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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Will My Green Card Be Denied Because of My DUI?
Driving under the influence (DUI) of alcohol is a serious crime. If you have a DUI on your record, you may be wondering how it will affect your green card application and whether you will be approved for your green card.
Drunk driving, by itself, is usually not grounds to deny an applicant a green card. However, in certain circumstances, drunk driving can result in inadmissibility on health-related or criminal-related grounds.
When considering whether your DUI will disqualify you on health-related grounds, it is important to note that the United States Citizenship and Immigration Services (“USCIS”) treats alcoholism and alcohol use disorders (abuse or dependence) as a physical or mental disorder. Applicants with a physical or mental disorder will only be inadmissible if they exhibit harmful behavior associated with their disorder that has posed or is likely to pose a threat to the property, safety, or welfare of the alien or others.
During your green card application process, you will be medically evaluated for disorders, including alcoholism, and any associated harmful behavior. Driving a vehicle while under the influence of alcohol does qualify as an associated harmful behavior. Therefore, if you are evaluated and found to be an alcoholic or have an alcohol use disorder, the DUI in conjunction with the disorder may amount to a health-related ground for inadmissibility.
If you fail to report alcohol-related driving incidents during your medical evaluation, the incident will likely be revealed in your criminal record anyway. In such a case, an immigration officer may require a re-examination if you have a significant criminal record of alcohol-related driving incidents, including:
- One or more arrests or convictions for alcohol-related driving incidents while your driver’s license was suspended, revoked, or restricted at the time of the arrest due to a previous alcohol-related driving incident.
- One or more arrests or convictions for alcohol-related driving incidents where personal injury or death resulted from the incident.
- One or more convictions for alcohol-related driving incidents where the conviction was a felony in the jurisdiction in which it occurred or where a sentence of incarceration was actually imposed.
- One arrest or conviction for alcohol-related driving incidents within the preceding five years.
- Two or more arrests/convictions for alcohol-related driving incidents within the preceding ten years.
After the re-examination, the immigration officer may find you inadmissible on health-related grounds.
The second way a DUI may affect your green card application is based on criminal-related grounds for inadmissibility. If the DUI is categorized as a crime involving moral turpitude, you will be deemed inadmissible. A crime involving moral turpitude (“CIMT”) generally involves conduct that violates accepted moral standards. Driving under the influence, by itself is not a CIMT, nor will multiple convictions of driving under the influence amount to a CIMT.
However, the Board of Immigration Appeals (“BIA”) has found DUIs to be crimes involving moral turpitude when the DUI was coupled with knowingly driving on a suspended or revoked license. The BIA has ruled that a person who drives while under the influence and knowing that he or she is prohibited from driving, commits a crime that is contrary to accepted moral standards. Thus, the element that transforms a DUI into a CIMT is the offender’s knowledge that he does not have the privilege to drive. It is the deliberate and knowing disregard for the law that brings the offender’s conduct outside the confines of accepted moral standards and subjects the applicant to criminal-related grounds of inadmissibility.
I am a trainer for an athlete who is planning to travel to the U.S. on a P-1A visa for athletes. Do I need a special visa to travel with him?
As a San Francisco visa attorney at the Law Office of Vaughan de Kirby, I help foreign coaches and trainers obtain visas to accompany their athletes, who will be competing in the United States. As a trainer, you may be considered part of the athlete’s essential support personnel and qualify for a P1-S visa. These individuals include coaches, trainers, referees, scouts, and other team officials who are necessary to the performance of the traveling athlete. The United States Citizenship and Immigration Services (USCIS) allows support personnel to travel with a P-1 athlete as long as:
- The individual is an integral part of the P-1 athlete’s player performance
- The individual performs support services that cannot be easily performed by a U.S. worker
In order to obtain a P1-S visa for coaches and trainers, your athlete’s employer must file a Form I-129 for support personnel on your behalf, including the following documents:
- A copy of the written contract between the employer and the support person outlining the nature of employment and essential services provided
- A statement that clearly describes the support person’s necessary skills and essential nature, including how the support person has provided essential benefits in the past and his current level of experience with the P-1 athlete or team
- A written consultation or evaluation from an appropriate labor organization that has demonstrated expertise in the support person’s specialty
If you are granted a P1-S visa, you may stay in the U.S. for up to one year in order to assist your athlete or team in a U.S. performance or competition. Extensions may be granted in yearly increments, but the maximum stay under this visa is limited to 10 years.
