The only two ways to extend a Visa Waiver Program stay

Overstaying a visit on VWP

When you enter the United States on a Visa Waiver Program (VWP), there is a strict 90 day requirement for the duration of your stay. There are some confusion about how VWP is structured and some people even assume that VWP itself is a visa. This post intends to break down the VWP to its core and explain the two only possible ways to extend a visit using the VWP.

Firstly, the VWP does not give the visitor any type of visa. It is not a visa program. There is no visa stamp in the visitor’s passport once they have applied and been approved to travel on the VWP. As you may already known, VWP is only available to certain countries that historically exhibit low instances of illegal immigration into the United States. Countries that are typically sending droves of people who want to live and work in America permanently are not likely going to be part of the VWP. These are typically developing to under-developed countries, such as China, India, Vietnam, most of Africa, etc. The US government probably uses statistics to determine that granting a country a VWP inclusion will not likely increase illegal immigration from that country.

So since there is not even a visa, what is the VWP? It is essentially an agreement between the United States and the visitor’s country. The US government and the visitor’s country government reaches an agreement that any one who wishes to visit America can simply go online to https://esta.cbp.dhs.gov/esta/ to fill out an application with information about their visit, and if approved, the visitor can hop on a plane and enter into the US without going to the American embassy for any visa interview or stamps. So you might ask, why bother applying in the first place? Doesn’t applying mean asking for a visa? The answer is that the US still wants to be informed of your visit before you arrive, and that the VWP application (or Electronic System for Travel Authorization, ESTA) is just paperwork to fill out to be “pre-screened” for your visit into the USA. Again, once approved, there is no visa stamp, you simply just get on a plane and go. With the fee being at $14 USD, it allows for a quick and cost effective way to allow people to visit America.

Because there isn’t a visa and no visa interview or application, the visitor is restricted to a very defined maximum stay of 90 days. Why is that? Because the USCIS actually has no file or information on the visitor, because there isn’t a visa. The Department of State (DOS), which oversees the various American embassies and visa applications around the world, has no information on the visitor either. The only US government branch that has the visitor’s information is Customs and Border Protection (CBP), which are the police looking immigration officers at the airport immigration desks. Therefore, because the USCIS and DOS has no information on the visitor, the visitor simply cannot extend their stay beyond 90 days. The VWP, by definition and use, is intended for short term visits to the USA. There are no USCIS forms or process to extend a VWP visitor’s stay.

Now there are always instances of people who travel on VWP into the US and are looking for ways to stay beyond 90 days. This does not happen often or else the US government will likely terminate the VWP agreement with the country sending people trying to stay permanently on a visit. After thorough research, there are currently only 2 ways to extend a trip that begun under the VWP. The two ways are not entirely obvious and not advertised anywhere, not because the US government wants to keep it a secret, but simply because it does not happen often enough to warrant a public service announcement.

The first way

The first way is for emergencies. The US government knows sometimes things happen beyond the visitor’s control and the visitor, at no fault of their own, will overstay their 90 day duration. In emergency situations, the visitor can apply for what is called Satisfactory Departure. According to USCIS’s website,

Satisfactory departure is granted only in limited cases and for serious emergencies, such as hospitalization, or conditions that cause flights to be delayed or cancelled for more than 24 hours (weather, worker strikes, etc.). Otherwise, people visiting under the Visa Waiver Program may not stay beyond their initial 90-days.  

These reasons are typically:

  • Hospitalization emergencies, such as getting into a serious car accident on the way to the airport to leave the USA

  • Inclement weather that cancelled the outbound flight

  • Airport strikes

  • Catastrophe events impacting your departure area.

If such situation applies to you, you can then request an InfoPass appointment on the USCIS website and select the field office that is responsible for where you are, and present your case and supporting documents. The district director of the USCIS field office has the sole discretion to approve or deny your satisfactory departure. Keep in mind, satisfactory departure only gives the visitor max 30 more days to depart the US.

