H Visa

Substantial transcription: 

7th July 2012 at 05:16 PM

9.59 Minutes

What do we do when our visa gets denied under section 214(b) of the Immigration and Nationality Act?   Basically, this means that if the consulate doesn’t believe you are going to come back, they deny the visa, saying that you have an immigrant intent which you have not been able to rebut.   So the idea is whenever somebody goes for a visa stamping, they actually are presumed to have immigrant intent unless they prove otherwise.   Of all the visas A, B, C, D, E, F, G, H all the way to V, some visas are immune to this problem.

What are the visas that are immune?

H-1 as well as H-4, L-1 as well as L-2, and O-1 and O-1 derivative visas are immune by law almost.  H and L are clearly immune by law and O by implication.  With these visas, if you have a green card going, the consulate is not going to deny your visa for that reason.

On the other hand, there are notorious visas that are very susceptible to this problem:

B-1, B-2, F-1 as well as F-2 (which are for students), and J-1 as well as J-2 are susceptible.  A lot of physicians on J-1’s have had a visa denial on 214(b).

TN visa holders strictly not going for visa stamping but can be stopped at the border if their green card has been filed.  So bear in mind that when TN holders apply for a green card, they should be careful about this particular factor.

The biggest problem with 214(b) is it is extremely difficult to fight it.  I have recently taken a case in which an F visa was denied on 214(b), and I think we have a fighting chance because the visa applicant has come to the U.S. many times and she has left within her time permitted.  So she’s been a frequent traveler on a B visa.  Her F visa denial is extremely unjustified, in my opinion.

Let me just very quickly go through the visa alphabets.

A visa (diplomats) will have no problem.  They have no issues of a green card being denied.

B visa will have a problem.

C, D, and E visas will usually not have a problem.

The only thing you have to establish for E-3, especially for Australians (E-3 is kind of equivalent of H-1), is that you do have an intention to come back but not to the same degree.   In other words, if you have a home in Australia, the degree of proof is not very high so it is very easy to meet that degree of proof.

G visa is ok.

H visa is ok.

By the way, H-2B visas can have a major problem with immigrant intent.  These are people who are coming to U.S. for to perform skilled labor.

I, which is international journalists/media representatives, may or may not be ok.

J visa will definitely be a problem.

K -1 and K-3 are no problem because they are fiancés or spouses of U.S. citizens and are obviously meant to go into green card.

L visa is no problem.

M, which is folks who are doing vocational training, can have this problem.

P visa (performers, athletes, etc.) can have a problem but usually won’t.

Q visa (exchange visitors) can have a problem.

R visa usually won’t.

 S, T, and U visas won’t usually have a problem because they are done within the USA and are usually either victims of crime or people who are assisting in criminal investigations.

So what do you do if you get a 214(b) denial?

Normally there isn’t much we can do but, if you have been to USA before or else there is something unique in your case, we can ask the consulate to reconsider and if they are not willing and able, then we can ask the visa office in Washington, D.C. to intervene.  You can also contact your family or employer in the U.S. to contact the local Congressmen to seek their intervention.  This typically is not helpful but you can try.  If anybody from the bar or a lawyer tells you he or she can fix it, be mindful because they may not be able to.  Especially be careful when you talk with lawyers in your own country.  This makes me very nervous because we have had some cases where local lawyers in other countries did some strange stuff.  They had some hook ups with consulates and ultimately got caught.

The biggest problem is with fraud or misrepresentation.  If you make a misrepresentation in attempting to get any immigration benefit, you can be barred from entering USA forever.

Going back to 214(b) denials, you can ask the consulate to reconsider.  Reapply if you have a case that begs for a special consideration, like you’ve been to the U.S. many times.  For example, one of my friends asked me that, if his girlfriend is refused a B visa, is it okay to bring the lady in on a K-1 (fiancé visa)?  My take is do not use the fiancé visa in lieu of B-1 or B-2 visa, because if you do not have the intention to get married, the government can consider it to be fraud.  So make sure you want to get married within 90 days after they enter the U.S.

One more point -- there is a legal fiction created in U.S. immigration law about ties to your home country that says you can overcome 214(b) denial if you have ties to your home country.  That in my mind is a legal fiction.  To demonstrate ties is very difficult.  Of course, if you have family in your home country, that’s a good example of ties but to say you have property, but property can be sold, so I don’t think that’s really ties.  Having business is also not really a tie as a business can be sold.  Hence demonstrating ties to your home country is usually a difficult thing to do.

