Immigration – Don’t Fail To Plan

YOU KNOW the old saying, “if you fail to plan, you plan to fail”. Being thoughtful about a US immigration strategy is no different. Many foreign nationals sell everything abroad, enter the US as a visitor and subsequent to arrival, start thinking about how they will lawfully remain in the US. In my 27 years of practicing immigration law, I am constantly amazed how frequently people endeavor upon perhaps their most significant life change with such little planning.

It is critical for a foreign national to physically visit the US, perhaps several times, before deciding to stay forever. Once it is decided that the US is the place (and it is not for everyone), I believe the first meeting should be with an immigration lawyer to see what the realistic options are available. The US immigration system is outdated and counter intuitive. What one assumes to be the case often is not.

A common example is that once one enters the US as a visitor pursuant to the on line ESTA program, it is important to understand that the admission period will only be for 90 days and that cannot be extended or changed to another category. The only exception in some cases is the foreign national becomes the spouse of a US citizen.

Another common misunderstanding is that merely getting a job offer from a US company that is willing to “sponsor” you, is sufficient. It is not. Only those with certain levels of formal education and being offered certain types of jobs can be sponsored for a working visa. The H-1B working visa, perhaps the most popular, is numerically limited on an annual basis and availability cycles need to be closely monitored.

I often hear from those with a more entrepreneurial spirit, “I am self-employed. I won’t be taking a job away from any Americans. Surely I can move to the US and do my own thing, right?” Wrong! In most cases, one employment authorized visa or another will have to be secured. Depending on the circumstances, there may be a few to choose from and a careful cost/benefit and risk analyses should be performed.

“Mitch”, I hear often, “I just got married to my girlfriend. She has a green card. Where can I pick up the paperwork to apply for my green card?” It would be good for a foreign national entering this scenario to know that by becoming the spouse of a green card holder one can get in a green card queue that is 2-4 years long. During that time, they get no permission to remain, let alone work, in the US. Once the spouse becomes a US citizen, the situation is much better as there is no waiting list for spouses of US citizens to get a green card. There are however, significant timing issues involved with even that type of application.

Many nonimmigrant investors with E-2 visas wake up several years down the road and call to ask how to convert their E visas into a green card. It is often surprising for them to learn that the E-2 visa was not designed to be a stepping stone to green card status. Although there are some Bills pending in Congress aimed at making this transition a bit easier, at this point in time, it is quite challenging (not impossible) to convert an E-2 to a green card.

I have seen on more than one occasion foreign nationals investing in a US business, get an E-2 nonimmigrant investor visa only for the business to fail resulting in the visas to potentially become void causing the family to be uprooted once again to return home. The lesson here is that the planning not only should address a feasible immigration/visa path, but also sufficient business due diligence if the bases of the visa is owning a business. The business climate in the US is quite different to the business climate in most other countries. Being a success abroad has little correlation with being a business success in the US. Moreover, the business climate varies significantly from state to state and even from local region to local region. Sufficient due diligence cannot be over stated.

Another common dilemma I find some new arrivals in involves those who entered the US with an “intracompany transferee” L-1 visa. When the US entity is newly formed, the L-1 visa (and the L-2 for spouse and children) is only issued for an initial one year period. If the business does not meet specified criteria, the visas will NOT be extended. This can be devastating when homes and cars are purchased, children get integrated into school and community, etc. Often times I surprise L-1 visa holders about the likelihood of post first year extensions. Of course, this is something good to know up front in order to go into this adventure with eyes wide open.

In sum, sufficient investigation and due diligence is critical when considering all significant moves, certainly for a move that brings family from one continent to another.

The above information is given for informational purposes only and should not be taken as legal advice. Please consult with an attorney to discuss the particulars of your own case. Mitch Wexler is a Partner with the international immigration law firm, Fragomen, Del Rey, Bernsen & Loewy. He is resident in its Irvine, CA office. He has been practicing immigration law for over 25 years and welcomes all queries to mwexler@fragomen.com or (949) 660-3531.

This article was first published in August 2012