The second way

The second way requires the visitor to have immediate relatives in the US who are US citizens. As described from this USCIS memo, if the visitor who came into the US under VWP is an immediate relative of a US citizen (immediate being spouse, parent, child under 21), the visitor is able to apply for adjustment of status (AOS) to permanent residence (green card). By properly filing a I-485, the visitor enters the pending AOS application state and can legally stay in the US until the application reaches a final decision, which can take many months. However, keep in mind that if the application is denied, the visitor has no appeal rights and must leave the country immediately. Also, this is a special circumstance for people under VWP that are applying for a green card, that USCIS technically can remove and force you to depart the USA while the I-485 AOS application is pending. This is not the case for all other I-485 applications but unfortunately for VWP visitors, it is a reality that must be taken into consideration. For example, if the VWP visitor committed a crime, the visitor is subject to immediate deportation despite the pending AOS application.

In conclusion, the VWP is a easy way to get into the US for a visit and a very difficult way to extend a stay. If your stay may be longer than 90 days, it is always in your best interest to apply for a B2 visa which gives you more rights and options should you want to stay longer in America.

 

General Tips for Preparing USCIS Immigration Forms

About me: I am a US citizen who sponsored his wife for a green card and am in the middle of naturalizing her to become a citizen.  The following article is based on my experiences only.

Immigration forms like the I-130, I485, I-751, and the N-400 are needed when applying for a family member to receive a green card and later citizenship through naturalization.  I have filled out each of these forms as the sponsor for my wife’s green card and have learned some things along the way.  Here, I share some general tips that I hope can help you in your own journey!

Relax.

First and foremost, if your relationship is real and genuine, then relax, you have nothing to worry about.  When you first start the process, it seems impossible: dozens of pages of instructions, endless forms and paperwork to obtain, interviews, biometrics, and years and years of waiting.  For many people, the work to put together these packages is stressful, and once you send it in, waiting on an USCIS decision (usually takes months and sometimes years) is even worse.  Why haven’t they sent anything?  Why hasn’t my interview been scheduled?  Why is it taking so long?

Relax.  Take a deep breath.  If the paperwork seems too much, then take a break and come back to it later.  If you’ve sent everything in already and you’ve received the acknowledgement receipt, then USCIS has it and all you can do is wait.  Deal with the applications in little chunks and keep your expectations realistic on how long it will take for a decision and your mental state (as well as your marriage!) will be better off.

Decide who will take charge on the applications.

Unfortunately, there are a lot of forms and documents to obtain for each of these applications.  Thankfully, the USCIS maintains detailed instructions on how to fill out every form.  The bad news is that these instructions are so detailed and worded so strangely that it can get even more confusing!

Before you start to tackle the applications, decide who will put together the packages.  Ideally, it should be the person between you that is more organized, more responsible, and better at English.  There are a lot of instructions, a lot of forms to gather, and very unforgiving deadlines, so whoever is just flat out better at getting stuff like this done should be the person to handle the application.

It’s not that bad – regular people can do it.  However, if neither of you think you can handle it, and you have the money, then you may want to seek professional help like an immigration lawyer.  You may also consider asking a responsible family member or friend.  Keep in mind though, is that if someone else prepares these forms for you, you must declare that in the forms – each form has a section to fill out if someone else did it for you.

The instructions are your friend.  And also your enemy.

For each form, the USCIS has very detailed, and long, instructions.  One reason that it is so long is that they must cover all sorts of immigration situations.  You yourself will only be concerned with your own situation.  Everything else can only confuse you.  Make things easier by focusing only on what applies to you!

Print out two copies of the instructions.  On the first copy, grab a highlighter, and read through it carefully and highlight everything that DOES apply to you.  Read it again, and make sure.  And then read it again.  On the second copy, use a pen or pencil, and read through it carefully, and cross out anything that DOESN’T apply to you.  Read it two more times.

Now, take your two copies, one has highlighted parts that apply to you, and the other has crossed out parts that don’t apply to you.  Compare them.  Make sure everything is either highlighted or crossed out.  If something is both highlighted and crossed out then you screwed up somewhere.  Resolve everything before proceeding.

Now that you know what instructions apply to you, take out a piece of paper, and read through the highlighted portions again.  This time, make a list of things that you need to do and documents that you need to get for your applications, according to the instructions.  Your list should look something like this:

1)      Check for $485

2)      Two passport type photos for me

3)      Two passport type photos for my wife

4)      Marriage license

5)      My proof of citizenship (photocopy of my US passport and birth certificate)

6)      You get my point.

