I live in Philippines and offered a job as physician in the US. Employer is small hospital in midwest. Also, not familiar with immigration but willing to sponsor. Employer wants a lawyer who can expedite things but aware it'll take long, in general. Have asked two lawyers and here are their opinions--

Lawyer 1: since H1b cap is reached and job isn't cap-exempt, suggested EB2. When asked if there's any other option, lawyer said adjustment of status which would get me an EAD in 3 months. said if i am there already AOS can be done. I said I have a B2 visa and lawyer said if i go there, I can apply for AOS after 60 days. said this has risks. But that it's routine (??).

Lawyer 2: again also suggested EB2. said i don't have a strong enough CV to qualify for NIW or O-1, and i agree. However when asked about going there on any visa and doing AOS, said she can't encourage me to do that as B1 has no dual intent. perhaps if i am already there and wanting to secure her services for AOS, she can help me but not deliberately having prior knowledge of intent.

How risky is adjusting status from visitor's visa to immigrant visa? Is lawyer 1 correct about being able to adjust B2 after 60 days and USCIS will not count that against you? Do many people do that? Why is Lawyer 2 reluctant or outright refused to suggest that?

Thanks.

dsd

I would go with the E2b visa and forget about the B1 and trying to adjust the status from there. Lawyer 2 is more correct than lawyer 1.

More correct? Actually, lawyer 2 is following legal regulations and protocol. Lawyer 1 was recommending something which is not lawful, if the OP entered the country on the B visa with intent to AOS.

Sappy,
The question is how to prove intent. For instance, if the potential employer sent a letter asking for a short visit and then decides to have the op stay longer, then how can USCIS prove intent. Based on that set of circumstances, it can be done, but I will not recommend it. The same is with marriage visa which a person can come on a b1, meet "someone," marry, and then file for the I-130 and I-485 AOS. How can you prove intent in that situation even though the two are conversing in cyberspace. It is very difficult to prove intent unless there is written evidence to the contrary. And since it is very difficult, the second lawyer did not want to get into a situation that could jeapordize her status as a approved immigration attorney with USCIS. The first lawyer probably knows ways on how to bend the rules without breaking them. And given the facts that you have a employer not familiar with the immgration process, then that company is potentially liable as well. Hence, the reason why I said lawyer 2 is more correct.

Neither is right or wrong. If one may be not lawful but it has a better chance why not? Sometimes, it's how you beat the system that works better. After 9/11 and due to this administration's unfriendly treatment of immigrants as anti-immigrant sentiment is growing brought about perhaps by blinded loyalty, it's getting harder to immigrate to the US. Many take a faster and easier route by immigrating to Canada first. Then once you become a Canadian citizen, it's a lot easier for you to enter the US and even work legally. Many use Canada as a stepping point.

macyuhoo,

I guess it all depends upon whether one wishes to do something legally or otherwise. Whatever floats your boat, I guess! No one suggested it impossible, just unlawful.

Hudson,
Prior intent, in this scenario, wouldn't be difficult to prove, since the OP was consulting an attorney that had privileged information on his ultimate desire. Presumably, there'd be some record of the consultation. I'd think as an attorney, he/she would be party to the misrepresentation if that was not disclosed.

[quote]Neither is right or wrong. If one may be not lawful but it has a better chance why not? Sometimes, it's how you beat the system that works better. After 9/11 and due to this administration's unfriendly treatment of immigrants as anti-immigrant sentiment is growing brought about perhaps by blinded loyalty, it's getting harder to immigrate to the US. Many take a faster and easier route by immigrating to Canada first. Then once you become a Canadian citizen, it's a lot easier for you to enter the US and even work legally. Many use Canada as a stepping point.[/quote]
This situation is why I dislike quotas in the first place. However, the second lawyer is following the strict interpretations of the law and regulations as well as the ethical guidelines with the legal profession. However, to state that neither is right or wrong is a extemely false interpretation of the facts presented by the OP, even if one goes to Canada.

