Changing Status From B-2 Visitor

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One of the most frustrating phone calls I receive as an immigration attorney is: "I'm here on B-2 with my family and want to stay here. How do I change my status?" 90% of such callers actually come to the U.S. with the full intent to stay a very long time. There is nothing wrong with such action per se except such a trip often unknowingly creates a legally perilous situation for the individual and his/her family.
Here is why:
About the children…

Some parents come to the U.S. without any clear long-term plan. Out of concern and ambition for their children's education, they impatiently bring the entire family across the ocean before working out a clear map, which will in the immediate future allow them to support the family and to maintain a legal status. The children are often put in the public education system immediately and thus automatically become violators of their immigration status (if and when it is discovered). In most states, public schools do not inquire about children's or their parent's legal status, and therefore just take them in. This can lead the foreign parents to believe it is alright to do so and also gives them and their children a false sense of security.. Temporary visitors, including children brought with visiting parents, are not authorized to attend any school, let alone a public school that is paid for and supported by U.S. taxpayers. Such records will remain and may make it very difficult for the parents or for the children later on to get a legal status and get a more appropriate visa. Thus, such a hasty decision to bring children to the U.S. even with good intentions and to put them in a public school can actually create many more problems than it solves.
Observation on the families…

Many of these families are often mistakenly and naively encouraged by other family members and/or more remote relatives who reside in the U.S to move here. As a member of an immigrant community, I observe and worry that such an event often later can create a rift in an otherwise close family relationship. Families in the U.S. often naively believe subsistence in the U.S. is better than struggling in the foreign land and do not distinguish between legal and what inevitably turns out to become illegal status since rarely is their planning involved. However, staying illegally in the U.S. has become increasingly more difficult. Visitors, even those who have maintained legal status, cannot get a driver's license, have a difficult time obtaining credit cards, and there is zero possibility of receiving a legal permit to work. If they come into contact with the law, and in today's post 9/11 environment, even minimally, they can find themselves immediately detained by immigration at a detention center and swiftly removed. Out of loneliness, out of the difficulty to find trustworthy employees for their business, and oftentimes truly out of genuine concern for overseas family members, American relatives too often make invitations without much thought to the consequences involved. When each other's expectation is not met, family members, who in the beginning were very hopeful of a new future together, may end up blaming each other and an unhappy family relationship can result from it.
Changing status…

Because most immigration routes take a long time, at least a year and sometimes many more years, the visitors, who were allowed in for 6 months or now often less time, must quickly find a way to temporarily maintain their status. A longer temporary status can be gained through employment, becoming a student, or investing in a business.

Almost without exception, a temporary work status called H-1B requires a specialized bachelor's degree or higher and a job offer from a U.S. employer who is willing to pay the 'prevailing wage'-meaning at or above a U.S. wage. This avenue normally does not suit most of the people who are here as B-1 or B-2 visitors as a real job search in the professions takes time, and the language barrier often makes it more difficult. The difficulty is compounded because if one begins a job search too soon after arriving it may make changing status impossible later on. However, if one parent does secure a qualifying job offer, the entire family, called dependants, can gain legal status and therefore the family can remain together. (For detailed information on H-1B and other temporary work status, please refer to my previous article.)

If one or both parents do decide staying here to study makes sense, and they can afford to do so since neither would be authorized to work, getting an I-20 from a qualifying school is not difficult. Private schools need foreign students' tuition to operate. However, INS is very suspicious of people who try to change their status from a visitor to a student a visitor and Congress has already proposed a law that would disallow visitors from changing their status to that of a student. Even under existing law, visitors who wish to change status must convince INS that their original intent on entering the country was to visit only and only after they came into the U.S did their intention change. This is a very tough requirement to meet especially when an entire family is involved. And even if INS grants the change of status, many U.S. Consulates will make their own determination if and when the individual and/or his or her family members go back home for vacation or a needed visit. I see many individuals who have successfully changed their status but, because of poor planning and execution, are afraid to leave the U.S. for the fear that they will not be able get the student visa and return back here

Finally, there is the investment/E-2 visa. This is a great option if the potential investor has the money to invest and will truly manage the enterprise. However, even then, much planning and timing is required so that one's family can live and travel freely and be here without fear. In this regard, more often than not I will recommend the individual return home to obtain this visa. I also tell clients to take the opportunity while in the U.S. to do market research and properly select a business that they are interested in. Again, they must be prepared to return home to apply for the visa and not to change status in the U.S. because too often such applications may cause them problems when they do want to return and obtain a visa at the U.S. Consulate. Investors who have followed our instructions have had a great success getting a visa abroad and securing their status and in turn their future. I cannot stress enough that changing status while here as a visitor makes getting the visa later on much more difficult because the Consulates are likely to suspect a hidden agenda at the time of entry as visitor.

Our firm has been very successful in helping visitors to maintain a legal status by exploring the visitors' options and guiding them to the best possible path. However, sometimes there may not be an ideal option presented to us because too many missteps have already been made. We also see that some inquirers who did not follow our direction and later on call us after their status has expired or their application has been rejected. Through this article, I wish to advise visitors who are already in the U.S. not to rush into anything without consulting a qualified immigration attorney. And to those who are thinking about coming here, I strongly advise not to relocate family or sell assets until an appropriate legal course of action and strategy has been determined and proper arrangements have been made.
The information contained in article is provided for general information only and should not serve as a substitute for legal advice.

The information provided throughout the Website is general in nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of Heller Immigration Law Group, LLP, or establish an attorney-client relationship.

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