B2 visa extension of stay

I came to the US from Jamaica on a visitor visa to spend some time with my daughter and see my grandchildren. Three months ago month my daughter slipped on ice and broke her leg and now she relies on me to move around and accompany her when she goes out. The doctor treating my daughter said her leg will take two more months to heal but only one month remains on my I-94 form.

How do I extend my stay in the United States?

To maintain your non immigrant status you must file an application for extension of stay before your current period of authorized stay, on your I-94, expires. It is important that you file immediately. If you fail to apply for an extension before your current authorized stay expires, in the future you could be denied readmission into the United States or a green card.

The application process to extend your stay depends on the type of non-immigrant status that you have. In your case because you have B2 non-immigrant status you must use USCIS Form I-539 with the required fee and supporting evidence. The application must be made to the USCIS service center with jurisdiction for your area.

Required documentation

Original or Photocopy (front and back) of your I-94 Arrival-Departure document. If your I-94 is lost you must file and submit USCIS Form I-102 with the appropriate fee together with Form I-539.
Photocopy of your passport showing that it is valid for the period of your intended stay.
Written statement/letter

You must also submit a written statement explaining in detail;

The reason for the extension,
Departure arrangements, and
Any effect the extension would have on your permanent residence and employment in Jamaica.

I came to the US from Jamaica on a visitor visa to spend some time with my daughter and see my grandchildren. Three months ago month my daughter slipped on ice and broke her leg and now she relies on me to move around and go with her when she goes out. The doctor treating my daughter said her leg will take two more months to heal but only one month remains on my I-94 form.

How do I extend my stay in the United States?

To keep your non immigrant status you must file an application for extension of stay before your current period of authorized stay, on your I-94, expires. It is important that you file immediately.

The application process to extend your stay depends on the type of non-immigrant status that you have. In your case because you have B2 non-immigrant status you must use USCIS Form I-539 with the required fee and supporting evidence. You should direct the application to the USCIS service center with jurisdiction for your area.

Required documentation

  1. Original or Photocopy (front and back) of your I-94 Arrival-Departure document. If your I-94 is lost you must file and send USCIS Form I-102 with the proper fee together with Form I-539.
  2. Photocopy of your passport showing that it is valid for the period of your intended stay.

Written statement/letter

You must also send a written statement explaining in detail;

  1. The reason for the extension,
  2. Departure arrangements, and
  3. Any effect the extension would have on your permanent residence and employment in Jamaica.

Supporting evidence

A signed affidavit from your daughter explaining why you are seeking to delay your departure would be persuasive. Your daughter should also get a letter written by a recognized, licensed health care practitioner treating her. The practitioner should write the letter on his or her own professional letterhead stationery and it should state the specific (explained) medical condition that has caused you to seek an extension to spend more time with your daughter and grandchildren.The letter should also specify the dates involved in your daughter’s injury and that the practitioner expects the medical condition to end at a specified time.

You should also send a copy of your return ticket to Jamaica showing the date of your intended departure. You should show that you have funds to support yourself for the period of the intended stay in the U.S. If you have a job in Jamaica you should send a letter from your employer temporarily excusing you from work for the extra time you will spend in the United States.

What if authorized stay has expired?

The USCIS may exercise discretion to excuse your failure to apply before the end of your authorized when;

1.the delay was due to extraordinary circumstances beyond your control

2. the delay is right for the circumstances

3. you have not violated your non-immigrant status in other ways (e.g. unauthorized work)

4. you are still a good faith visitor to the United States, and

5. you are not in deportation or removal.

Processing time and effect of prompt application

The processing time for I-539 applications can take up to 3 -4 months. The time in which your application is pending will continue your authorized stay in the United States. The current filing fee for a Form I-539 application is available here. If USCIS approves your extension of stay application it will do so in six month increments.

Online Resources

B Visa Refusal Rates by Country

 

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What is an H1B visa?

H-1B status is a temporary work status for foreign workers performing services in a specialty occupation requiring the specialty worker to possess a US bachelor’s degree or its equivalence.
The H-1B application process begins when a US employer files a Labor Condition Application or LCA Form ETA – 9035 with the Department of Labor. Among other things, the LCA must list the location(s) where the work will actually be performed and the wage rate.

