As an immigration attorney much of my day is spent answering “quick” questions from current and potential clients. I know their heart is in the right place when they ask what they think will be a simple question, so I try to be gentle when I break the news that answers are frequently much more complicated than the questions when it comes to immigration law. So, I thought it might be useful (and interesting) to discuss some of the most common ones. (As always, this post is for informational purposes only and should not be taken as legal advice. We strongly recommend consulting an experienced immigration attorney for legal advice and guidance.)
1. “I’m traveling to Puerto Rico. Do I need to have a valid visa in my passport?”
No. Puerto Rico is a US territory and thus travel there is considered domestic travel. A person traveling from a US state to Puerto Rico and back will not pass through immigration as it is not considered an international trip. Foreign nationals, however, should be careful if they have any immigration issues (such as a case in immigration court, are without any immigration status, have a pending criminal trial, or any other potential immigration issue) as immigration officers frequently patrol the airport in Puerto Rico and could always question a foreign national that they suspect of immigration issues.
2. “My valid visa in my passport has my past employer’s name annotated on it. Can I still use it?”
As long as the visa type (i.e., H-1B, O-1, etc.) is the same, foreign nationals can travel with a visa annotated with a former employer’s name for the length of that visa validity. When the visa stamp in the passport expires, a new visa will be needed but while it’s still valid, the foreign national just has to be sure to present their new employer’s approval notice (Form I-797) along with the valid visa at entry so it is clear to the immigration officer which employer they are working for.
3. “Don’t you know that they did away with I-94s?”
This is not true. An I-94 controls a foreign nationals’ stay in the US. It is a piece of critical documentation needed to prove a person’s status, to request extensions/change/adjustment of status, and other important functions and thus I-94s most certainly have not been done away with. I’m not sure why Customs and Border Protection (CBP) at our nation’s airports and port of entries aren’t being clearer about the new I-94 system but according to many clients, CBP is reportedly telling some people that there are no I-94s anymore. This is not accurate. While there are no more paper I-94 cards being handed out at the port of entry, I-94 records are still very much in existence. As we previously discussed, CBP implemented a new electronic I-94 that allows people to pull up their I-94 records online. CBP has even introduced a way to apply online for an I-94 when travelers are arriving at land entries. Thus, the document printed from the website may look a bit different than the old card but they certainly are still being used.
4. “Immigration officials showed up at my worksite saying they are conducting a ‘site visit.’ Is that normal?”
For those on an H-1B or L-1, yes, it is very common. As previously discussed, as long as all the terms and conditions set out in the visa petition are being complied with, the site visit is nothing to fear.
5. “Can an employee work past the expiration of their EAD if an extension has been submitted?”
Probably not. Almost always HR needs the actual work authorization document (EAD) in order to complete an I-9 but there are limited exceptions.
The I-9 handbook outlines which documents are acceptable for I-9 verification for all different status types. Included in this document is the following statement:
A receipt indicating that an individual has applied for an initial Employment Authorization Document (Form I-766) or for an extension of an expiring Employment Authorization Document (Form I-766) is NOT acceptable proof of employment authorization on Form I-9.
The actual EAD card has to be presented.
One exception to this is that a receipt for a replacement of a lost, stolen, or damaged EAD card is acceptable for ninety days from date of hire or re-verification.
Another exception is for students who graduated in the fields of science, technology, engineering, or math (STEM). Once these students complete their initial twelve month post-graduation Optional Practical Training (OPT) authorized by their university and the EAD card expires, they may be eligible for an additional two year extension of their EAD. As long as these students submit their EAD extension application before the expiration of their current EAD, they are authorized to work until USCIS makes a decision on that application, but not more than 180 days from the date the student’s initial OPT EAD expires.
Remember also that graduates who are working under OPTs (including STEM extended OPTs) expiring between April 1 and September 30 will have their OPT automatically extended until October 1, if their employer files an H-1B cap-subject petition on their behalf and it is selected in the cap lottery. The final exception is for EADs granted under Temporary Protected Status (TPS). If Congress announces (through a publication in the Federal Register) that TPS is extended for additional periods, the EAD card is extended automatically.