Once you’re organized and know what you need to do, go and do it!

Send copies, but while you’re at it, make a few more for yourself.

The instructions are very clear on this, but only send original documents if the instructions say so.  Otherwise, photocopies are perfectly fine.  Since you have to spend time at a copier to make copies of your documents, make another copy for your records.  In fact, most forms ask for the same documents over and over again, so if you want to save time later in the process, make a few copies of your documents (like marriage license and passport, every form seems to ask for those).

This one I learned the hard way.  The first form I filled out, the I-130, asked for my marriage license.  I got a certified copy from my town, and sent it off to USCIS.  Wouldn’t you know it, once we had to do the next form, there it was again, asking us for the marriage license, so we had to go back to the town and get more certified copies.  You better believe from then on I just made copies of everything.

Do the I-130 and the I-485 forms together.

This was my experience only, but based on conversations with friends and online research, things are much faster if you submit the I-130 and the I-485 together.  At the time, we only submitted the I-130 because we didn’t have enough money for the I-485 fee.  I thought that once we got approval on the I-130 I’d send the I-485 in.  Many months passed without any decision on the I-130 and so I decided to send the I-485 in.  Immediately after the I-485 was received, our decision came through.  Maybe it was just a coincidence, but all of my friends who have done the green card sponsorship put the I-485 with the I-130 and they all got their interview notices much faster than we did.

If you have the money for both fees, and the time to do them together, then I’d recommend it.

Write a letter, explaining what’s in your package, and explaining what isn’t in your package and why.

There’s a lot of documentation and proof that you need to send, especially if you’re applying based on marriage.  Why?  Well, they want to make sure that your marriage isn’t a fake one in order to get someone a green card.  In general, you should just send everything that you can to prove that your marriage is genuine.  Write a letter that lists what documents you have provided, and how each item shows that your life is truly combined.  If you DO NOT have something that’s commonly used to establish marriage (maybe you don’t have joint accounts because one person doesn’t work, or maybe your rent/mortgage isn’t shared because one person has bad credit), then you should include that explanation in your letter as well.

Photos.  (1)

You will need passport style photos of the two of you.  Most forms ask for two each.  I do not recommend getting a bunch at the beginning and using the same ones for every form because the forms will be done over several years and your appearance should change over that time.  I would get the pictures for each form at the time that you submit them.

Most drug stores (CVS, Walgreens, etc), and Costco, have services for these types of photos.  They are trained on the requirements and you can get them done in a few minutes.  The forms say that you can’t use the little wallet pictures you can take in the mall kiosks, but I actually did this once (I was in the mall for something else, saw the picture kiosk, and tried it.  It looked okay, I sent it in, and it wasn’t a problem).  To be safe though even though it costs a bit more, I recommend going to a place like CVS or Costco.

Photos.  (2)

One type of evidence to establish a bona fide marriage is photos of the two of you, ideally spread out over time and in several locations and events.

CAUTION: Do not submit the pictures on a CD or other electronic media.  USCIS cannot put electronic media into their computers due to the risk of contamination.  You must provide printed pictures.  Most department stores (Target, CVS, etc) now have self-serve kiosks where you can put in all sorts of media (CD, flash, etc) and print your photos for a small fee.

For each photo, on the back, write the date that the photo was taken and the event.  Something like “Friend’s wedding, 6/1/11” or “Aruba Vacation, 3/14/12”.  This helps your case officer see that the pictures were taken over time and at many places.

Send your application package through certified mail.

You’ve taken all that time to put together an awesome application package, and now you actually have to send it in the mail.  It costs a little more money, but I recommend sending it certified.  You go to the post office and ask for it to be sent certified.  You fill out a form with your contact information, and once the package is confirmed delivered, you will be notified.  This gives you some peace of mind knowing that your package got to the right place.

I only did this once.  USCIS will send you a receipt (in the mail only) once they’ve received your package anyway so feel free to send it by regular mail.  If you send it by regular mail and you don’t receive a receipt within a few weeks, then you can follow up.  I also trust the post office more than I probably should, so for you, dear reader, I recommend certified mail.

