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Immigration FAQ
Drunk Driving Can Get You Deported
By
Anu Gupta
If you live in Texas, hang out with
friends and decide to have a few drinks, don’t drive.
If you do, you may not only be fined and have your driving
privileges suspended or revoked, you may find yourself on
a flight back home. Recently, two courts in Texas ruled that
driving while intoxicated is an offense for which an individual
holding a non-immigrant visa may be deported. Considering
the trend toward stricter enforcement of DWIs (driving while
intoxicated), other states are bound to follow suit.
Under
the Immigration and Nationality Act (INA) an alien committing
an aggravated felony may be deported. The INA provides a long
list of aggravated felonies in which "crimes of violence"
is one. A crime of violence is defined as a felony that "by
its nature, involves a substantial risk that physical force
against the person or property of another may be used in the
course of committing the offense." This definition has
two parts: One, crimes in which force is used are crimes of
violence; and, Two, crimes, in which there is a risk that
physical force may be used while the crime is being committed
are crimes of violence. For example, if you were standing
in a grocery store and someone points a loaded gun at you
to rob you, would be a crime of violence. His pointing a gun
involves a risk that while he is committing the crime of robbing
you, you may be injured by the physical force of the bullet
hitting you. Thus any felony where there is a risk that force
may be used becomes a crime of violence and can lead to deportation.
In
a recent case decided by the Board of Immigration Appeals
in Texas, ( In re Puente-Salazar), the judge decided
to look at the elements of the offense of DWI as defined by
Texas state laws to decide whether Mr. Puente-Salazar had
committed a crime of violence. Under Texas law DWI is defined
as "operating a motor vehicle while intoxicated".
The Board decided that Mr. Puente-Salazar did in fact commit
a crime of violence as the elements of DWI (1. Operating a
motor vehicle, and 2. While intoxicated) did not require that
he have used force. The mere fact of operating a car while
intoxicated created a "substantial risk" that physical
force would be used. Using similar reasoning, the Fifth Circuit
in Camacho-Marroquin v. INS held Mr. Camacho-Marroquin
had committed a crime of violence. The court further stated
that the number of annual fatalities and property damage caused
by people driving under the influence makes it a crime of
violence.
What
this means for non-immigrant persons is that if they are on
the road speeding, or get pulled over for a minor traffic
offense and they’ve had one drink too many, even if no
one is hurt, even if it is only a minor traffic violation,
they may potentially face deportation if they get convicted
for DWI.
Considering
that the states are currently making their DWI laws tougher
by decreasing the legal limit of alcohol content found in
the blood to convict for DWI, and that the procedure to appeal
DWI convictions is very tough, it is advisable not to mix
driving and drinking: the consequences may not only be injury
and a trip to the local jail-house, you may be on a flight
out of the country leaving behind the life you have worked
so hard for.
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What if You Overstay Your Visa?
By
Anu Gupta
If
you are a temporary resident in the United States, watch out
for your visa deadlines. If you overstay your visa by even
a single day, it may cause you not only anxiety, but may force
you to hastily depart to your home country and cause you needless
hassle of having a new visa reissued to you at an Embassy
or Consulate located in your home country.
If
you are a non-immigrant resident, living in the US, you were
issued two things prior to your entry into the US: a visa
and a I-94 card. A visa is your entry into the US. It is issued
by a US Embassy or Consulate located outside the US, and is
based on your purpose in entering the US. Typically, it is
stamped into your passport. For instance, if your purpose
in entering the US is to work, you will have a H-1 visa stamped
on your passport, for an inter-company transferee, a L-1 visa
will be stamped.
The
second document, a I-94 Departure Card, is issued to you at
the Port of Entry, (the airport or seaport where you land
into the US). The I-94 specifies the length of your present
stay in the US. For example you may have a 5-year multiple
entry visa to visit the US (B-1 category) but your I-94 may
state 6 months. Thus you may enter the US any time for the
5 years stated, but during your current visit, may only stay
6 months.
If
you are in the US after the 5-year period stated on your visa,
or if you stay more than 6 months during your current visit,
you have overstayed. Similarly if you are on a H-1B or L-1
and your visa states 1 or 3 years, and you are physically
present in the country after the stay expires, you have overstayed.
If you entered the US working for one employer and then switched
jobs, you will be out of status unless your new employer has
already received a H-1 approval for you soon after you left
the first employer.
Until
the passing of the Illegal Immigration Reform and Immigrant
Responsibility Act (IIRAIRA) (effective September 30, 1996),
if a non-immigrant visa holder overstayed his visa, he could
leave the country, go to Canada or Mexico and return with
a new visa. Now the penalties are a lot stiffer and harsher..
