The Right to U.S. Immigration Status

The U.S. immigration law is neither logical nor precise because the immigration department must adjust to international political as well as economic pressures.

Moreover, there are always new developments in this field. We will tell you about several cases which required litigation and how they were settled. They illustrate the situation as it presents itself now in the U.S.
Let us take the case of Maria. During eight years, she worked as an administrative assistant of a company. She speaks English, Spanish, Portuguese and French fluently.

Having applied for an H-1 visa, the official responsible for her file turned down her application on the basis that her professional reputation had not been sufficiently well established in order to receive a visa.

The Appeals Court reversed the official’s decision alleging that her long experience and her qualifications, as compared to those of others, were sufficient in order to grant her an H-1 visa.

Let us now study the case of a couple which was going to be deported following a decision by the Appeals Court.

The woman was pregnant and the child was born after the trial.

The birth of the child, although it did not represent a decisive fact, allowed the judge to reconsider the decision rendered and to decide to re-open the procedures for further consideration.

At the age of sixteen Anna came to the United States as a tourist from her home country having a B-2 visa. Thirtysix days after her arrival, she decided to study in the United States. Being only sixteen years old she went to the Department of Immigration in order to fill in an I-20 (and I-506) application form in order to transform her visa from tourist to student F-1.

The official decided that because her application had been made so quickly after she had entered the United States she had the preconceived intention to become a student as soon as she arrived to the U.S.

When an appeal was made, the district director decided that she had no pre-conceived intention because of her age, the duration of her stay (36 days) and encouragement from her family.

So she was able to obtain her visa and pursue her studies.
Mr. Zett was the beneficiary of an L-1 intracompany visa.

The court decided that the foreign company making the request did not necessarily need to conclude international transactions, did not require exclusive and absolute control of the subsidiary nor had a high proportion of properties and management in common with shareholders.

From a visa perspective the beneficiary is eligible to be considered for an L-1 visa as long as he or she is employed by the foreign company even though he or she may have shares in both the U.S. and foreign companies which are by law considered to be separate legal entities.

In a case involving the L-1 visa the beneficiary was sent to the U.S. by a foreign company. While being employed by the U.S. company and with its knowledge, he pursued specialized courses in the United States. During weekends he established an office at his home in order to take care of company contracts during his spare time.

At the end of his studies, the company decided to keep him in the United States and requested an L-1 visa for him.

The official decided that because of the fact that he was present in the United States for his studies, he had therefore not been employed during the past year by the company which was applying; in consequence he was not eligible for the visa.

This decision was reversed by the regional commissioner who alleged that these studies for specialization did not constitute an interruption of his employment by the company which, had the intention of establishing its head office in the United States.