Nicky2303

Hey all,

So I`ve trawled the net, asked 3 different immigration lawyers (and got 3 different answers!) and I`m thinking based on other threads that this forum is as good a place as any to try and find some answers!

So we are here as dependents on my husbands E2 employee visa (he`s Japanese I`m British). Seems ok. We can extend it indefinitely, and I can work. But the issue is, the kids. Once they hit 21 they are no longer covered by the E2 so what do they do? Switch to an F1 in college (and pay international fees) and then when they graduate chances are they will have to leave anyway. And go where? Back to Japan where they no longer speak the language natively? Or the UK, where they have never lived?

So I`m thinking if we are going to be here long term (and it looks like we are) then for their sakes we should try to get green cards. But one lawyer says we can`t apply from an E2. The next lawyer says we can (but is currently ignoring my questions on how if it is not a dual intent visa and just wants $5000 from me before she will do anything else!) Another lawyer says we should switch to an H1b and then apply - but it could take 10 years and during that time I can`t work.

Sigh.....

So - my first question is - if we did decide to switch to an H1b from an E2, would this raise red flags because of a change of intention? Are we running the risk not only of being denied our H1b but also being stripped of our E2 as clearly our intention is now not to come, do, go but come, do, stay? We just don`t want the kids forced to live alone on a different continent they don`t even know! Is this too risky, or is it a pretty straightforward thing.

Second question - if we switched to an H1b and were successful, how long would the GC process take? I know this is a piece of string question -but I have heard from a friend that a lot depends on your nationality (UK good, Japan good, India bad) and level of education (have a masters equivalent) so my Brit friend for eg got her GC in about 2 years, but on the Indian forums people talk about 6-10 years. Is all this true?

Third question - are there any other options that might be better? For eg, there is a very strong possibility that husband could be sent to an overseas subsidiary (such as the UK) for a year or so and then could come back on an L1 visa which (am I right?) would fast track him to a green card.

I`m just not quite sure which way to go. The only thing I am certain of is not to pay that lawyer a cent until she can even answer my questions!

S Folinsky

<sigh>

I'm not even sure OP is describing it right.

That said, the issue of "dual intent" is a pet peeve of mine in talking with other lawyers. Before 1990, it was common practice to wait a period of time after obtaining non-immigrant H-1 [just naked "H-1" inasmuch "H-1b" had not been created and neither had "O-1" but I digress] before starting the immigrant labor certificate. It was an issue of contention between the bar and the former INS as to whether or not it was permissible for a person to obtain H-1 non-immigrant status with the intent to immigrate IF POSSIBLE and if it didn't work, then leave. This was the "dual intent" doctrine.

Unfortunately, a cowboy of a US Attorney went after a quite prominent immigration lawyer who was the incoming president of the American Immigration Lawyers Association with a criminal indictment. The indictment was eventually quashed. The powers that be at the former INS stated that the issues were a matter of legitimate dispute and NOT criminal fraud.

By and by, the idea of dual intent came to be commonly accepted. Because the issue most commonly arose in the arena of H-1 and L-1 non-immigrant visas, section 214(h) was enacted in 1990 to ELIMINATE the issue of dual intent as to those categories.

Now, the E-2 category, does NOT have an express requirement that the non-immigrant have a home abroad with no intention to abandon [compare with B-2 or F-1 visitor]. Also, unlike the H-1b classification, the E-1/2 classifications do NOT have a reference to the stay being "temporary." So, there is nothing inconsistent with engaging in "E" activities while moving towards LPR status as long as the intent is to engage in the "E" activities.

The reason that this is a pet peeve of mine is that in the 23 years since the enactment of the Immigration Act of 1990, the term "dual intent" has been transferred as a lazy shorthand to 214(h).

On a related issue, one of my other pet peeves is the so-called "30/60/90 rule." That is also misinterpreted.

So, perhaps OP needs a fourth opinion.

ian-mstm

Hopefully, this will be a bit easier to understand: just because dual intent is not specifically allowed, it does not follow that dual intent is specifically prohibited. In other words, almost all visas allow for dual intent... including the E-2.

Ian

Nicky2303

Well, this is why I`m here !

Nicky2303

So we CAN apply for green cards from an E2 employee visa? I read on a forum somewhere about someone doing that and being refused AND their E2 stripped from them as they obtained it fraudulently given that there is now evidence they ARE planning to stay permanently.

Believe me, if I cause hubby to not only not get a GC but lose the visa he has at the moment it`ll be death by Californian sushi roll for me....

Nicky2303

Oh this is priceless! Just had THIS email now from the immigration lawyer:

"I will give you a discount because you were referred to me by Mr. XXXXXX. How about $4,500 for Step 1 and $4,950 for Steps 2 and 3?"