For one, the over-stayer’s visa is void if he
overstays by even a single day. What this means is that the
over-stayer will be required to leave the US and to enter
only after acquiring a new visa. Secondly, unlike the pre-
IIRAIRA days, he can no longer visit Canada or Mexico to get
a new visa, unless certain, very limited, specified, extraordinary
circumstances exist. For the vast majority of the people who
over stay, their only choice will be to return to their home
countries and request an Embassy or Consulate there to issue
a new visa. If the person has a multiple entry visa, he cannot
just go back and return on his next trip. He would still be
required to get a new visa issued. Besides the time and expense
involved in returning to his home country, it could greatly
inconvenience him. Imagine having to pull children out of
school right before important examinations for an international
trip. Or imagine having to forego the essential business meeting
because you had to leave the country. Moreover, for people
who have been present in the US before, the penalties are
even harsher: not only are violations occurring after of IIRAIRA
was enacted (September 1996) taken into account, but any status
violation, even if it may have occurred years ago, may trigger
this harsh penalty.
The
best solution to the problem of overstaying is precaution.
Keep careful track of the dates your and your family’s
visas and I-94 expire. Sometimes your family may have different
deadlines than you do, especially if they joined you later
or changed their visa category after coming to the US. Apply
for the appropriate extensions and changes of visa well before
the visa expires. In the case that you missed a deadline,
immediately consult counsel. Depending on your reason for
missing the deadline, you may still be allowed a trip to the
US Embassy/Consulate at Canada or Mexico to correct the oversight,
or your country may allow you to file for a new visa by mail.
A good attorney will be able to advice you of what your best
option would be.
Questions and Answers
Question: I am a doctor from India. I recently got married
to a H-1B holder and immigrated to the US on H4 status. I
want to continue working in the US. I have been told that
to work I should apply for a H-1B instead of a J-1 visa as
the J-1 visa will force me to leave the country after my residency.
Is this true? Can you please clarify.
Anu Gupta Answers:
As a foreign medical graduate, you may qualify for either
H1B or J-1 visa depending on your own qualifications and whether
you have passed the required examinations here in the United
States. The H1B visa is preferable to the J-1 visa, however,
if you have recently arrived in the US, you may not qualify
for it.
If your aim is to teach or to perform research and only incidental
patient care is involved, you must show that you have received
a medical degree and are licensed to practice as a doctor
in your home country. After this, you must obtain the appropriate
license from the appropriate state board where you intend
to work.
On the other hand, if your intention is to engage in clinical
practice or engage in graduate medical training or a residency
program, you must generally meet the following requirements.
1. You must pass the appropriate credentialing examination.
FLEX , I and II, NBME, Parts I, II and III; USMLE, Steps 1,
2 and 3.
2. ECFMG
3. A full and unrestricted license to practice medicine in
a foreign country or graduation from a foreign medical school;
and
4. A license or other authorization to practice medicine in
the state in the United States where you will be working.
Due to different state law requirements, it is sometimes difficult
to pass all the required examinations without first undergoing
a residency program in the United States. If you have not
cleared all the examinations, you may qualify for a J-1 visa
program.
A J-1 is available to persons whose purpose is to teach, research
or train in the US. To qualify you must find an exhange program
to sponsor you. If you are interested in research and non-clinical
activities, universities, research facilities of pharmaceutical
companies may be interested in sponsoring you.
If you wish to pursue clinical work, you must be sponsored
by the Educational Commission for Foreign Medical Graduates.
To start a residency program in the United States on a J-1
visa, you do not need to pass all the tests required for H1B
visas. As long as you have passed Step I and II of USMLE,
you qualify for a J-1 visa.
However, if you choose a J-1 visa, or if you are unable to
qualify for a H1B and need to take a J-1, you will be subject
to a 2 year home residency requirement. This means that you
must return to your home country for a period of two years
after the completion of your program before you may apply
for change to another status. What this means is that you
will not qualify to apply for a H1B, L-1 or to apply for a
green card. To be able to waive this home residency requirement,
you will need to request for a waiver. The most common waiver
is by an interested government agency seeking to fill positions
at medically underserved, mostly rural areas or for research
purposes.
Question: I am a doctor from India. I recently
got married to a H-1B holder and immigrated to the US on H4
status. I want to continue working in the US. I have been
told that to work I should apply for a H-1B instead of a J-1
visa as the J-1 visa will force me to leave the country after
my residency. Is this true? Can you please clarify.
Question:
I have a concern regarding wage determinations for Labor Certification.
