Status Exemptions and Waivers

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Q I am currently in the United States on an H-4 dependent spouse visa. I am interested in starting my own printing business. Since the printing will be done entirely from India, I do not believe that I will be in violation of my H-4 status. Is that an accurate assumption?

A I am so glad that you have posed this question because this issue comes up very frequently. Your assumption is incorrect. Your efforts towards establishing and maintaining this business will be considered “unauthorized employment.” It does not matter that the printing (or the core business) will be taking place in India. If you do engage in this activity, then you may have problems obtaining any type of visa, including being able to adjust your status to that of a permanent resident.

In 2002, I came to the United States without inspection, that is, by crossing the border through Canada. I am now getting married to a U.S. citizen. I have been advised that I will need to seek a waiver because I came into the country without adequate documentation. I am worried that if I depart from the United States for my immigrant visa appointment, I will not be able to return. What can I do?

You are in luck! In January of this year, the Department of Homeland Security (DHS) published a regulation, which will, as of March 4, 2013, allow persons (like you) who entered the United States without inspection to apply for a provisional waiver, so that they are “excused” for their unlawful presence in the United States. Thus, once this waiver is approved by the U.S. Citizen and Immigration Services (USCIS), you will be eligible to attend your immigrant visa appointment (for your “green card”) overseas.

There are certain qualifications that must be met and I suggest that you review the information at USCIS.gov/provisionalwaiver.

Final Note: The USCIS will start accepting H-1B petitions for the fiscal year 2014 beginning April 1, 2013. As the readers may be aware, currently the law puts a ceiling or a “cap” of 65,000 on the number of new H-1B petitions that may be approved in any fiscal year. This year, it is forecasted that the H-1B cap can be used in the first few days in April. We are therefore urging H-1B employers to plan accordingly. With the H-1B cap limits on the hiring of needed foreign workers, alternative visa classifications should be kept in mind. These include: J-1 for Exchange Visitors, E-3 for Australians, L-1 intracompany transferees, O-1 for individuals of extraordinary ability, H-1B1 for Singaporeans and Chileans, and TN for Mexican and Canadian Nationals.

Immigration and business attorney Indu Liladhar-Hathi has an office in San Jose. (408) 453-5335.

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