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Introduction
Many people suffered United States immigration penalties resulting from their reliance on inaccurate info discovered on the web. While a lot info discovered on the web could also be correct, we’ve got grow to be conscious of an abundance of visa myths arising out of incorrect info that’s perpetuated throughout the web on websites starting from chat boards to authorities info pages.
Sadly, these visa myths typically result in penalties of various levels, together with the next: a.) A person might forego making use of for a particular visa class that might in any other case enable him to ascertain a worthwhile enterprise in the US, resulting from a mistaken imagine that he’s ineligible for the class; or b.) A person may contemplate that she is allowed to hold on enterprise actions in the US which are, in actual fact, prohibited by legislation, resulting in refusals of entry, visa denials, or worse.
The very fact of the matter is that United States immigration legislation isn’t, if ever, easy — and you will need to distinguish between the truth and the myths. On this article, due to this fact, we deal with the ten (10) visa myths mostly dropped at our consideration by our purchasers, within the hopes of serving to the general public to keep away from expensive missteps.
Myths Related to the E2 Treaty Investor Class
Delusion 1: “I would like to speculate $250,000 USD in the US to be eligible for an E2 Treaty Investor Visa.”
The Actuality: Not essentially. The US Division of State (“DOS”), the US authorities company that handles E-2 visa purposes doesn’t set a minimal funding determine. As a substitute, the DOS merely states that the funding have to be substantial. The greenback determine required for a considerable funding is determined by the character of the enterprise to be began or to be bought. Your funding should symbolize a considerable proportion of the full worth of the enterprise to be bought or it have to be ample to start out up a worthwhile new enterprise.
Our agency has dealt with profitable purposes for candidates investing as little as $50,000 USD, when this was the total quantity that was required to start out up the enterprise to the purpose of operation.
Delusion 2: “I can apply for an E2 visa to permit me to journey to the US to make my funding.”
The Actuality: This isn’t appropriate. Earlier than you legally can apply for an E2 visa, the funding of your cash have to be accomplished, and commercially in danger. Sure rules do enable travellers to go to the USA on the Visa Waiver Program or a Customer Visa for the aim of investing, if in any other case eligible. Nevertheless, this have to be dealt with fastidiously to make sure that the actions you’ll do are all licensed beneath the rules. For instance, you’ll not be eligible to actively handle your funding, or in any other case work in your online business, till you might have acquired the E-2 visa. The officer on the port of entry have to be glad that you’ll solely be engaged in licensed actions or you might be refused entry or administratively deported.
Our agency typically works with traders at this preliminary stage of the funding. We provide our companies to qualifying traders to evaluation the proposed funding actions in the US and to supply paperwork for presentation on the port of entry in help of the investor’s proposed actions in the US.
Delusion 3: “I can retire on the E-2 visa.”
The Actuality: This isn’t appropriate. The E-2 Treaty Investor visa shouldn’t be a retirement visa. It’s meant for lively investments and is simply issued to traders coming into the USA to actively develop and direct the funding.
The USA doesn’t at the moment supply a retirement visa. You will have to safe Authorized Everlasting Residency within the USA earlier than with the ability to retire there on a everlasting foundation. Provided that the E-2 visa is strictly a non-immigrant visa, any Authorized Everlasting Residency petition or software have to be dealt with fastidiously to keep away from jeopardizing your E-2 visa standing.
Myths Related to Enterprise Travellers
Delusion 4: “I must journey to the US to do some work for my employer. I’m not employed by or being paid by a United States Firm and I’m solely staying for a brief time period, so I can journey on the Visa Waiver Program.”
The Actuality: The Visa Waiver Program doesn’t authorize productive work, no matter the place the corporate that you just work for is positioned, and even whether or not or not you’re paid on your work. This similar rule additionally applies to people holding a regular B-1 Enterprise Customer visa. The enterprise actions allowed beneath the Visa Waiver Program and customary B-1 Enterprise Customer visa embody, however are usually not restricted to, attendance at enterprise conferences, conferences, seminars and exhibitions. Nevertheless, conducting management and administration coaching seminars, or different coaching occasions, shouldn’t be licensed on the Visa Waiver Program.