My attorney checked the OES (prevailing wages) for petitions
I wanted to file on behalf of my employees. The prevailing
wages are much higher than I expect to pay, and much higher
than what similar employees are paid industry wide. Do I need
to use the OES wage determination that the Department of Labor
uses? What are my options?
Anu Gupta Answers:
OES determinations are one method of determining prevailing
wages. You do have other options. Under a recently issued
General Admission Letter (No. 100), OES wages are used to
determine prevailing wages except that an employer may use
a private survey provided the survey meets the seven criteria
outlined in item J of GAL 2-98.
These seven criteria are as follows:
(i) The data must have been collected within 24 months.
(ii) If a published survey, the survey must have been published
within 24 months.
(iii) The survey must reflect the area of intended employment.
(iv) The employer job description must adequately match the
survey job description.
(v) The survey must be across industries that employ workers
in the occupation.
(vi) The wage determination must be based on an arithmetic
mean.
(vii) The survey must identify a statistically valid methodology
that was used to collect the data.
Because there are many ways to categorize and calculate salaries,
the Department of Labor makes available the option of using
a private survey. If your attorney advises you, the employer,
or if you elect to use a private survey, SESAs and regional
offices should accept it and review it according to the seven
criteria. If the alternative survey meets the seven criteria,
it should be accepted.
Please note that you will be allowed to use this survey for
the one Labor Certification (LC) that you have filed. It does
not determine the new wage for that occupation in the given
area. If you are filing another LC or if you are some other
employer is filing a LC they will need to use either the OES
wages or submit another survey for review. If the Department
of Labor rejects one survey, you may submit a new survey.
If you decide to submit a new survey, there is no requirement
that this survey should mirror the OES survey. You are allowed
to have a survey that has different geographic regions or
cross-references. Moreover, as long as the seven criteria
(listed above) are met, there is no minimum sample size of
the survey. The size and sample will depend upon the occupation,
the area of intended employment, and the area surveyed. As
long as the sample represents a sample of workers in the occupation
in the area of intended employment, it should be valid.
Some private surveys will not differentiate types of positions
within a given occupation. They will list engineers as software
engineers, electronic engineers and mechanical engineers.
Under current standards, it is permissible for an employer
to submit such surveys. However, in such a situation, the
survey should also not provide usable wage rates for specific
occupational classification. For instance, if the job is that
of a software engineer, a survey for "engineers"
is acceptable if it does not include usable wage data for
the specific occupation of software engineers. There is no
requirement that a private survey include a cross sample of
occupational types. There simply must be an adequate match
of job duties, not a precise and exact match.
The survey is also not required to reflect the same exact
geographical area as the OES survey. If your survey is limited
to the area of intended employment, it meets the geographic
requirement. If the survey is broader than the area of intended
employment, you must establish that there were not sufficient
workers in the area of intended employment. It is not wise
to expand the area beyond that which is necessary to produce
a representative sample.
Question:
My friend recently started an IT consulting company and has
offered me a 50% partnership in the company. I am on a H1B1
right now with another company. Can I accept the 50% partnership
and work for my friend's company and have my visa transferred
to our own company?
Anu Gupta Answers:
You are looking at two different issues here. One would be
whether you could own stocks in a company while you are on
a H1B visa. The other issue is whether the company in which
you own stocks sponsors you for a H1B visa.
As far as the first issue is concerned, I would say, yes,
an H-1B holder can, under most circumstances, own stocks in
a company. There are various forms under which a person can
"do business" in the US. While laws in each state
differ, there are some commonalties in these laws. Every state
allows the formation of a general-purpose corporation. For
tax purposes, this is given a subchapter "C" classification.
The people who own stock in the corporation own a corporation.
Under current laws there is no bar disallowing a person on
an H-1 status from owning stock in a "C" corporation.
In most circumstances, there is no limit to how many stocks
he is allowed to own in the company. If the person owns a
majority of stocks in the corporation, then he is the majority
shareholder of the corporation. If he owns all the stock in
the corporation, then he is the sole shareholder. In both
these situations, he decides who the directors and officers
of the corporation are.
The other, more problematic issue is whether the company in
which he owns stock can sponsor him for an H-1 visa. Under
current immigration rules, a person cannot form a company
solely for the purpose of sponsoring his non-immigrant visa.
What this means is that if he is forming a company just to
be able to live in the US, then his visa will not be allowed.
This may happen when the company does not have sufficient
start-up funding, or when the stockholder is the sole employee
of the company, or when he is the person making the decision
to hire himself. INS will look very closely at a visa filed
by a start-up company to determine how large the operation
is, what its funding is and how solid its base is.