This is also why the US needs comprehensive immigration refoem based along the lines of economic policy and not arbitrary political idealogies that are in existence today. I also still maintain family based immigration and the other integral part of immigration policy, but hoping to make the processing times much more efficient.

Another fraudster wants to beat the system !

Everyone , just remember: All poopsters are proven guilty fraudsters until assumed otherwise !

[quote]Hudson,
Prior intent, in this scenario, wouldn't be difficult to prove, since the OP was consulting an attorney that had privileged information on his ultimate desire. Presumably, there'd be some record of the consultation. I'd think as an attorney, he/she would be party to the misrepresentation if that was not disclosed.[/quote]
Sappy,
Actually no. Do you think a USCIS immigration officer is going to ask you or the attorney for an expert analysis to prove intent? The attorney has a duty to both the law and to the client, ptiot intent or not. You are forgetting this is an open forum where you and I have prior knowledge to the events and it is much easier for us to determine. However, when it comes to federal employees teying to prove intent or approve the petition, the employee has only the supporting documents and interview(when necessry or required), it is very difficult. So again, I ask you, how can USCIS prove intent based on supporting documents that will be submitted?

Hudson, I like your opinion unlike the rest of these j e r k s. No wonder my mom loved the late Rock Hudson so much...until she learned he was g a y like antiwhatever.

Well, my personal preference, in the scenario you are proposing, would be not to have a paper trail. Let's suppose the immigration attorney assisted the OP in AOS, and has privileged knowledge of the OP's intent to enter on a B1/B2 and remain to adjust. There's a company that has initiated a job offer to the OP. And a lawyer consulted on what is the best manner in which to proceed. In my opinion, at the POE, if asked the OP would have to either admit that he is pursuing a job offer, or misrepresent his purpose for travel. Let's say he gets passed that hurdle, with the POE none the wiser. But at AOS, while the AO may not have that particular documentation in hand while reviewing the applicant, any queries that might reference his purpose when entering the country, if answered truthfully, would indicate misrepresentation at the POE. No?

Answer to OP:


There is nothing wrong with coming to America as a tourist, extending or changing your status and even AOS in future.
Law doesn't prohibit it and whoever states to contrary is a liar, plain as that.
After all, none of the forms, such as I-539 or I-485, would exist if it was unlawful to enter US as a tourit/non-immigrant and later decide to stay longer, even permanently.

Most of the guys who post on this board are bunch of liars and poopsterheads, they play mind games and try to intimidate you into thinking what they want you to think.

However, all above considered , you must also note that law specifically prohibits you from coming to US on B visa with PRECONCEIVED intent to change your status or immigrate.

Now, what is PRECONCEIVED intent , in this case, and how one proves it in Court of Law?

Generally, based on Immigration Court opinions and interpretations of statutes, it's agreed upon that in absence of any evidence other than submission of COS/AOS application, the "60 day rule" applies , meaning : if you apply for COS/AOS within 60 day of your arrival to US on B or any other non-immigrant visa prohibiting dual intent, then there is high likelyhood of you being accused of and charged of fraud for intentionally misrepresenting your intention at the time of entrance (at POE).
Note: This is a serious charge that may bar you from coming back to America forever, so it shouldn't never be taken lightly.

Should you apply for COS/AOS past "60 day window" , then, in absence of evidence to contrary (such as your testimony, facts of case and etc.) you can not legally be presumed to have preconceived intentions and can't be charged with the same, lest it be overruled in Immigration Court as arbitrary , capricious and prejudiced against applicant.

Rules of evidence apply in Court proceedings, so even if your attorney knew about your preconceived intentions and was willing to inform the Court , the priveleged communication between you and your attorney in such cases would be considered an inadmissible evidence, further guarded from voluntary disclosure by Lawyer's Code of Ethics.


