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Immigrant Intent

Jurgen Kotchfeld and Susanna Hirschberger, a married couple from Sweden , had moved from Stockholm to New York to live and work. They had already bought a house and a car. Susanna was looking for a job. She was a marketer with over twenty years of experience. When they received a denial on their application to extend their visas they were in shock.

“All we wanted to do is come here and work”, Jurgen told me over the phone. “I had heard that it wasn’t all that hard as long as you brought money and could maintain a standard of living. I worked my whole life and I don’t really need to work that much anymore”.

It was unfortunate that this couple hadn’t sought advice from an immigration lawyer prior to departure. They had entered the United States on a visa waiver. The visa waiver allows certain foreign nationals to enter the US without a visa for up to ninety days. It is very convenient, because you can just board an airplane, fill out a green card (I-94W), hand it over when you enter the country, get it stamped and have it stapled to your passport. The downside is that this status cannot be extended. When you reach the ninety days, you will have to leave the country. You also can’t change your status to another non-immigrant status.

Jurgen and Susanna were trying to be creative and asked me if they could go to Canada every ninety days and return the next day and so accumulate an additional three months. “In the alternative”, asked Jurgen, “what can we do to get a green card?”

This question is very common. People tend to think rationally when it comes to immigration. They start with the solution first and then amend their plans accordingly. Unfortunately it doesn’t always work. And here is why:

US Immigration Law operates under the assumption that every foreign national who enters the United States has the intent to immigrate permanently to the US , unless that person can prove otherwise (INA § 214(b)). Foreign nationals entering under the visa waiver program are considered visitors and may not have immigrant intent. Visitors must demonstrate genuinely that they only intend to remain in the US temporarily.

Therefore, if Jurgen and Susanna try to circumvent the 90-day rule by traveling to Canada or any country for that matter and re-enter the US for many times, they would have a problem showing that they don’t have the intent to remain in the US permanently. An Immigration Officer may deny them entry to the US if Jurgen and Susanna can’t demonstrate their non-immigrant intent. So, although the law doesn’t prohibit visa waiver nationals to enter the US frequently, a pattern of pushing the limits of the program could result in a denial of entry.

Jurgen and Susanna have an even bigger problem, because they do have the intent to remain in the US permanently. And since they bought real estate in the United States it would be even harder for them to convince an immigration officer that they ‘were just visiting”.

I had to advise the couple to leave the United States , since their 90 days had expired. If they wanted to stay longer in the US on a temporary basis, they should apply for a B-1/B-2 visitor visa at the US Consulate. This visa would allow them entry into the US for a period of 6 months and could be extended for an additional period of 6 months. They would still have to show the Visa Officer at the Consulate and later the Immigration Officer at the airport that they had the intent to stay in the US only temporarily, which could be proven to be difficult. If they would try this, at least it would give Susanna time in the US to look for a job and give her the possibility to change her status to temporary worker (such as H-1B) upon finding an employer willing to sponsor her. Jurgen could then change his status to H-4 as a “dependant” of his spouse.

Another, and probably better, solution would be to find a sponsoring employer first and then enter the US in the proper visa category.

Always start with asking advice first, so you can consider your options carefully, before jumping into an immigration adventure. Immigration Laws are full of complicated gray areas. The field of immigration is becoming increasingly more difficult all over the world and the scrutiny by enforcement agencies has intensified tremendously since September 2001. Once you proceed on the wrong path, it is hard and costly to rectify.

And with regard to getting a green card… Well, that’s an article for another time.

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Other Immigration Topics:
  Being transferred to the United States, Intracompany Transferees (L-1's)  
  Free Advice or Nightmare  
  Getting a Social Security Number  
  Immigrant Intent  
  Labor Certification and PERM  
  Secure America and Orderly Immigration Act of 2005  
  Talented Specialty Workers with a Bachelor Degree (H-1B)  
  To invest is a long short-term affair (E-2)  
  USCIS Immigration Benefit Application Fees  
  You want to work in the US, but how? Here are some answers...  

We hope you find this information helpful. If you have any immigration questions, please contact David Asser, either by phone at (602) 228 9773 or e-mail at david@asserlaw.com. You can also visit the website at www.asserlaw.com


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