Frequently Asked Questions: Visas, Green Cards & Investment Immigration Law
As a result of assisting hundreds of immigration clients with various visa matters in past years, our immigration lawyers have compiled a list of frequently asked questions. Be sure to check back often as this list is continually updated. Still have a question? Contact us today to speak with an experienced immigration law attorney.
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Am I Allowed To Find Work If I Have F-1 Student Status?
Unless specifically authorized by US Citizenship and Immigration Services (USCIS), students with F-1 student status have limited opportunities to work in the United States.
Legally, those holding F-1 student visas may only work 20 hours a week and may only hold on-campus jobs. In addition, students with F-1 status generally may not displace employees who are United States citizens and may not work for commercial firms on campus that do not directly provide student services. If school is not in session, such as during summer months or over holidays, students can work full-time (40 hours per week) at their on-campus job.
Working on campus requires students to fill out an I-9 Employment Verification Authorization form and often requires approval of your International Student Office.
International students with F-1 status who are facing severe economic hardship may be authorized to seek off-campus employment. To qualify for this authorization, students must prove a significant change in their financial situation since their application for an F-1 visa.
International students who are out of F-1 status are not eligible for either on-campus or off-campus employment.
What is Consular Processing and Change of Status?
An import processing aspect to understand is whether your case will be filed as a consular processing or change of status petition. Consular processing refers to the step that requires a visa applicant to submit immigration forms to their home consulate or embassy, appear for a visa interview, and await a visa stamp in their passport. This process is required for almost all visa applications made while a person is located outside of the U.S.
On the other hand, the change of status process is a means by which a person already present in the U.S., on a valid non-immigrant visa, such as a B-2 visitor visa, can apply to change their visa status to another status. The key to a change of status petition is that the petition must be received by the United States Citizenship and Immigration Services (USCIS) prior to the expiration of the I-94 card issued to the applicant. As long as this is achieved, and as long as the current visa status the applicant is on allows for a change of status petition to be filed, as most do, the applicant may remain in the U.S. until a decision is rendered by USCIS.
Note that understanding the difference between a visa stamp in your passport and an I-94 documents is of utmost importance and plays a critical role in whether one must consular process or if you have the option of filing your case as a change of status petition. Read more about this in our FAQ dedicated to this issue.
Can the spouse of an O-1 Visa holder work in the U.S.?
No. Unfortunately an O-3 visa holder is not permitted to work in the U.S. Accordingly, the spouse of an O-1 visa holder must apply for some other working visa status.
Do I need a new visa if I transfer schools?
The answer to this depends on whether your F-1 student visa stamp in your passport is still valid or not. Note that this only becomes an issue if you as the student decide to leave the U.S. and you then seek to re-enter.
If you have already been admitted to the U.S. then your I-94 controls how long you can stay in the U.S., and for students it normally states D/S for duration of stay. However, if you transfer schools and you are going to travel, then read the following sections to determine if you need to go to the U.S. consulate/embassy in your home country before attempting to re-enter.
Do I Need to Go to the U.S. Consulate Before Re-Entering the U.S.?
1. Valid Visa Stamp: A student can re-enter using the old visa stamp that has the old school's name on it as long as the visa stamp is not expired and the student has a new I-20 and other supporting documentation. It is always a good idea to take financial support evidence with as well when presenting yourself at a port of entry.
2. Expired Visa Stamp: If however the visa stamp itself has expired then, as with all visa categories, the student will need to get a valid visa stamp allowing entry. This stamp will then have the new schools name on it. Have the student take the new I-20, financial support evidence, and the other documents required by the particular consulate/embassy to get the new visa stamp from consulate.
The only exception to having to present a valid visa stamp for students is if travel will be to a neighboring U.S. country like Canada or Mexico.
What Happens if I Overstay my Visa?