Finally, just take it slow, and proofread.  Make sure you’ve got everything.

There is nothing worse than spending a lot of time to get everything together and sent just to get a rejection letter or otherwise held up because you forgot to sign something or you forgot to attach the check.  Yes, it’s a lot of paperwork.  Yes, it’s a lot of documents.  With good planning, you should have plenty of time before you must get your paperwork in.  Make sure you start early so you’re not running around last minute trying to get stuff before your visa runs out.  Read those instructions again and again and check your lists and make sure you’ve sent everything.  Once you’ve dropped the package off in the mail, kick back, relax, and wait for the next steps to arrive in the mail.

 

Good luck!

TN Visa Basics

The TN visa is a special visa that allows Canadian and Mexican citizens to work in the USA. The TN visa is a result of the North American Free Trade Agreement that is intended on making it easier for citizens in Canada, Mexico and the USA to freely engage in professional business activities on a temporary basis. Although there is no yearly quota on the number of TN visas issued, and each 3 year TN visa can be renewed indefinitely, it is not meant to replace a green card. It is basically a special privileged “H-1B visa” for Canadian and Mexican citizens of specific business professions.

Who is eligible

Firstly, the visa applicant must be a citizen of Canada or Mexico. They cannot have any other immigration status in America. Secondly, their employment must be temporary, much like the H-1b visa that usually the employment results in a green card filing for the employee because good talent must be retained. Lastly, the jobs that the TN visa applicant is to engaged in must be defined in the trade agreement. The list of designated professional occupation that is eligible for TN visas is here. You will see that the list of professions typically require university level education such as a bachelor’s degree. It is usually best that the degree was awarded in a US university/college. If the degree is from Canada or Mexico, sometimes the USCIS will require academic evaluation from a credential evaluation service.

Additional information for specific occupations

From the list of occupations, there are some occupations that have special rules. Here are specific rules for the following occupations:

  • Physicians – limited to a teach/research role. A TN physician cannot be engaged in clinical care, direct care, residency, or internships. Treating a patient through research/teach is permitted. 
  • Nurses – Canadian nurses must also obtain license to practice nursing from the state they intended on performing their job
  • Medical Lab Tech - radiological technologists, respiratory specialists and nuclear medicine technologist are excluded and prohibited from using TN visas to engage in work
  • Healthcare Workers – not all health care workers can use the TN visa to work in America. It must be explicitly listed in the trade agreement.
  • Management Consultants – only those who are either independent consultants coming to America for a specific project, consulting firms that are contracted by a US company or employees of US companies hired for a temporary project and not permanent employees.
  • Computer systems analyst – cannot be computer programmers.

Maximum duration of stay

Each visa is awarded at a 3 year increment and can be renewed indefinitely. Keep in mind though, it does not substitute a green card and so if an individual uses TN visa continuously, it is pretty obvious the job is not temporary and the USCIS will forbid the individual to continue to enter as a TN visa holder.

Travel internationally on a TN visa

Travel in and out of the US is perfectly ok on a valid TN visa. Make sure you have a passport that is valid for 6 months and bring the original I-94 that you received when you entered the first time into America.

How to Apply

Canadians can simply apply for TN visa at an airport or port-of-entry while entering the US. You just need the required documentations:

  • Job offer specifying exact job role, duties, length of stay, salary
  • Valid passport
  • Academic transcripts and degree
  • Academic evaluation, if school is not in Canada or US
  • Information about the employer
  • Fee for I-94

For Mexicans, you must apply at a US Consulate/Embassy. You need to be interviewed and also fingerprinted. The process to get a TN visa is similar to getting any other visa to enter America. You have to apply through the Department of State and in addition to the above documents, you also need

  • Form DS-160
  • 2×2 Passport Photos
  • Visa application fee

Extensions

Canadians can simply apply for an extension at a US-Canadian pre-flight or port-of-entry (airport). Mexicans must apply through filing a I-129. Canadians can also use the I-129 if they do not with to leave the country and return with a new TN visa. The process is typical, requiring:

  • Copy of I-94
  • Copy of visa stamp
  • Copy of passport ID page showing validity
  • TN job offer letter
  • Information on the employer
  • Fee, currently at $320.

