Ten Things to Watch Out for in an Online Forum

by Elizabeth Brettschneider

Hardly a week goes by where I don’t hear a client mention that they heard something on a blog/chatroom and want to do what this other person recommended. Years ago when I first started hearing clients talk about these chatrooms I took a look for myself at the type of information out there, and occasionally now I’ll go back and look around at what people are saying in these forums. Every time I look I can’t help but cringe at all the inaccurate advice people are giving each other. While I can certainly understand that many individuals are seeking clear and unbiased information on immigration questions (and that often people want to know if they are getting the best advice from their immigration attorneys), I can’t stress enough how careful readers should be of taking advice from others on the Internet. Below is a list of ten of the more common inaccuracies/misinformation (which I've paraphrased) I have seen on blogs and in chatrooms. (Trust me, this is not an all-inclusive list).

1.    “My friend got her Green Card in three months so if your lawyer is telling you it takes longer, they don’t know what they are talking about.”
While it’s certainly possible that the Green Card process for one individual may only take three months (and also for the process to take years for others), there are so many factors that determine the length of time a person will wait for a Green Card that each case must be looked at as its own unique process. These factors include but are not limited to the foreign national’s country of birth, whether they are applying through marriage, employment, asylum, or the diversity lottery, for example. To extrapolate timing from one person’s case and apply it to another is not helpful and will lead to unreasonable expectations.  

2.    “If you want to get your fiancé(e) to the US more quickly, just have them come on a visitor visa/visa waiver program and then you can get married once they’re in the US.”
If a person enters the US on a visitor’s visa or under the visa waiver program, their intent must be to remain temporarily in the US. To enter on a visitor’s visa or under the visa waiver program but have intent to marry and remain in the US permanently is visa fraud.

3.    “I have a case pending.  Can I travel?”
Be very careful about general advice on the ability to travel found on forums/chatrooms/blogs as the answer to this question is very case-specific. To be able to give advice about someone’s ability to travel internationally or even to some places in the US where immigration documentation is routinely checked requires that the advisor know the foreign national’s full immigration history. In some cases, traveling in the wrong circumstance can trigger a bar against the foreign national, preventing them from coming back to the US unless a waiver is granted in their favor.   

4.    “I have a three-year bachelor’s degree that was found equivalent to a US bachelor’s degree so your three-year degree should be the same.”
The educational systems of every country and every university within that country are evaluated differently. Some countries (such as the UK) have thirteen years of schooling before entering university so their thirteenth year is counted like it is the first year of US university and thus their three-year bachelor’s degrees are often evaluated equivalent to a US four-year degree. This is not the case with other countries. For example, Indian and Australian three-year degrees are at times not found to be equivalent to a US four-year bachelor’s degree. There are accredited evaluation services that are trained to evaluate each university’s degree in relation to a US degree. It is thus a case-by-case evaluation and no one should assume that because one degree was equivalent that another one from a different country and university would be the same.   

5.    “O-1 visas are freelance visas so you don’t need a sponsor.”
O-1 visas always require a sponsoring entity—whether it is a company or an agent. This is a common misconception.

6.    “You have a master’s degree so you are automatically an EB-2.”
EB-2 (which stands for Employment-based 2nd) refers to the Green Card category designation that the case falls under. Category designation for purposes of Green Card applications is a very complicated subject that extends beyond the scope of this blog article, but for simplicity purposes, EB-2 is a Green Card category for professional positions that require at least a master’s degree or the equivalent. EB-2 cases tend to have less of a backlog than those in the EB-3 category. 

Thus those whose cases are designated as EB-2 often have less of a wait time between when their employment-based cases are begun and the time they are granted lawful permanent residency; however, the point that the advice-giver in this chatroom scenario is missing is that the category is determined by what the job requires, not what degree the foreign national actually has. Thus, a person may have a master’s degree but if the company’s standard minimum requirements are for a bachelor’s degree plus two years’ experience, the foreign national is not going to be designated in the EB-2 category. Again, these issues are very complicated and require in-depth analysis by an experienced immigration attorney to determine the most appropriate category for each individual.