Although most people realize that overstaying their non-immigrant visa status is a problem, they often misunderstand how big an issue it can really be down the road. Once you overstay the amount of time allowed on your I-94, you are considered to be unlawfully present in the U.S. The general rule on visa overstays is that if you are unlawfully present in the U.S. for more than 180 days but less than 1 year consecutively, and you then voluntarily decide to leave the U.S. and attempt to re-enter on a new visa, you will be barred from admission for a period of 3 years. Further, if you are unlawfully present in the U.S. for 1 year or more consecutively, and you then voluntarily decide to leave the U.S. and attempt to re-enter on a new visa, you will be barred from admission for a period of 10 years. These are obviously very serious issues and can have a major effect on a person's future ability to work in the U.S. or even to enter merely to visit.
Additionally, once you have overstayed your visa you will need to leave the U.S. and apply for a new visa abroad if you wish to enter the U.S. on a valid visa again. This often creates problems because a person who has overstayed for over a year for example, who then wants to leave the U.S. to enter on a new valid visa is exposing themselves to the ten year bar upon attempting to re-enter.
The United States is even taking measures to automatically detect when people overstay their visa timeframes.
What is the difference between an O-1A and O-1B?
The O-1A is intended for individuals who have extraordinary ability in the sciences, arts, education, business or athletics, which can be evidenced via sustained national or international acclaim. There are several ways in which this can be shows as is clarified further in our articles and free electronic guide.
The O-1B visa is intended for persons in motion picture or television productions. Again extraordinary ability must be shown and can be done so via evidence of recognition in the field.
I am a Chinese citizen interested in an EB-5 investment visa. Will I face any specific challenges as a Chinese applicant?
While Chinese citizens may face some specific challenges in applying for an EB-5 visa, these can be overcome with guidance from a qualified attorney. Some challenges facing potential Chinese investors are:
- Properly documenting source of funds
- Having ties to the Communist party
- Dificulties in selecting a Regional Center
Source of Funds
Regulation that requires evidence of the lawful source of capital may pose a challenge for some Chinese investors, because of the differences between Chinese and American tax and financial regulation systems. In addition, tracing the path of funds may be further complicated by the Chinese government's currency restrictions, which limits remittance of currency is to $50,000 per individual per year.
Ties To the Communist Party
Chinese citizens who are interested in an EB-5 visa should also be aware of the regulations regarding the admission of former members of the Communist Party.
Difficulties Selecting A Regional Center
Finally, there have been some reports in China of bad practice on the part of some agents from EB-5 regional centers, who have made promises to Chinese investors that were unethical. When you begin to research regional centers, be wary of any representatives or agents who make claims that seem too good to be true; they probably are!
In general, effective communication with an attorney experienced in working with Chinese EB-5 petitioners is the best way to overcome the roadblocks that may arise as a result of the disparities between American and Chinese legal and financial systems. Contact the Law Offices of Vaughan de Kirby online or by phone at 415-221-2345 to get your questions about the EB-5 program answered.
What advantage does the investor based green card route provide me?
The two main advantages of this investment based immigration route are the speed by which an applicant receives legal permanent residence in the U.S., and the lack of several application requirements that often make the green card process prohibitive for many applicants. To get a better idea of these advantages let us quickly consider the general path that persons not availing themselves of the investor based green card process must endure:
An applicant would first have to apply for a non-immigrant visa such as an H-1B or L-1 visa. To do this an applicant would need to have an employer, which by itself can already be prohibitive for many people. One must also convince USCIS of your educational and experiential qualifications and that you are going to be engaging in a qualifying occupation. If one manages to qualify for such a non-immigrant visa it would then only be granted for a period of 1 or 3 years depending on certain factors. After that time is used up on the non-immigrant visa one would have to apply for an extension which is by no means assured. If an applicant then wishes to apply for a green card and adjust status from the H-1B or an L-1 visa to an immigrant visa (green card), then another arduous process begins. In some cases this requires finding a sponsoring employer for the green card case, having the company conduct recruitment advertising, and justifying why the company needs the applicant and cannot find suitable employees in the U.S. to complete the applicant's job. As one can imagine, this process is often difficult, especially in the current economic situation in the U.S. Often times this whole process can take 3-5 years or more.