H-1B status is a temporary work status for foreign workers performing services in a specialty occupation or in a Department of Defense (DOD) administered cooperative research and development project or co-production project, or for fashion models with national or international acclaim. Most H-1B petitions however are for specialty occupations requiring the specialty worker to possess a US bachelor’s degree or its equivalence. 

H1B Biotechnology worker
H1B worker

If you are a foreign professional (e.g. computer systems analysts and programmers, physicians, professors, engineers, and accountants), an international student nearing graduation, or a US employer with a special need for foreign workers this H-1B information may be of particular interest to you.

The H-1B application process begins when a US employer files a Labor Condition Application or LCA  Form ETA – 9035 with the Department of Labor. Among other things, the LCA must list the location(s) where the work will actually be performed and the wage rate. The prospective US employer should print and sign a hardcopy of the electronically filed and certified LCA and maintain a signed hardcopy of this LCA in a public access file.

The petitioner should then file a completed and signed H1-B petition on USCIS Form I-129 on behalf of the alien beneficiary (the prospective specialty worker). The petitioner should also complete and sign H-Classification Supplement to I-129 and H-1B Data Collection and Filing Fee Exempt Supplement and include supporting documentation. These supporting documents should include a copy of the beneficiary’s final transcripts, or documents showing the beneficiary’s education and experience, detailed job description, the US employer’s company articles, financial statements and marketing brochures. All these documents together with a signed hardcopy of the LCA should be sent to the correct USCIS Service Center in support of the I-129. A duplicate copy of the H-1B petition (identified as “COPY”) should also be mailed if the non-immigrant is seeking or may seek consular processing outside the United States.

A properly executed form G-28 must also be submitted if the prospective employer is being represented by an attorney. The petition must be accompanied by the correct filing fees to retain the original filing date. A completed and signed USCIS Form I-907 and the correct filing fee should also be included if the prospective employer is requesting premium processing to expedite the USCIS adjudication of the H1B petition.

The approved H-1B petition will then be sent to the Kentucky Consular Section for Consular for processing of an H-1B visa abroad at a U.S. consulate where the H-1B beneficiary will be interviewed.

An alien may be admitted to the United States in H-1B status for a maximum period of six years; however, each H-1B petition may only be approved for a maximum period of three years. However, an H-1B holder performing DOD work may be admitted for a maximum of ten years with each such H-1B petition being approved for a maximum of five years.

 At the end of the 6 year period the alien must either change to a different status, if eligible or depart the United States. A former H-1B holder who departs the United States for 1 year may be eligible for re-admission for a maximum period of 6 years.

As there are very detailed laws and regulations related to the petition and application for H-1B status, interested persons are strongly advised to seek the services of a U.S. licensed attorney specializing in Immigration & Nationality law for professional advice in specific situations.

Attorney Gary Goodin, for Immigration Navigator ™

Copyright © 2011, the Immigration Navigator

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US Immigration and same sex or transsexual marriages

It is the federal definition of marriage under The Defense of Marriage Act (DOMA), that determines whether a same sex or transsexual marriage is valid for immigration purposes, not state law.
Any relative petition (I-130 petition for alien relative, I-129F Petition for Alien Fiancé (e)) that is based on same sex marriage will most likely be denied. Still there are several instances where same sex relationships could be potentially beneficial in an immigration context.

Marriage Immigration
Immigration through Marriage

It is the federal definition of marriage under The Defense of Marriage Act (DOMA), that determines whether a same sex or transsexual marriage is valid for immigration purposes, not state law.

Section 3 of DOMA, a federal statute, explicitly defines ‘marriage’ and ‘spouse’ as follows;

“ . . . [T]he word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”

Furthermore under the same section of DOMA, the US Congress mandated that rulings, regulations and interpretation of administrative bureaus and agencies of the United States (e.g. the Bureau Citizenship and Immigration Services or USCIS) must be in accordance with the definition of ‘marriage’ and ‘spouse’ above as a union between one man and one woman.

Validity of same sex marriages for immigration purposes

For this reason any relative petition (I-130 petition for alien relative, I-129F Petition for Alien Fiancé (e)) that is based on same sex marriage will most likely be denied or put on hold pending final guidance relating to distinct legal issues involving the Defense of Marriage Act.

