There has been a lot of talk about the new immigration laws and their effect on immigrants or visitors to the United States. The traditional forms to immigrate have pretty much remained the same. These laws still grant visas on the basis of employment, extraordinary abilities, political asylum, family based petitions for immediate family members (parents, sons and daughters who are not 21 years of age, and spouses) of American citizens. What has suffered is the notion of “spontaneous immigration.” That is, “going to the States, remaining there and then figuring out how to stay.” When people are planning to leave their home countries they have usually worked out a detailed departure plan. Most mistakes are made because people forget to plan their immigration and integration to the new country. Nowadays it is absolutely critical to have a planned and well-informed strategy as to how to immigrate to the States. The tourist visa B-1/B-2 does not work for this purpose. When you enter the States with this visa you are essentially telling the officials that your intention is not to stay, that you are only coming for a limited amount of time. In spite of this, several studies conducted by the United States’ Government have shown that 80% of today’s unlawfully present immigrants entered the States with this kind of visa and decide to remain. It is for this precise reason that the majority of the new immigration laws have focused on counteracting this kind of violation.

The Following Illustrates the Mistakes People Make:

Helga arrives in the States – say July 5th – as a tourist and is given 6 months authorized stay until December the 10th, exactly five days beyond her authorized stay. When Helga returns the following year for another vacation the immigration official cancels her B-1/B-2 visa and bars her from returning to the States for the next five years. The reasoning is that by staying over their authorized length of stay a presumption is created that the applicant has demonstrated intentions to immigrate to the States. However, THERE IS SOMETHING YOU CAN DO IN THESE CASES; the immigration official has the option to allow to withdraw her entry application, avoiding the 5-year penalty. B-1/B-2 visas are hard to renew at the consular posts, even if you withdraw beg for it! Please note that your visa will be cancelled.

Gianni has an Italian and a Chilean passport. In his Chilean passport he has a stamped B-1/B-2 visa but he decides to enter the States with the Italian passport. There are certain countries, among them Italy, which have been exempted from obtaining a B-1/B-2 visa. This person must fill out an ESTA application online. During his stay he obtains a job offer and decides to petition for a working visa. With the ESTA he can’t change his status in the United States, he has to return to his home country and obtain his work visa.

Pedro has an import-export computer business between Colombia and the States. He travels between Bogotá and Miami, spending half of his time in both countries. One day an immigration official stops him and takes him to the “room” where he is questioned and his personal belongings inspected. During this time the immigration official finds proof that this person has an American address, belongs to a local gym and has a Miami based business card with the title “Manager” next to his name. All these are proof enough for the officials that this person resides and works in the United States. With a B-1 visa a person is not authorized to receive a U.S. salary for his services. Therefore, his visa is cancelled and he is not allowed to enter the country for 5 years.

Jane comes to the States for a computer course that lasts 6 months. She likes it and decides to stay another 6 months, as her visa is valid for 10 years. Unfortunately, she forgets or doesn’t know that she needs to petition for an extension of stay and at the end of the year returns to her country. A year later IBM transfers her to the States but when Jane goes to the American Consulate her visa is denied. Why? Simply because Jane remained in the United States for a total of 181 days after her authorized stay expired. On top of this, she is informed that she can’t petition for a visa for the next 3 years.

I could go on and on with more cases but the point is that immigration officials are very tough at the borders; the most important of these are the Consulates. Hence, there is a marked scrutiny at consular posts. But you can’t give up. As long as you follow the law and have a well-planned strategy you will be able to live and work in the United States. You have to become familiarized with immigration laws, consult with an immigration lawyer and follow through all the different steps required to obtain a non-immigrant and/or immigrant visa. PLEASE remember this is not a game! You have to take these laws seriously.

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