Sindell Law Offices E-Min Newsletter (Vol. 10) - English Article #39
From time to time, we receive inquiries about non-immigation visas from clients and prospective clients asking the following questions. We decided to compile the most popular ones and print the answers here for everyone's reading pleasure.
1. My F-1 visa stamp is expiring this June. I am still a student and have a valid I-20 form. Do I have to leave the country and obtain a new F-1 visa stamp in June? If I don’t will I become illegal?
ANSWER: No, a visa stamp is simply permission to enter the United States. The actual document which determines your stay in the United States is your I-94 form. Since your I-94 form states that you can stay until the expiration of your I-20 (notation D/S), you can stay in the U.S. legally until such time as you complete your studies. If you do happen to leave the country after this June, you will need a new F-1 visa stamp to return.
2. I am the spouse of an H-1b visa holder and I currently hold an H-4. I heard that I could obtain a work permit (EAD), Is this true?
ANSWER, No, generally spouses of work visa holders do not have permission to work. Several years ago, the USCIS made an exception for spouses of E visa and L-1 visa holders allowing only those spouses to apply for work permission on a form I-765. H-4 visa holders are not entitled to work.
3. I just got word from my employer that I am being laid off. I am currently the holder of an H-1b visa. I heard that I can stay legally in the U.S. for 60 days, is this true?
ANSWER. No, there is no "grace period" for H-1b visa holders. The USCIS has said that technically, the day you lose your job, you are out of status. We normally advise people to either leave the country as soon as possible, so as not to accrue unlawful presence in the U.S. or to find a new job as soon as possible. If you find new employment immediately, say within 30 days or so, the USCIS may use its discretion in granting an extension of status in your case. Please note that unlawful presence of less than 180 days does not have any specific penalties attached. However, it may complicate later petitions at a US embassy abroad, especially if the visa you are applying for requires that the applicant have a clear intent to depart the country upon the completion of the activity and not have "immigrant intent"
4. I am an artist and my friend told me that I can apply for an "artist" visa. Is there such a thing?
ANSWER, No. There is no such visa known as an "artist" visa. What people generally refer to as an "artist" visa is an O-1 visa. This a visa for persons with extraordinary ability in the sciences and arts, and in effect, may apply to many artists. One of the common misconceptions people have is that if they call themselves an artist, then they can obtain an artist visa. Generally, an O-1 visa is issued to someone who is at the very top of their field, someone who has article written about them, obtained awards in their field, and are highly praised by peers and leaders in their industry. The O-1 visa is not limited to artists, but an artist may qualify depending on their qualifications.
5. I heard that if I buy property or invest a lot of money in the U.S., I can obtain an E-2 visa, is this true?
ANSWER: No. It is much more complicated than this. Many people have a common misconception that if they put $300,000 in a bank account, they have "invested" in the United States and therefore qualify for an E-2 visa. First, assuming that you are a Japanese national, your investment would have to be "substantial" for the industry in which you are planning to invest. Moreover, the investment must be an active investment. The money has to be irrevocably committed to the investment, basically, the $300,000 has to be spent or about to be spent (with proof of contracts indicating the expenditure). If $300,000 is a sufficient amount for the industry, the investor needs to show some experience in a managerial or executive capacity and a lengthy application must be submitted to the U.S. embassy in Tokyo or Osaka or to the USCIS, depending on the situation.
6. I am in the United States on a tourist visa (no visa, Visa Waiver Program). I heard that if I go to Canada or Mexico, I can come back to the U.S. for another 90 days, is this true?
ANSWER: No, generally, any person going to Canada or Mexico for less than 30 days is readmitted on the same I-94, so if you leave, say, after the 60th day you are in the U.S., you would merely be admitted for the 30 days left on your I-94. If your I-94 is expiring, it is really up to the border patrol to determine if they will admit you into the United States. It depends on if you can convince the CBP that your intent to re-enter is as a tourist, even though you have already spent 90 days in the U.S. as a tourist. We have also heard of persons obtaining new I-94 cards, even though the I-94 is not expired. Although this is not the official policy, the ultimate discretion lies with the CBP and if you convince them or if by error, you do receive a new I-94 with 90 days, consider yourself lucky, since it is far from automatic.
