Ten Widespread Misconceptions About U.S. Immigration Law

1.  If H-1B employment ends, there is a "grace period" before the employee must arrange for new employment to maintain her/his immigration status.

There is NO GRACE PERIOD AT ALL, not 30 days, not 10 days, not even one day. The day after employment terminates, the individual is no longer maintaining valid immigration status. CIS has authority to forgive lapses in employment only on a discretionary, case-by-case basis. For several years, INS had forgiven lapses in employment; however, this was based on case-by-case discretion not any regulation or law. 

2.  An individual cannot get H-1B status if he/she is not in a high-tech field or has no bachelor's degree.

H-1B is often referred to as the high-tech visa. In large measure, this is because during the recent high-tech boom, a dominant percentage of those getting the status were in the high-tech industries. However, any field or position which ordinarily requires a minimum of a bachelor's degree or equivalent for entry into such field can be considered for H-1B eligibility.

While the possession of a formal B.A. or B.S. degree always makes the matter easier, the absence of a 4-year degree frequently does not have to be fatal. An individual may establish his/her H-1B credentials in several other ways; the most common alternative is to establish that he/she has three years of professional-related employment experience for each year the individual is lacking toward attainment of a bachelor's degree.

3.  To get a Treaty Investor visa or status, the visa applicant must invest a huge sum of money.

This is erroneous in two regards. First of all, the "substantial" investment must just originate primarily from citizens of the country of which the proposed treaty investor visa holder is likewise a citizen, which investor(s) may or may not include the visa applicant. While the immigrant investor program requires an outlay of at least $1 million, or $500,000 in certain situations, there is no minimum investment for a Treaty Investor visa. For certain types of businesses (such as those in service industries), $75,000 might be considered "substantial."

4.  An L-1A intracompany transferee must manage many employees to be granted that status.

The quality of the employees directed can be more important than the number managed, since first-line supervisors are usually not classifiable as L-1As. Thus, if one's subordinates are university educated and/or are themselves managers or supervisors, such duties may be deemed managerial. In some cases, L-1A status can be accorded even if no employees are supervised. For this to happen, the proposed L-1A manager must manage a division, department, or function of the business, or render services at an executive level, both with substantial responsibility.

5.  Once the employment which forms the basis of a work visa (L-1, H-1B, E-1/-2, O-1, etc.) has been ended by the employer, immigration status is unavoidably lost and the employee must depart the U.S. immediately.

This is usually not the case. If legal counsel is contacted early enough, it is frequently possible to restructure the conclusion of the employment so that the individual is considered to be maintaining valid immigration status for a longer period of time. If such restructuring is not possible, or after all elements of the employment relationship have been concluded, other maintenance of status options are also possible.

6.  If there is nothing special about a position or the applicant's background, s/he cannot get residence based on a labor certification.

While it is more difficult to obtain labor certifications for positions requiring less education or experience and in times of higher unemployment (such as at present), they are not impossible. In the 30 years of our practice, through the good and bad economic times, I had only one conventional/pre-PERM labor certification application denied (and I subsequently obtained a labor certification and permanent residence for that individual). Relatively recent labor certification approvals in our office have included (in addition to the more common upscale jobs, such as scientists, software engineers, and the like) Head Janitor, Stone Carver(s), Teacher, Restaurant Manager, Japanese Chef, Painter, Painting Supervisor and Travel Agency Manager.

7.  If an employer sponsors someone for residence, s/he must work for it for the rest of his/her Life.

As long as it is the employer's and (prospective) employee's intent at the time residence is being processed that the employment be permanent, a subsequent change of plans or intent may appropriately be reflected in a change of positions. Thus, once residence is granted, the employer may promote, demote, reassign, or discharge the employee based on changed business considerations. The employee, in turn, may also resign.

Within the last couple of years, residence-related employee options have been expanded. To cite one situation, if an individual's employment-based application for residence is pending at CIS for over six months, the applicant's residence processing may continue based on similar employment by a different company, without her/him having to begin the residence process from the beginning.

8.  If I am a U.S. resident/"Green Card" holder and I touch/sleep on U.S. soil once a year, this will enable him/her to retain residence.

Alien Resident ("Green") Cards are valid for reentry to the U.S. by returning residents only if they have not been out of the U.S. continuously for more than one year. Accordingly, their sleeping on U.S. soil once a year just revalidates the Green Card as an entry document.

It is not uncommon for certain U.S. residents to spend considerable time out of the U.S. and/or sever basic ties with the U.S. and/or create substantial foreign ties. When such individual seeks to reenter the U.S., he/she may be viewed as someone who relinquished his/her U.S. residence, and have difficulty with, or even be refused, entry to the U.S., even though his/her Green Card is a valid reentry document.

9.  An individual should not marry a U.S. citizen and then apply for residence based on such marriage.

It is not uncommon for immigration attorneys to hear clients state this. Even though an individual may have been living with her/his significant other for many years, s/he does not want to marry her/him for fear that CIS might think that it is a "phony" marriage. CIS has suspicions about virtually all marriage-based residence cases, and rightfully so. Assuming the relationship is bona fide, an individual should never hesitate to marry the U.S. citizen and apply for residence based on it. This is the case even where for career, educational or other reasons, the couple will not be in a position to live together for some period of time after the residence papers are submitted.

10.  Someone can choose only one course of action at CIS and must await its resolution before pursuing another course of action.

As long as no petition or application contains a misrepresentation, parallel actions may be undertaken at the same time. Thus, an individual may be the beneficiary of pending petitions for H-1B benefits from two different companies while s/he is working for a third. In many cases, an individual may submit residence-related papers simultaneously with or even before nonimmigrant work visa papers have been submitted. An individual may apply to CIS to change his/her nonimmigrant status from, for example, student to H-1B, while the individual's prior application to change status from visitor to student is still pending at the agency.