The USCIS recommends that you file at least 45 days before the expiration of the TN visa. It can be filed up to 6 months in advance of an expiring TN visa. If you filed a I-129 and then your I-94 expires before you receive an adjudication of the I-129, you have 240 days to continue employment while the I-129 is pending. Keep in mind, if you receive a rejected TN extension letter, you must stop working and leave the country. Traveling during a TN visa extension is highly risky and not recommended because in order to file a I-129 extension, you are required to be physically present in the country. There is no appeal to a denial of extension.

The OPT Cap-Gap extension

girls of international students

For those F-1 students who graduated and were able to find an employer to file a H-1B visa for them, sometimes there is a need to invoke the Cap-Gap extension to continue working in America legally. The unique situation arises on the fact that H-1B visa can not be filed any earlier than April 1st of each year and an approved H-1B visa will not start until October 1st of the same year. For some F-1 students, their OPT or OPT STEM extension could be expiring before October 1st (but must at least expire AFTER April 1st, meaning you must have applied for H-1B during an active OPT or OPT STEM Extension), leaving them a temporary period between April and October where they would not have a legal authorization to work in America. In this particular situation, the USCIS has a Cap-Gap employment authorization status that can be invoked and thus allowing the student/employee to continue working legally.

Who is Eligible for Cap-Gap

To reiterate, the only people eligible for the Cap-Gap extension status are F-1 students with a pending H-1B visa application who have an active OPT or OPT STEM extension that will expire AFTER April 1st of the year. If the OPT/OPT STEM Extension is expiring before April 1st, you cannot invoke the Cap-Gap extension status and may have to leave the country. The H-1B visa application, at the earliest, can be filed on April 1st of the year. As long as it was filed BEFORE the OPT/OPT STEM extension expiration date, the F-1 student is eligible.

How long can I work under the Cap-Gap extension

You should understand that there are actually 2 kinds of Cap-Gap extension status.

  • The first kind is when an H-1B visa was filed on your behalf but not yet received for processing by USCIS. This means that your employer has filed a H-1B visa application for you, but did not receive the I-797C Notice Of Action indicating that the USCIS has received and is processing the H-1B visa application. In this case, you can only extend your employment authorization through Cap-Gap extension until June 1st of the year.
  • The second kind is when your employer filed an H-1B visa application and have received the I-797C notice of action from USCIS that the application has been received and is being processed. For this type of situation, you can have the full Cap-Gap extension on your employment, which is to extend employment authorization until September 30th of the year.

How to get Cap-Gap employment extension

In order to get this unique Cap-Gap extension, you must contact your school’s international student office. If there is time, you should always wait until your employer has received the I-797C notice of action from USCIS and that the USCIS acknowledges the receipt and processing of the H-1B visa application. This gives you the maximum extension under the Cap-Gap rule, which is to extend employment until September 30th. Check with your school’s international student office for exact rules, but generally you would need the following:

  • Completed application for Cap-Gap extension (varies between schools)
  • Fee, if required by your school
  • Copy of current I-20
  • Copy of current EAD card, front and back
  • For applying for the second kind of cap-gap, the I-797C from USCIS indicating that the H-1B application has been received and is being processed.
  • For applying for the first kind of Cap-Gap which only extends until June 1st, then you need to provide a statement from your employer stating they filed a H-1B visa for you and the delivery notice of the application showing it was sent and delivered to USCIS.

Time Frames for Cap-Gap extension

Generally the time of processing solely depends on your school’s internationals student office. Some schools turn it around very fast while others may take a week or two. Always try to apply as soon as you can but not too soon (before the I-797C is received, if possible). Once approved, your school will issue you a new I-20 which has an endorsement for the Cap-Gap employment extension. There is some leeway here with the processing time of the Cap-Gap employment extension. If you applied for Cap-Gap and for some reason you did not receive a new I-20 BEFORE your OPT expired, it is actually OK to continue working. The USCIS has a rule that anyone who is eligible for Cap-Gap, automatically gets that status with a pending H-1B application regardless of the stage of the Cap-Gap extension. This is not to say you don’t have to apply for Cap-Gap through your school, you still need the new I-20 with the Cap-Gap endorsement. However, this means that you don’t have to temporarily stop working or be out of status with a pending Cap-Gap application and an expired OPT.