In all other instances, the foreign national must present a valid EAD card in order to work.
UPDATE JANUARY 3, 2018: Starting January 17, 2017, USCIS began automatically extending certain expiring EADs for up to 180 days for certain applicants. Because of this change, beginning February 16, 2017, USCIS began reissuing receipt notices (Form I-797) to individuals who applied to renew their Employment Authorization Document between July 21, 2016 and January 16, 2017, and whose applications remain pending in certain categories.
6. “My extension of stay was approved. Do I need to go get the visa now to trigger my status?”
As Protima previously discussed, the visa in a person’s passport does not control their status in the US (the I-94 does). When an extension of stay petition is approved by US Citizenship & Immigration Services (USCIS), they provide an I-94 record indicating the date of expiration, which is the date until which the beneficiary may remain in the US. The visa in a foreign national’s passport only controls a person’s ability to enter the US. Therefore, as long as a person is in the US with their valid I-94 with no plans to travel internationally, they do not need to leave the US just to get a new visa; however, the first time a person travels internationally, they need to make sure they have a valid visa (which is obtained from a US Embassy/Consulate abroad) before returning.
7. “Is Premium Processing fifteen business days or calendar days?”
Happily this is actually a quick answer! USCIS Premium Processing units guarantee an answer back in fifteen calendar days! Getting an application in on a Friday versus a Monday is thus a three-day advantage.
8. “I was handcuffed and taken to a police station years ago but they never charged me nor convicted me. Do I have to admit to this on the visa application where it asks if I’ve ever been arrested?”
Yes. For those whose liberty was halted by police—i.e., they were not free to leave—these individuals were “arrested” and they need to admit to it when asked. Whether or not the arrest itself has any effect on the visa issuance should be discussed with an attorney.
9. “I need a visa for Canada. Can you help?”
Each country has its own laws on immigration. Our firm only practices US immigration. We cannot advise on other countries’ laws. For help on this, individuals should contact an attorney who practices Canadian immigration law.
10. “I just have a quick question: Do I qualify for a visa? I don’t want to have a full consultation, but please just tell me if I qualify.”
The question is indeed quick, but the answer is not! Protima has previously addressed why consultations are so important. I wouldn’t expect my doctor to diagnose my fever and prescribe medication for me without seeing me, discussing my symptoms, and taking my temperature. Just like a doctor, a lawyer has to give individualized advice to “diagnose” a foreign national’s immigration issues and the solutions for those issues. There is no one size fits all answer that can be answered in just a few minutes regarding someone’s ability to qualify for a visa and all the accompanying issues, procedures, and potential challenges.
LATE BREAKING QUESTION. “What effect will Trump’s election have on my case?”
Due to the political events of the week, I can’t help but add one more question to this list that has already started to become a frequent one and I’m sure will continue to be asked by many clients over the next few days, weeks, and months. The truth is that we, as immigration practitioners, just don’t know. He will not take office until January 2017 and even then what he and Congress will do to change the immigration laws and policies (and the enforcement of them) is not yet clear. Even though we don’t know the answers about what will happen, we do know one thing is for sure: we will continue to fight for our clients no matter what country they are from, no matter their sexual orientation, no matter if they are a large corporation wanting to hire foreign employees or if they are a Dream Act kid hoping to hold onto their DACA approval. In the meantime, despite his divisive and hateful rhetoric about immigrants, we have to hope for the best. Stay tuned on this blog for updates regarding this issue.
We, of course, welcome questions from clients. Providing clear, individualized answers is part of our role as attorneys, and a big part of the service we provide for our clients. Going through the visa and immigration process can be confusing and complicated, and clients should emerge well informed and confident that they have been represented well, so keep asking them! Just don’t always expect a “quick” answer…