You will need to be totally clear on whether or not your online business actions are licensed beneath the Visa Waiver Program. Should you carry out unauthorized work in the US, you might be faraway from the US or refused entry to the US on a later journey. You could then be unable to journey to the US on the Visa Waiver Program and should face issues in securing a B-1 Enterprise Customer’s visa sooner or later.
Throughout the B-1 visa rules there are particular subcategories of B-1 visas that, when issued, enable various kinds of productive work. The most typical of those subcategories is a Particular Enterprise Concession (also called B1 in lieu of H1) that enables qualifying people to carry out productive work in the US on behalf of a international employer. People usually discover purposes for the Particular Enterprise Concession to be much less onerous than different visa classes as the appliance is offered on to the US Embassy or Consulate overseas. Nevertheless, the offered software should clearly display the applicant’s eligibility and have to be offered inside the ceaselessly altering procedural necessities of the DOS. We suggest that you just seek the advice of with a professional immigration legal professional in the event you or your employer want to pursue this selection, given {that a} failed visa software, even by means of a easy misstep, might also render the applicant ineligible to journey on the Visa Waiver Program ever once more.
Myths Related to L-1 Intracompany Transfers
Delusion 5: “The USA firm have to be buying and selling for at the least one (1) 12 months earlier than my international employer can switch me to it on an L1 visa.”
The Actuality: This isn’t the case beneath the particular L-1 “New Workplace” rules. The “New Workplace” rules enable a person employed by an affiliated firm overseas in a managerial, govt, or specialised data capability to be transferred to a model new United States firm to begin the operations of the corporate.
The L-1 visa beneath the “New Workplace” rules might be issued for as much as one (1) 12 months initially, and the US firm should display in its petition that the transferee might be able to step away from any duties within the set-up of the corporate that aren’t strictly managerial, govt, or that don’t require specialised data, by the top of 12 months one (1).
A reverse model of this fantasy means that the switch can happen even earlier than the institution of the US firm. In reality, while the L-1 visa could also be issued to a transferee commencing operations, USCIS have to be glad in reviewing the visa petition that there’s an already-established United States entity ready to obtain the transferee. To facilitate the visa course of, our legislation agency typically assists international corporations on this preliminary institution of the US, which we deal with together with the preparation of the visa petition to keep away from pointless delays.
Delusion 6: “I’m paid as an impartial contractor, not as an worker, so I’m not eligible to switch to the affiliated United States firm.”
The Actuality: You should still be eligible. Contractors that work completely for the international firm, however are paid as contractors merely for payroll causes, should still be transferred to the affiliated United States firm on an L-1 visa, if in any other case eligible. Throughout our preliminary session with you or the contracting firm, we’d talk about extra about your position to make sure that it qualifies. Additionally, if you don’t meet the necessities for the L-1 visa, we will talk about different potential choices.
Myths Related to Felony Arrests and Convictions
Delusion 7: “I’ve a prison file. I’m required to use for a visa earlier than touring to the US.”
The Actuality: It is determined by the file. This fantasy mostly arises in relation to Query B. on the Digital System for Journey Authorization (“ESTA”) required to journey to the US. Query B asks:
Have you ever ever been arrested or convicted for an offense or crime involving ethical turpitude or a violation associated to a managed substance; or have been arrested or convicted for 2 or extra offenses for which the mixture sentence to confinement was 5 years or extra; or have been a managed substance trafficker; or are you in search of entry to have interaction in prison or immoral actions?
While you reply sure to this query, the US Customs and Border Safety opinions the appliance file and determines whether or not journey will nonetheless be licensed or, extra generally, that you’ll want to use for a visa at the US Embassy or Consulate overseas earlier than touring to the US.
The portion of the query that usually causes confusion is whether or not the arrest or conviction was for a “crime involving ethical turpitude”. Widespread legislation in the US defines ethical turpitude ambiguously as “conduct which is inherently base, vile, or wicked, and opposite to the accepted guidelines of morality and the duties owed between individuals or to society typically.” Moreover, the punishment imposed doesn’t shed any gentle as to the presence or absence of ethical turpitude; some crimes punishable by solely a nice can nonetheless be thought-about crimes involving ethical turpitude, while different crimes usually thought-about by most people to be severe are usually not.
