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Common US Visa and Immigration Myths
Many individuals suffered United States immigration consequences due to their reliance on erroneous information found on the internet. Whilst much information found on the internet may be accurate, we have become aware of an abundance of visa myths arising out of incorrect information that is perpetuated across the internet on sites ranging from chat boards to government information pages.
Unfortunately, these visa myths often lead to consequences of varying degrees, including the following: a.) An individual may forego applying for a specific visa category that would otherwise allow him to establish a profitable business in the United States, due to a mistaken believe that he is ineligible for the category; or b.) An individual might consider that she is authorized to carry on business activities in the United States that are, in fact, prohibited by law, leading to refusals of entry, visa denials, or worse.
The fact of the matter is that United States immigration law is rarely, if ever, straightforward — and it is important to distinguish between the reality and the myths. In this article, therefore, we address the ten (10) visa myths most commonly brought to our attention by our clients, in the hopes of helping the public to avoid costly missteps.
Myths Associated with the E2 Treaty Investor Category
Myth 1: “I need to invest $250,000 USD in the United States to be eligible for an E2 Treaty Investor Visa.”
The Reality: Not necessarily. The US Department of State (“DOS”), the United States government agency that handles E-2 visa applications does not set a minimum investment figure. Instead, the DOS simply states that the investment must be substantial. The dollar figure required for a substantial investment depends on the nature of the business to be started or to be purchased. Your investment must represent a substantial proportion of the total value of the business to be purchased or it must be sufficient to start up a profitable new business.
Our firm has handled successful applications for applicants investing as little as $50,000 USD, when this was the full amount that was required to start up the business to the point of operation.
Myth 2: “I can apply for an E2 visa to allow me to travel to the United States to make my investment.”
The Reality: This is not correct. Before you legally can apply for an E2 visa, the investment of your money must be completed, and commercially at risk. Certain regulations do allow travellers to visit the USA on the Visa Waiver Program or a Visitor Visa for the purpose of making an investment, if otherwise eligible. However, this must be handled carefully to ensure that the activities you will do are all authorized under the regulations. For example, you will not be eligible to actively manage your investment, or otherwise work in your business, until you have received the E-2 visa. The officer at the port of entry must be satisfied that you will only be engaged in authorized activities or you may be refused entry or administratively deported.
Our firm often works with investors at this initial stage of the investment. We offer our services to qualifying investors to review the proposed investment activities in the United States and to provide documents for presentation at the port of entry in support of the investor’s proposed activities in the United States.
Myth 3: “I can retire on the E-2 visa.”
The Reality: This is not correct. The E-2 Treaty Investor visa is not a retirement visa. It is intended for active investments and is only issued to investors entering the USA to actively develop and direct the investment.
The United States does not currently offer a retirement visa. You will need to secure Legal Permanent Residency in the USA before being able to retire there on a permanent basis. Given that the E-2 visa is strictly a non-immigrant visa, any Legal Permanent Residency petition or application must be handled carefully to avoid jeopardizing your E-2 visa status.
Myths Associated with Business Travellers
Myth 4: “I need to travel to the United States to do some work for my employer. I am not employed by or being paid by a United States Company and I am only staying for a short period of time, so I can travel on the Visa Waiver Program.”
The Reality: The Visa Waiver Program does not authorize productive work, regardless of where the company that you work for is located, or even whether or not you are paid for your work. This same rule also applies to individuals holding a standard B-1 Business Visitor visa. The business activities allowed under the Visa Waiver Program and standard B-1 Business Visitor visa include, but are not limited to, attendance at business meetings, conferences, seminars and exhibitions. However, conducting leadership and management training seminars, or other training events, is not authorized on the Visa Waiver Program.
It is important to be entirely clear on whether your business activities are authorized under the Visa Waiver Program. If you perform unauthorized work in the United States, you may be removed from the United States or refused entry to the United States on a later trip. You may then be unable to travel to the United States on the Visa Waiver Program and may face problems in securing a B-1 Business Visitor’s visa in the future.
Within the B-1 visa regulations there are special subcategories of B-1 visas that, when issued, allow different types of productive work. The most common of these subcategories is a Special Business Concession (also known as B1 in lieu of H1) that allows qualifying individuals to perform productive work in the United States on behalf of a foreign employer. Individuals generally find applications for the Special Business Concession to be less onerous than other visa categories as the application is presented directly to the United States Embassy or Consulate abroad. However, the presented application must clearly demonstrate the applicant’s eligibility and must be presented within the frequently changing procedural requirements of the DOS. We recommend that you consult with a qualified immigration attorney if you or your employer wish to pursue this option, given that a failed visa application, even through a simple misstep, may also render the applicant ineligible to travel on the Visa Waiver Program ever again.
Myths Associated with L-1 Intracompany Transfers
Myth 5: “The United States company must be trading for at least one (1) year before my foreign employer can transfer me to it on an L1 visa.”
The Reality: This is not the case under the special L-1 “New Office” regulations. The “New Office” regulations allow an individual employed by an affiliated company abroad in a managerial, executive, or specialized knowledge capacity to be transferred to a brand new United States company to commence the operations of the company.
The L-1 visa under the “New Office” regulations will be issued for up to one (1) year initially, and the United States company must demonstrate in its petition that the transferee will be in a position to step away from any duties in the set-up of the company that are not strictly managerial, executive, or that do not require specialized knowledge, by the end of year one (1).
A reverse version of this myth suggests that the transfer can occur even before the establishment of the United States company. In actuality, whilst the L-1 visa may be issued to a transferee commencing operations, USCIS must be satisfied in reviewing the visa petition that there is an already-established United States entity prepared to receive the transferee. To facilitate the visa process, our law firm often assists foreign companies in this initial establishment of the United States, which we handle in conjunction with the preparation of the visa petition to avoid unnecessary delays.