7.    “If you have been arrested outside the US, Immigration won’t know so don’t admit it on your Green Card application.”
The question on the application asks if the applicant has ever been arrested. It is not specific to the US. If the foreign arrest came to light, the applicant would be revealed to have lied on the application. A lie on any application would very likely result in a denial of the application and a finding of misrepresentation would very likely hamper any future application on behalf of that foreign national. As an overall concept (and general life rule I think it’s fair to say), never listen to someone on the Internet who advises lying on an application. The results of taking that advice could be catastrophic. Of course, it’s strongly recommended to consult with an experienced immigration attorney if the applicant has been arrested to determine consequences in regards to immigration and/or travels to the US.

8.    “If you have a case pending to change employers you can start working upon the filing of the new application.”
The truthfulness of this statement depends on what visa type/visa classification a foreign national has. This is not correct advice for most circumstances. Most visas/visa classifications require the petition filed by the new employer to be approved before the foreign national may begin to work for the new sponsor. Some H-1B visa holders may be an exception to this general rule. In some cases, if a foreign national is in valid H-1B status when his new sponsor files an H-1B petition on his behalf, that foreign national can begin to work at the new company once the new petition is received at USCIS. This concept is referred to as “portability.” 

9.    “If you weren’t being paid because you were benched by your employer for part of your H-1B time, it doesn’t count against your six-year allotted H-1B time.”
This is not true. USCIS will not credit back for time spent inside the US while on the H-1B visa even if the foreign national was benched by their employer and thus not working during that time. But more importantly, benching is not allowed on an H-1B and the foreign national would likely be viewed as out of status if they are not working under the terms of the H-1B petition. Even being present in the US in violation of H-1B status doesn’t buy back H-1B time. Issues like this in chatrooms are the perfect example of a question that leads to other questions and issues. The individual in this scenario may be more worried about re-capturing H-1B time but someone giving advice about this question would be remiss not to point out the larger issue—that of being out of status, which potentially has serious consequences.

10.    “If you are no longer working for the company that sponsored your visa and haven’t found a new sponsor yet but the laminated visa in your passport is still valid, you can travel into the US using that visa.”
This is incorrect advice. Once a foreign national is no longer working for the sponsor and does not have a new sponsor nor any other case pending on their behalf, they are not in a valid immigration status. It would be visa fraud to use a visa from a former employer to enter the US for any other purpose than to work for that employer. When a foreign national makes an entry on a visa (even if they don’t actually articulate it at the border) they are effectively stating: “I’m coming to the United States to work for this company.” If the foreign national is coming to the US for another purpose, then it would be fraud to use the visa just because it has validity time remaining.

On a related note, foreign nationals in the US on work-based nonimmigrant visas often think that because the visa in their passport is valid, they can remain in the US even after their employment has ended with their visa sponsor. This is not true. When foreign nationals who are in the US pursuant to employment-based visas such as an H-1B, O-1, L-1, or E-3 end their employment (either because they quit or the employer terminated them for other reasons) they are no longer authorized to remain in the US. It may be possible for new employers to quickly file a new petition for foreign nationals thereby protecting their immigration status. Foreign nationals who choose to linger in the US for months after they stop working, even if they are receiving severance payments, are violating their visa status. Chatroom/blog readers who see advice to the contrary should be wary.  

Don’t Always Trust the Internet
There are many inaccuracies out there in immigration forums and chatrooms. It seems like much of it comes from the assumption of facts without verification or the knowledge that one person’s situation may not apply to another person’s because of even small factual differences. A person should never take legal advice from an online forum or blog to make a decision about their own case—including this one. They should always seek the advice of an immigration attorney who can fully analyze the facts and assess the situation under the current law.