The Defense of Marriage Act has been criticized as unconstitutional on the grounds that it is harmful discrimination against same sex couples that is unreasonable and devoid of a substantial relationship to an important governmental interest. Additionally, the Department of Justice has refused to defend DOMA in litigation before the Second Circuit Court of Appeals because the President and the Department of Justice consider Section 3 of DOMA to be unconstitutional.

So, pending either Congressional repeal of DOMA or a Supreme Court decision declaring the Act as unconstitutional, the federal definition of marriage, as a union of one man and one woman, will be enforced.

There are however several instances where same sex relationships could be potentially beneficial in an immigration context. This will be the subject of a future article.

Validity of transsexual marriages for immigration purposes

Transsexual marriages are marriages between a post-operative transsexual and a person of the opposite sex. Under federal law a transsexual marriage may be valid for immigration purposes if it is considered by the State in which it was performed as one between two individuals of the opposite sex. The petitioner must show by a preponderance of the evidence that;

  1. One of the claimed spouses has, in fact, undergone sex reassignment surgery; AND
  2. That person has taken whatever legal steps exist and may be required to have the legal change of sex recognized for purposes of marriage under the law of the place of marriage; AND
  3.  The marriage is recognized under the law of the jurisdiction where it occurred as a legally valid heterosexual marriage.

For an I-129F petition for an Alien Fiancé (e) the petitioner must show by a preponderance of the evidence that;

  1. One of the claimed spouses has legally changed sex, AND
  2. The proposed marriage will be recognized under the law of the jurisdiction where it will occur as a legally valid heterosexual marriage.

 If the State (or foreign country) recognizes the change in sex of the post-operative transsexual and the transsexual marriage is considered valid where it occurred (or will occur), then the USCIS will recognize it as valid for immigration purposes. Matter of Lovo-Lara, 23 I&N Dec. 746 (BIA 2005).

If you have any questions concerning the immigration benefits that can be derived from a same sex or transsexual marriage or relationship, please consult an immigration attorney of your choice.

Attorney Gary Goodin, for Immigration Navigator ™

Copyright © 2011, the Immigration Navigator

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U Visas, Application Information (Part 1 of 2)

Any non-citizen of the United States – Green card holders, those with non-immigrant status, in or out of status, and undocumented persons may apply for a U Visa provided they are victims of qualifying criminal activity and meet other qualifying requirements. The applicant need not be present in the United States at the time he or she applies. But the non-citizen must have suffered substantial physical or mental abuse as a result of qualifying criminal activity.

What is a U Visa?

A U Visa is a non-immigrant visa available to non-citizens who are victims of certain qualifying criminal activity including domestic violence in the United States.They must have been helpful or are likely to be helpful to investigators or prosecutors of criminal activity. It is not enough to be a helpful witness the applicant must be the victim of certain qualifying criminal activity.

What are the benefits of U Visas?

U Visa holders are granted Employment Authorization Documents (EAD) allowing them to work legally in the United States.

For those green card holders who find themselves in removal proceedings, a U visa may allow them to remain in the United States. This potential benefit is a very important one that may be overlooked.

U Visas are normally issued for four years. The spouse (at the time of application) and children of the principal applicant (even unborn at the time of application) may be eligible for derivative U visa status.

Who qualifies for a U visa?

Any non-citizen of the United States – Green card holders, those with non-immigrant status, in or out of status, and undocumented persons may apply for a U Visa provided they are victims of qualifying criminal activity and meet other qualifying requirements. The applicant need not be present in the United States at the time he or she applies. But the non-citizen must have suffered substantial physical or mental abuse as a result of qualifying criminal activity.

What is qualifying criminal activity?

  1. rape;
  2. torture;
  3. trafficking;
  4. incest;
  5. domestic violence;
  6. sexual assault;
  7. abusive sexual contact;
  8. prostitution;
  9. sexual exploitation;

10.  female genital mutilation;

11.  being held hostage;

12.  peonage;

13.  involuntary servitude;

14.  slave trade; kidnapping;

15.  abduction;

16.  unlawful criminal restraint;

17.  false imprisonment;

18.  blackmail;

19.  extortion;

20.  manslaughter;

21.  murder;

22.  felonious assault;

23.  witness tampering;

24.  obstruction of justice;

25.  perjury;

26.  attempt, conspiracy, or solicitation to commit any of the above mentioned crimes, or

27.  any similar criminal activity.