What if I am in the United States on a P-3 visa, but I want to extend my stay?
Under the conditions of your cultural performance visa, you are only allowed to remain in the U.S. for the duration of the event, activity, or performance. No matter how long the activity lasts, your residence cannot last for longer than one calendar year.
However, there are ways to extend your stay. U.S. Citizenship and immigration services allows those with P-3 visas to file for extensions in increments up to one year in order to continue participation in their cultural program. If you wish to remain in the U.S. for longer than one additional year, you may apply to change your non-immigrant status, but this may mean exchanging your visa for a different type. Lastly, you may also wish to remain in the U.S. under another employer.
You can apply to change your nonimmigrant status as long as you:
- Were lawfully admitted to the U.S. under a nonimmigrant visa
- Still have a valid nonimmigrant status
- Have not violated any of the conditions of your status
- Have not committed any crimes during the length of your stay
To apply for an extension or change your status, you will need to fill out a new Form I-129 and submit it to the USCIS. If you are changing professions, your new employer must file a new Form I-129 to request permission to employ you. You cannot start working with your new employer until the Form I-129 has been approved.
What is the COMPETE Act of 2006?
The Creating Opportunities for Minor League Professionals, Entertainers, and Teams through legal Entry Act (COMPETE Act) gives minor league athletes and amateur athletes the opportunity to enter the United States legally through a P-1 visa. Before the COMPETE Act, these athletes had to seek H-2B non-immigration visas, which is more tailored to other seasonal foreign workers.
Passed in December 2006, the COMPETE Act makes it clear that the P-1 visa is meant for a more diverse collection of international athletes and coaches, not just those that are internationally known or that perform at an international level. Specifically, the COMPETE Act makes it possible for minor league baseball players, junior league hockey players, minor league soccer players, semi-professional athletes, and others to live and work in the United States while playing on a team, training, and working on their skills.
If you are an athlete who wishes to travel to the United States to participate in competition, join a team, or coach, you may have several different options when it comes to visas, including the P-1 visa.
Who Can Act as an O-1 Visa Petitioner or Sponsor?
Unlike some other visas, in which the person petitioning for the visa is the immigrant himself, the O-1 visa for extraordinary ability requires that a sponsor petition U.S. Citizenship and Immigration Services (USCIS). The beneficiary of the O-1 visa (the person with the extraordinary talent) cannot also act as the petitioner (the person who is sponsoring the extraordinary talent).
While other work visas often require an employer to be the sponsor, this is not necessarily true in the case of the O-1 visa. Most beneficiaries are still sponsored by their company or employer, but others are sponsored by an individual United States citizen or permanent United States resident who acts as an agent. In some cases, a foreign employer working through a U.S. resident who acts as an agent can be a sponsor. Individual sponsors are common when a talent doesn’t have a single employer, but rather has an itinerary of events or is an independent contractor.
O-1 visa sponsorship can be more confusing and complex than other visa sponsorships.
What Is a P-4 Visa?
P-4 visa is the type of visa that the spouse and dependent children of a P-1, P-2, or P-3 visa holder applies for in order to accompany a family member to the United States legally.
Here are some more quick facts about the P-4 visa:
- To be approved for a P-4 visa, you must prove your relationship with the holder of the P-1, P-2, or P-3 visa.
- Those with P-4 visa status may study in the United States either full-time or part-time without acquiring an F-1 student visa.
- Those with P-4 visa status may not work at all during their stay in the United States unless they receive separate approval to do so, such as through a worker visa.
- P-4 visa holders can study in the country for as long as their family member's visa is valid.
- To apply for a P-4 visa, you must have a valid passport, evidence of your relationship to the P visa holder, and a copy of your family member's Notice of Action Form I-797.
How long can I stay in the U.S. on an O-1 Visa?
Should your evidence and petition to the USCIS succeed in proving that you are indeed a person of extraordinary ability, the O-1 can be approved for a maximum of three years at a time. You will be allowed to apply for unlimited extensions should you be able to provide additional evidence of upcoming events or employment. However, O-1 visas are not always approved for three years. When a person applies for an O-1 visa, the validity dates-meaning the period the recipient is allowed to stay in the U.S.-are set around the specific period of time that is required to perform or participate in a certain event or events. If you have only one short event or project in which you wish to participate, then the USCIS will approve your O-1 visa to cover only this time period.
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.
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.