Is this normal in the legal profession??! This was when I pointed out to her that based on her estimates the total cost to us of getting a green card will be $18,000!

ian-mstm

I believe the employer must still start the process on your behalf... but, essentially, yes. Once the employer's I-140 petition is approved, you apply to adjust status to become a US permanent resident (= green card).


I once read on a forum that death rays from Mars killed former president John F. Kennedy! Just because it's out there, that doesn't make it the truth.

That said, people are allowed to live their lives and change their minds - it doesn't mean they had the intent all along. You should read up on the logical fallacy known as "post hoc ergo propter hoc"... because that's what has happened in the case you read.


I think you need to speak to a 4th lawyer! That said, you won't actually know whether or not the price is reasonable until the end game. If you get a green card then perhaps it's money well spent. If you don't, you'll consider it a horrid waste even if the lawyer did a very competent job.

I suggest you start with www.aila.org. When you speak to an attorney, question them specifically on this route to a GC and whether or not they, personally, have had success. Take your time... and shop around!

Ian

scrubbedexpat099

Does your Husbands or your Employer wish to sponsor you for a Green Card?

Nicky2303

heh heh heh. Good point.

Yes they do. However we have to pay all the fees. Which really pisses me off quite frankly. They want him to stay and sort the company mess out, but they expect us to pay for our visas / green cards out of our own money. they gave him a one-off relocation allowance which covered the first visa but after that we are on our own. They`ll support us in terms of paperwork and working with the lawyer, but the fees are all ours.

scrubbedexpat099

That is a plus, once you have your green cards he no longer has to work for them or can discuss a more appropriate salary.

ian-mstm

Consider it money well spent if it gets you a green card. Many, many others don't have the opportunity you do! Once you have a GC, your options increase dramatically.

Ian

Nicky2303

Yes, that`s very true. I shouldn`t really whine at all. The company gave us a very generous relocation allowance, and a huge salary increase to come here. I`m just being a brat really!

We came here from Japan after having gone through the earthquake, tsunami, radiation crap - the stress of it all put me into hospital and I`d just had enough and when this opportunity came up we grabbed it with both hands. We have been incredibly lucky.

That`s not to say it hasn`t been tough - trying to find a place to rent with no credit history was difficult. Trying to get my husband not to drive like a total moron was even worse (they get away with it in Japan because the police are inept there. They`re a bit more on the ball here!) the first tax return has damned near killed me and what is it with Americans??! They are just so....."American" ! But we`ve somehow now against all the rules of the universe managed to persuade a bank to give us a home loan after only 9 months in the country (SUCKERS!), got our own place, and we`re putting down roots faster than bindweed. Getting green cards so the kids can have some certainty growing up is the next logical step.

But we`ve been ripped off so many times already (or it feels like it anyway!) that I am now doing absolute due diligence before going ahead with this lawyer - who`s probably really good but I`m suspicious of everyone here now who claims to be a professional!

She says she has never lost a labor cert case and she only takes on cases she knows she has a good chance with. I guess she means us too, but I have asked her how many cases she has successfully petitioned from an E2. I have also contacted 2 other law firms to ask their opinion on whether we have a good chance, and husband is suggesting we wait a year or so (as to be fair there is no tearing rush right now, we still have just under 4 years left on this visa) to see if he is likely to be sent overseas, most likely to Europe or the UK. If that happens, we can come back on an L1 and fast track to a GC anyway and skip the labor cert step. I`ve said UK or Spain is fine but I`m not living with the French ! He actually went on a tour of the European offices and told the UK office his wife was British: "great! Cool!". And the Spanish: "Magnificent! Wonderful!" and then the French: "oh. C`est la vie"...!

If we get a GC before getting sent overseas, is there a period of time after which we forfeit the GC anyway if we are out of the US too long? Again - sorry - done the internet research and seeing different answers. I trust you guys more

scrubbedexpat099

You could probably fudge it for months, but not years.

Nicky2303

Hmmm. That`s another consideration because I don`t want to go through all this, get a green card (assuming those intelligent, professional devastatingly attractive people at USCIS who probably also scan the net for threads just like these allow us to have one) and then find we have to give it up because we`ve been sent back to the UK. the irony would kill me!

ian-mstm

This would only be true if he had an L-1A (management) visa. If it was an L-1B (skilled labor or specialized knowledge), then there is a labor cert involved.


Keep in mind that the GC is merely proof of your status as a permanent resident... it's not the status itself. Abandonment of status (whether or not the GC is expired) is a very gray area and is usually fact specific. Generally, you're fine if you stay outside the US for less than 6 months continuously. However, it's possible to stay out for as long as 2 years without issue if you file for a re-entry permit prior to leaving.

Ian