The willpower as as to if against the law entails ethical turpitude requires a evaluation of the topic prison file towards each the equal United States Federal or State prison statutes and the related United States immigration legal guidelines. We suggest that you just seek the advice of with a professional immigration Lawyer earlier than answering the ESTA query or contacting the US Embassy or Consulate to schedule an appointment. While you name the US Embassy or Consulate, you’ll usually attain a customer support consultant at a name middle, not a visa officer, who can’t instruct you on whether or not your arrest or conviction concerned against the law involving ethical turpitude. These customer support representatives as a substitute merely instruct the person to schedule a visa interview to make a visa software.
We obtain inquiries from people that might have answered “no” to Query B., however who however attended a visa interview as a result of they have been unsure and straight consulted with the US Embassy’s name middle. On the consular interview, the US Embassy or Consular Officer notified the person that their file didn’t include against the law involving ethical turpitude, however that the appliance was denied for different causes, resembling “inadequate ties outdoors of the US”. This visa denial then renders the person who would have in any other case acquired ESTA approval unable to journey on the Visa Waiver Program. Moreover, the visa denial stays on ones DOS file for all times and could be very troublesome to beat as Embassy officers sometimes defer to the earlier denial until there was a cloth change of circumstances.
Delusion 8: “The conviction I suffered is now spent so I don’t must disclose it to United States immigration.”
The Actuality: The USA authorities doesn’t acknowledge the idea of spent convictions. An arrest or conviction that falls beneath a class requiring disclosure have to be revealed no matter how way back it occurred and no matter whether or not it has been eliminated out of your file.
Different Common Immigration Myths
Delusion 9: “As soon as I’ve been in the US for a number of years on a non-immigrant visa, I’ll routinely obtain a “Inexperienced Card” (i.e., Authorized Everlasting Resident standing).
The Actuality: In contrast to many nations, a person doesn’t routinely grow to be eligible for Authorized Everlasting Resident (“LPR”) standing after dwelling in the US for a sure variety of years. The USA grants LPR standing following approval of a sponsored petition or software course of that’s distinct from the non-immigrant visa.
These sponsored petitions could also be lodged by sure United States residents or LPRs, or by qualifying US employers. A variety of totally different classes exist to petition for LPR standing and every class maintains its personal necessities and time scales. These classes usually face increased scrutiny and extra necessities by USCIS than non-immigrant petitions, and we suggest that you just seek the advice of with a professional United States immigration Lawyer earlier than commencing the method.
Delusion 10: “I’ve stayed within the US for the total 90 days of the Visa Waiver Program, however I’m not prepared to go away but. I’ll fly out for the day and have the ability to keep for an additional 90 days once I re-enter the US.”
The Actuality: Perhaps. Every time you search to enter the US, a US Customs and Border Safety officer determines your eligibility to enter the US and, if admitted, how lengthy you might keep. Prolonged stays of quite a lot of weeks and notably stays for the whole ninety (90) days adopted by a fast return to the US might arouse the suspicion of the US Customs and Border Safety officer. Re-entering the USA after a full ninety (90) day keep and temporary departure shouldn’t be strictly prohibited, however the officer might deny your entry primarily based on suspicions that you just intend to completely reside in the US, is not going to go away by the expiration date in your I-94, or that you’re participating in unauthorized work whereas in the US.
We suggest that you just talk about your want to stay within the USA for greater than ninety (90) days with a professional immigration Lawyer to find out if there’s a visa that will assist facilitate your journey to the USA all year long. You must also seek the advice of with an accountant or tax advisor accustomed to United States tax as you might be topic to US tax legal responsibility after remaining in the US for greater than 180 days of a 12 months – even on the Visa Waiver Program.
Conclusion
These are only a handful of the visa and immigration myths that abound within the public area, together with on web boards and chat rooms. Reliance on these myths can result in severe penalties, together with pointless visa denials, invalidation of ones proper to enter the USA on the Visa Waiver Program, lack of cash and enterprise alternatives and even elimination or deportation from the USA. Even in the event you intend to deal with your visa or immigration matter on a DIY foundation, it’s best to seek the advice of with an skilled US immigration lawyer — if solely to substantiate your understanding of the related US immigration legal guidelines and rules. Looking for skilled recommendation will reduce the hazard of mis-stepping as you try to navigate the US immigration minefield.
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Source by Orlando Ortega-Medina