There is no requirement that the criminal activity of which the non-citizen is a victim be the same one as that being investigated by law enforcement. In the midst of an investigation into embezzlement (a non-qualifying criminal activity), for example, the non-citizen witness may become the victim of threats intended to force her not to cooperate with investigators – obstruction of justice (a qualifying criminal activity).

What should I do if I suspect I qualify for a U Visa?

Any non-citizen who suspects that he qualifies for a U visa should consult an Immigration Attorney for legal advice based on his specific circumstances.

A non-citizen  with a pending removal proceeding who suspects that she qualifies for a U visa based on being a victim of qualifying criminal activity should bring this information to her immigration attorney at once.

U Visas, Application Information (Part 2 of 2) will deal with the Certification Requirement and the application procedure for a U-Visa.

Attorney Gary Goodin, for Immigration Navigator ™

Copyright © 2011, the Immigration Navigator

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The Green Card Marriage Interview – green card fraud

After a US Citizen petitions for a non-immigrant spouse to get a US green card, the United States Citizenship and Immigration Services will often schedule a green card interview for the couple at a local service office. The subject of this green card interview is to decide whether the marriage is a good faith, or bona fide marriage.

What is a Good Faith Marriage?

A good faith marriage is legally valid according to the jurisdiction where the couple exchanged vows. Additionally, it cannot violate the laws of the United States (e.g. a polygamous marriage will not confer an immigration benefit) and was not entered into solely to get a US green card. The issue in the interview is whether a good faith marriage exists and not whether the marriage is practical (whether it will last a long time).

What is a Sham Marriage?

After a US Citizen petitions for a non-immigrant spouse to get a US green card, the United States Citizenship and Immigration Services will often schedule a green card interview for the couple at a local service office. The subject of this green card interview is to decide whether the marriage is a good faith, or bona fide marriage.

What is a Good Faith Marriage?

A good faith marriage is legally valid according to the jurisdiction where the couple exchanged vows. Additionally, it cannot violate the laws of the United States (e.g. a polygamous marriage will not confer an immigration benefit) and was not entered into solely to get a US green card. The issue in the interview is whether a good faith marriage exists and not whether the marriage is practical (whether it will last a long time).

What is a Sham Marriage?

A marriage without any intent, or “good faith,” to live together as husband and wife but was merely a scheme to get around the immigration laws is a sham marriage. The USCIS does not recognize a sham marriage  and the non-immigrant will get no immigration benefit from such a marriage.

Factors that raise suspicion of a Sham Marriage during a green card interview.

The factors that raise suspicion of green card fraud and may lead to in-depth questioning, a field examination or an investigation include:

1.         Large disparity of age;

2.         Inability of petitioner and beneficiary to speak each other’s language;

3.         Vast difference in cultural and ethnic background (times however are changing);

4.         Family and/or friends unaware of the marriage;

5.         Marriage arranged by a third-party;

6.         Marriage contracted immediately after the beneficiary’s apprehension or receipt of notification to leave the United States;

7.         Marriage entered into immediately following entry into the US

8.         Discrepancies in statements on questions for which a husband and wife should have common knowledge;

9.         The couple has not lived together as husband and wife since marriage;

10.      The beneficiary (alien) is a friend of the petitioner’s family;

11.       The US Citizen petitioner has filed earlier petitions for aliens, especially prior alien spouses.

The Good News

While any of these factors merely raises suspicion of green card fraud, this does not mean that a sham marriage will be found. The United States Citizenship and Immigration Services may not conduct in-depth questioning, a field examination or an investigation.  The couple, however is responsible for proving good faith intent with supporting documents during the green card application and during the interview (more on this in a later post).

Again the green card marriage interview questions are not about whether your marriage is perfect. The sole purpose of this green card interview is for an adjudicator to decide if the marriage is legally valid and not entered into solely for obtaining a US green card. Though living and working in the US is highly desirable to many you should not enter a marriage for the sole purpose obtaining a green card.

If you have questions about adjustment of status and the green card process, consult an immigration attorney who can advise you based on your unique facts.

Immigration Attorney Gary Goodin

Copyright © 2011, The Immigration Navigator

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