What if the H-1B visa is rejected

Suppose you have a Cap-Gap extension approved and employment authorization extended until September 30th, however your H-1B visa application was rejected, then you still must leave the country within 60 days from the notice of rejection. For example, if you have an approved Cap-Gap extension but you received a rejection letter from USCIS denying you H-1B visa on May 1st, then you must leave the country by August 1st. It does not matter if you have a Cap-Gap extension until September 30th, the reason being that you are already out of OPT status and if you have a rejected H-1B visa, you really shouldn’t be in the country anymore.

Can you travel during Cap-Gap extension

Simple answer is no. During Cap-Gap, you are technically out of F-1 visa status because your OPT has expired. If you leave the country, you cannot re-enter on the F-1 visa as it is considered expired and terminated. You can only return on H-1B visa, tourist visas, or any other visa that you apply from outside America. If you don’t have a new visa to use to return to America, DO NOT TRAVEL during a Cap-Gap extension.

Same Sex Marriage Green Card Application Tips

Ever since the overturn of Defense of Marriage Act (DOMA), the USCIS has been granting green cards to spouses of same sex marriages. Before when DOMA was in effect, these green card applications were simply put on hold without anyone looking at it, since it was not possible to issue green cards based on same sex marriages. Now that it is possible, people often wonder would the process and interview be any different from a marriage between a man and a woman. Considering all aspects of the application, gay or straight marriages actually are not handled any differently. However, the USCIS does give some leeway for gay marriages in terms of supporting evidence. So, what do you need to have a successful application? A genuine marriage!

A genuine marriage will produce the necessary evidence to convince the USCIS that the marriage is bona fide legitimate and that it is not a fraudulent way for someone to get a green card. Keeping in line with green card marriage applications between a man and a woman, you still need documents to prove the marriage is real. Besides the obvious marriage certificate, you need to produce documents such as:

  • Joint ownership of bank accounts
  • Joint ownership of financial securities
  • Joint ownership of property, real estate assets
  • Both names on a rental lease
  • Joint insurance policies
  • Joint tax returns
  • Both names on utilities bills, telephone bills
  • Evidence of relationship through photographs
  • Plane tickets, phone call records for long distance relationships
  • Adopted children

The list is not meant to be complete and exhaustive, but you should understand any documents that show that both of you are in a relationship will help your case. Now, the leeway mentioned earlier is the photographs of weddings, engagements, and other events where other family members and friends may be present. The USCIS understands that some people escaped to America because their home country or culture strictly forbids gay relationships. In those cases, it is probably nearly impossible to have photos of a family gathering, wedding, engagement of a gay couple since they could both be executed for doing something as simple as entering into a relationship with a person of the same sex. Therefore, it is probably OK in that case to not have photographs of family gatherings or wedding celebrations. But this is not to say that you shouldn’t have any photos at all. Most people in relationships, gay or straight, go on trips or vacations and spend time with each other. Just show those photos. It will be ok that the photos may never contain family members or friends. This is the one aspect of a gay marriage that will differ from a straight marriage and the USCIS understands that. Of course, if your home country is tolerant of gay marriages, like Netherlands, then you better have a good excuse why there are no public photos of the celebration of your gay marriage.

In general, the law does not differentiate green card applications between straight or gay marriages. The USCIS officer will look at and review the entire application as a whole. Additional supporting documents such as an explanation on how your home country or culture is intolerant of gays and that you found your happiness and freedom in America will probably help your case in proving without a doubt that the marriage is real. You can also obtain affidavits from friends who knows of your gay marriage/relationship and can vouch for you. The friends simply need to state how long they have known you, how did they get to know you, how did they get to know your spouse, how long have they known you have been marriage or in this relationship, and if they helped you in your relationship in some way. The one thing you don’t have to worry is being discriminated against for being in a gay relationship. It would be against federal law for the USCIS officer to deny your case base on bias or his/her own judgement. As long as your marriage is real, gay or straight, the USCIS has a duty to grant you the green card.

Good Luck!