by the opposing side. I remember holding onto my mom and my little brother while there were shootings going on in my neighborhood. I remember having to be placed in the shower because it was the safest room to be in while the two warring factions were shooting at each other. So we came to the United States and we had to undergo the immigration process and it took over 14 years for my family to resolve our immigration process. So I understand what it’s like to go through that process, and I understand the fears that people have, and I understand how many different attorneys prey on these fears. So, I knew I wanted to become an attorney, but in high school I didn’t know precisely what type of attorney I wanted to be. I became involved with mock trials in high school and I got that itch to become an attorney. I went to law school, and while in law school, that was always something in the back of my mind. So, I became involved with organizations such as The Florida Immigration Advocacy Center, I became a volunteer under the Haitian Refugee Project at the time, and I also volunteered at the Chrome Detention Center in Miami. And that is something that was special to me. It was very special to me to be able to help people in something that would affect the rest of their lives, and it’s something that still affects me today, 15 years later. That’s why I practice immigration law.”

What made you decide to start your practice in Orlando?

“The reason why I started my practice in Orlando is because I love the city. I love Central Florida. I grew up after some time in Miami, wishing to get away from that area. I came to Central Florida and I knew that this was a place that I could start my family. My wife and I now have three children, ages 8, 6, and 4, so we find Central Florida to be a perfect place to raise a family. And what I want to do is help others raise their families in this area as well. Many people come to this area as tourists and end up falling in love with this area as I did. And one of the most rewarding things about my job is to help them remain in this area.”

What makes your practice different from everyone else?

“What makes my practice different, I believe, from others—and there are several qualified attorneys in this area, first of all. But what I believe makes us stand out is having gone through the process. I understand what people are going through. When the person sits across my desk and they’re explaining to me their problems, I’ve lived it, and I know what that’s like. I’m fluent in Spanish. I was born in Nicaragua. I have a family, so I know that one of the main reasons why people seek to better their lives is to offer their children opportunity. So what makes us different is recognizing these things, recognizing that we are here to make a difference in peoples’ lives.”

Why should I hire an immigration attorney?

“You should hire an attorney because it is the best way to avoid unnecessary consequences. Many people find themselves in situations where certain things could be avoided. Deportation, denials, things of that nature, and an attorney will be able to best guide you through it.”