This issue has come up several times recently.  Feel free to ask me specific questions on the website, in a forum, or on a community conference call.

Hello, everyone.  This is Rajiv S. Khanna for the Law Offices of Rajiv S. Khanna, P.C, immigration.com.  We are discussing with some of our clients the issue of what to do now that the H-1 quota has expired.  What are my options?

Well we can look at the options two ways or three ways.  Actually, there are several variables.

Variable one:  Can I continue to work?  The answer is yes, if you have the STEM extension option.  In this case, we are working towards 17 months of the STEM extension anyway.

What is the STEM extension?

Some people who are F-1 OPT can get further 17 months of OPT if they are in the discipline of Science, Technology, Engineering or Mathematics (STEM).  Any one of these disciplines, if you are in STEM, you can get a further 17-month extension.  

So can you continue to work?  One way is STEM extension.  If that is not an option, some people go back to school and they get something called CPT (Curricular Practical Training).  That is an option that I don’t advise.  Why?  Because this option has come under the gun.  USCIS has become very suspicious of it because the regulations say, if somebody wants to get a CPT by going back to school in the first semester itself, then the curricular practical training, the CPT, must be integrally related to the education.  In other words, you cannot really get a good education without that CPT and because of the “misuse” or the perceived misuse that government sees, they have come down hard upon universities that have been giving CPTs too liberally.  So CPT has become a suspect option, unless you are going to join a university that is well-recognized, a good university, or a good school that is fully accredited.  And I actually have a video on our website, our blog, on how to see if the school is accredited.  (http://www.immigration.com/media/eb2-green-card/accreditation-distance-…)

So 17-month STEM extension, CPT not recommended, but possible.  You can, of course, go back to school and stay until you are ready to file for the H-1 again.  If you have an option, for example, if your spouse is on H-1, you can convert to H-4, or L-2 if your spouse is on L-1.  That would be another option.  One option is to go back to your home country if the work can be outsourced to you.  It is perfectly legal for you to work for your employer from your home country and they can pay you either as an independent contractor or on a project basis or even as an employee.  You can work out the details with your CPAs, but that is certainly a possibility.

Now the last option that I see is there is a very fine distinction between what jobs are quota and what jobs are quota-exempt.  The interesting thing is the way that the government looks at it is even though the employer is a quota employer, but if the job is quota-exempt, you are not subject to the quota.  Let’s take an example of a quota-exempt job.  If you are working for a university in a research position or any academic position, you are quota-exempt.  But what if your employer places you to work in a university research facility?  Because the job is quota-exempt, that H-1 will be quota-exempt, even though your employer is a quota employer.  So look for a job that is quota-exempt.  That’s another possibility.

Those are the options as I see them.

Question--How do they go about applying for a STEM extension?

The way it works is the company that you are working for has to agree to be e-verify compliant.  That means they open an account with the government office for being an e-verify company.  You sign a bunch of contracts with them and you say every person that we hire, we will run them through the e-verify program, which is basically a way of ensuring that they have proper authorization to work in the US.  For larger companies, I would probably be reluctant to go e-verify, especially if you are a multi side company that has its own problems, so we need to assess that very carefully.  For smaller companies and one-side companies, it’s much easier to go through e-verify.  It’s not a problem.  E-verify basically involves agreeing to go through verification of every employee you hire from now on.  You have put them on the e-verify database. 

To get the STEM extension, they don’t have to go back to school.  They notify the school office, and the school issues new paperwork based on their existing paperwork.  They don’t have to go back to school.

If you already have your STEM extension, after that expires, you could take classes for CPT, work from your home country, try to convert to a spousal visa, find a quota-exempt job, or wait for next year’s quota.

One more question that people have asked me.  Is it okay for me to volunteer?  What if I want to work, but I don’t want to get paid for it?  I don’t want to lose all this experience that I have.

The answer is that that’s risky.  However, the way it works is, if the person volunteers, let’s assume they’re on H-4.  They work, but they neither expect to be paid nor do they have any benefits coming to them.  Health insurance, for example.  Then, it’s okay to volunteer.