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Frequently Asked Questions and Quries on US Immigration and Life >> Immigration >> Immigration FAQ

Tips and Useful information on US Immigration // April 2007 Immigration Update // H1-B Update // Temporary Employment Authorization // Petitions for R-1/I-360 Religious Worker Status // What if You Overstay Your Visa? // Drunk Driving Can Get You Deported

For other Immigration details and links, visit's Immigration section

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.



         < 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.
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.


    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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