In most cases, the minimum that would be required to sponsor
a visa for the stockholder of the company would be sufficient
capitation in the company. This would include enough money
to pay all the bills, the employee's current salary and all
related costs. Another factor that INS would look into would
be who would sign the paycheck every month. If the person
is writing his own paycheck, then in most events, there is
no genuine corporate structure and INS will reach the conclusion
that the corporation was formed to process the stockholder's
visa. It will deny such a petition. A related issue would
be how many employees the corporation has. If there are only
one or two employees, then it is most likely that the corporation
was formed to sponsor the visa. Again, INS would most likely
deny such a petition.
There are methods by which you may be a stockholder and have
your visa sponsored by your company. A few things to consider
would be to increase your funding. Having money in the bank
is not the only way to do this. You can show contracts with
other companies requesting your services, you can show letters
from investors willing to provide you with capital in the
future, or you can show letters from possible investors expressing
an interest in being associated with your corporation. All
of the above would increase the possibility of your being
able to get a H-1 through your company. Similarly the other
requirements can also be met to prove to INS that you are
genuinely interested in doing business in the US and that
your company was not opened solely to sponsor your visa.
Question:
I live in New Delhi. Recently I got engaged to a girl who
is a green-card holder. I have been hearing confusing things
about what I need to do and the time it will take for me to
get my green card. Can you clarify?
Anu Gupta Answers:
If your fiancée is a green card holder and you want
to immigrate to the US after your marriage, there are numerous
steps you must take. First, upon marriage, get a court license/certificate
of license as proof of your married status. Apply to the US
Embassy/Consulate of your city for your immigration as the
spouse of a permanent resident. At the Embassy, you will be
required to fill out Form I-130 and will have to provide documentation
to prove who you are and proof of your marriage. After your
application is processed, you will be put in a queue. This
queue is based on a quota system. Each country is allocated
a certain number of green cards in each family based permanent
resident category each year. Your "number" is the
date upon which the US Embassy/ INS received your petition.
This date is stamped in the left hand corner of your Notice
of Receipt that INS will send to you.
Once when your date becomes current, you
will be interviewed at the US Embassy and if your petition
is approved (if the marriage is genuine), you will be given
a "Green card". Generally it is a number, starting
with "A--" stamped on your passport at the Consulate.
You will also be given a package to be given to the INS officer
at the airport at which you land into the US. Based on this,
your "Green card" will be mailed to you at your
local US address within 6-8 weeks after you land in the US.
This green card is temporary, valid for
2 years. Within 3 months of your approaching this 2-year date,
you need to re-file for a permanent green card. You basically
must prove that you and your sponsoring spouse are still married
and living together. You and your spouse will be interviewed
by INS and you will be approved for a permanent green card
unless INS suspects fraud.
TimeLine:
After filing with INS/US Embassy or Consulate
abroad, it takes approximately 6 months for your petition
to be processed. After this period, you are in a queue. Currently
the queue for India exceeds 4 years. This means you will be
outside the US for approximately 4 years before you can join
your US spouse.
In the meantime, you will not be allowed
a non-immigrant visa because, by filing for an immigrant visa,
you have proved your intention to immigrate permanently and
have lost the non-immigration intent. Non-immigrant visa basically
includes tourist, student and business visas.
However, there may be other options that you may have available
to you:
1. If your spouse has been in the US and has been a green
card holder for close to 5 years, she/he may apply for citizenship.
Depending on which state the spouse lives in, their citizenship
may be processed in 1-3 years. If you have your petition sponsored
by your spouse (as a green card holder) pending with the INS,
it will get upgraded to the petition for a spouse of a citizen
and you will be able to rejoin your spouse shortly after they
get citizenship.
Options if you do not get married.
2. If you have a college degree and related experience, you
may be able to get employment in the US and may be able to
get a H-1B visa processed. The time for this is normally 8-12
weeks.
3. If you are currently employed by a company with offices
in the US, you may be able to get transferred to the US, again
on a H-1B visa. Again you will complete the process in 8-12
weeks in most cases.
4. If your current employer has a US office or wants to open
a US office/ or if you are self-employed, you may be able
to visit the US prospecting for business opportunities on
a L1 visa.
DISCLAIMER:
Please note that this article provides general information
only. Information presented does not constitute legal advice.
This information is not intended to create, nor does receipt
of it constitute, an attorney-client relationship. If you
have a specific legal question or are in need of legal services,
please contact us by telephone, fax or by email.Copyright
© 1999 Anu Gupta, Esquire
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