Myth 6: “I am paid as an independent contractor, not as an employee, so I am not eligible to transfer to the affiliated United States company.”
The Reality: You may still be eligible. Contractors that work exclusively for the foreign company, but are paid as contractors simply for payroll reasons, may still be transferred to the affiliated United States company on an L-1 visa, if otherwise eligible. During our initial consultation with you or the contracting company, we would discuss more about your role to ensure that it qualifies. Also, if you do not meet the requirements for the L-1 visa, we can discuss other potential options.
Myths Associated with Criminal Arrests and Convictions
Myth 7: “I have a criminal record. I am required to apply for a visa before traveling to the United States.”
The Reality: It depends on the record. This myth most commonly arises in relation to Question B. on the Electronic System for Travel Authorization (“ESTA”) required to travel to the United States. Question B asks:
Have you ever been arrested or convicted for an offense or crime involving moral turpitude or a violation related to a controlled substance; or have been arrested or convicted for two or more offenses for which the aggregate sentence to confinement was five years or more; or have been a controlled substance trafficker; or are you seeking entry to engage in criminal or immoral activities?
When you answer yes to this question, the US Customs and Border Protection reviews the application file and determines whether travel will still be authorized or, more commonly, that you will need to apply for a visa at the United States Embassy or Consulate abroad before traveling to the United States.
The portion of the question that generally causes confusion is whether the arrest or conviction was for a “crime involving moral turpitude”. Common law in the United States defines moral turpitude ambiguously as “conduct which is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.” Furthermore, the punishment imposed does not shed any light as to the presence or absence of moral turpitude; some crimes punishable by only a fine can still be considered crimes involving moral turpitude, whilst other crimes generally considered by the general public to be serious are not.
The determination as to whether a crime involves moral turpitude requires a review of the subject criminal record against both the equivalent United States Federal or State criminal statutes and the relevant United States immigration laws. We recommend that you consult with a qualified immigration Attorney before answering the ESTA question or contacting the United States Embassy or Consulate to schedule an appointment. When you call the United States Embassy or Consulate, you will normally reach a customer service representative at a call center, not a visa officer, who cannot instruct you on whether your arrest or conviction involved a crime involving moral turpitude. These customer service representatives instead simply instruct the individual to schedule a visa interview to make a visa application.
We receive inquiries from individuals that could have answered “no” to Question B., but who nevertheless attended a visa interview because they were uncertain and directly consulted with the United States Embassy’s call center. At the consular interview, the United States Embassy or Consular Officer notified the individual that their record did not contain a crime involving moral turpitude, but that the application was denied for other reasons, such as “insufficient ties outside of the United States”. This visa denial then renders the individual who would have otherwise received ESTA approval unable to travel on the Visa Waiver Program. Furthermore, the visa denial remains on ones DOS record for life and is very difficult to overcome as Embassy officers typically defer to the previous denial unless there has been a material change of circumstances.
Myth 8: “The conviction I suffered is now spent so I do not need to disclose it to United States immigration.”
The Reality: The United States government does not recognize the concept of spent convictions. An arrest or conviction that falls under a category requiring disclosure must be revealed regardless of how long ago it occurred and regardless of whether it has been removed from your record.
Other General Immigration Myths
Myth 9: “Once I have been in the United States for several years on a non-immigrant visa, I will automatically receive a “Green Card” (i.e., Legal Permanent Resident status).
The Reality: Unlike many countries, an individual does not automatically become eligible for Legal Permanent Resident (“LPR”) status after living in the United States for a certain number of years. The United States grants LPR status following approval of a sponsored petition or application process that is distinct from the non-immigrant visa.
These sponsored petitions may be lodged by certain United States citizens or LPRs, or by qualifying US employers. A number of different categories exist to petition for LPR status and each category maintains its own requirements and time scales. These categories normally face higher scrutiny and more requirements by USCIS than non-immigrant petitions, and we recommend that you consult with a qualified United States immigration Attorney before commencing the process.
Myth 10: “I have stayed in the US for the full 90 days of the Visa Waiver Program, but I am not ready to leave yet. I will fly out for the day and be able to stay for another 90 days when I re-enter the US.”
The Reality: Maybe. Each time you seek to enter the United States, a US Customs and Border Protection officer determines your eligibility to enter the United States and, if admitted, how long you may stay. Lengthy stays of more than a few weeks and particularly stays for the entire ninety (90) days followed by a quick return to the United States may arouse the suspicion of the US Customs and Border Protection officer. Re-entering the USA after a full ninety (90) day stay and brief departure is not strictly prohibited, but the officer may deny your entry based on suspicions that you intend to permanently reside in the United States, will not leave by the expiration date on your I-94, or that you are engaging in unauthorized work while in the United States.
We recommend that you discuss your need to remain in the USA for more than ninety (90) days with a qualified immigration Attorney to determine if there is a visa that may help facilitate your travel to the USA throughout the year. You should also consult with an accountant or tax advisor familiar with United States tax as you may be subject to US tax liability after remaining in the United States for more than 180 days of a year – even on the Visa Waiver Program.
These are just a handful of the visa and immigration myths that abound in the public domain, including on internet forums and chat rooms. Reliance on these myths can lead to serious consequences, including unnecessary visa denials, invalidation of ones right to enter the USA on the Visa Waiver Program, loss of money and business opportunities and even removal or deportation from the USA. Even if you intend to handle your visa or immigration matter on a DIY basis, it is best to consult with an experienced US immigration lawyer — if only to confirm your understanding of the relevant US immigration laws and regulations. Seeking professional advice will minimize the danger of mis-stepping as you attempt to navigate the US immigration minefield.
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