Notwithstanding all above, I will strongly advise you NOT to come here on B visa with preconceived intent to immigrate, and for the following practical reasons (I don't know you as a person, so I won't appeal to your morals, for you would ignore me if you lacked my perspective on it):


1. You already have a sponsor here willing to file your LPR with whom you established relationship. Thus you know 100% for sure that you are going to come here to immigrate.
This means , if you come here on B visa, you will have to go long way of lies and misrepresentations to get your LPR in the end.
Keep in mind that lying is very costly thing , it is humiliating and it takes a great deal of effort to maintain it and it is not worth the end result given that you can simply apply through proper way , pass Consular interview, get your immigrant visa and come here with your head up and free of any burdens, fears and doubts.


2. Relationship between you and sponsoring you employer exists and may come up during interview or future AOS.
Should this come up, it will be considered a HARD EVIDENCE of your pre-conceived intention to immigrate, your misrepresentation will be proven without a doubt and with it you will also face the permanent ban of admission to US.



So, I suggest that your best bet is to go with Lawyer 2, regardless of who else advises you what , under this thread or anywhere else.

[quote]ell, my personal preference, in the scenario you are proposing, would be not to have a paper trail.[/quote]
That is a given in any case. The company has proposed to the OP for a long term contract. Said company is not obligated under any law to follow through said proposed contract. It can change its mind, for whatever reason, including not hiting the guy. Said company can even give reasons that would violate the 1964 Civil Rights Act if the OP wa a deemed US resident.

[quote]In my opinion, at the POE, if asked the OP would have to either admit that he is pursuing a job offer, or misrepresent his purpose for travel. Let's say he gets passed that hurdle, with the POE none the wiser.[/quote]
It depends on the paperwork presented. If the OP has a bona fide offer that lasts longer than the time period for the B2 visa, he is obligated. Otherwise, he is not.

[quote]But at AOS, while the AO may not have that particular documentation in hand while reviewing the applicant, any queries that might reference his purpose when entering the country, if answered truthfully, would indicate misrepresentation at the POE. No?[/quote]
You are playing more semantics than factual basis. Would you mind where the USCIS is going to querry for the information. Again, it depends on the paperwork that the OP has at that time. Contract negotiations, regardless of reason, are irrelevant at the POE and cannot be proven for intent, under INA regulations.

To OP:

Beware of lying POOPSTERS !

Go with what Lawyer 2 suggests and you will be fine.

B1/B2 visas have strict limitations. Working for a company on a short term contract, in my opinion, would not comply with the purpose of athat visa. Don't you agree?

[quote]B1/B2 visas have strict limitations. Working for a company on a short term contract, in my opinion, would not comply with the purpose of other visa. Don't you agree?[/quote]
It is possible to be on a B1/B2 visa and work for the US employer on a short term bssis. However, the income must be coming from a non-resident alien payer, even if the host payer is paying directly to a US hospital who will then pay the OP. In other words, op can be on loan from a hospital or medical facility from the Philippines, come to the US for business purposes, and can still be paid by a US payer. He can then file an AOS petition if OP chooses to stay longer than the visa allows, either a H, J visa, or EB2. But it is risky and I would not recommend this.

You and I agree that the EB2 is the best solution for OP. Another solution is to file a J visa and then oonvert to either EB2 ot H visa after the 2 year period.

[quote]other option: lawyer said adjustment of status which would get me an EAD in 3 months. said if i am there already AOS can be done. I said I have a B2 visa and lawyer said if i go there, I can apply for AOS after 60 days. said this has risks[/quote]

I am lost here. On what basis would OP be able to file for AOS 60 days after entering on B visa?! I assume Lawyer 1 was talking about filing for AOS shortly after 60 days, not 6 months or a year.

[quote]I am lost here. On what basis would OP be able to file for AOS 60 days after entering on B visa?! I assume Lawyer 1 was talking about filing for AOS shortly after 60 days, not 6 months or a year.[/quote]
From what I understand, it would be to a J1 visa.

- Thank you so much for all your replies. It's hard when you get differing opinions from professionals but your responses have definitely shed light on my concerns. I do want to do EB2. The only reason that B visa to AOS came up was because the employer may not wait that long.

"From what I understand, it would be to a J1 visa."

- Actually, Lawyer 1 said the AOS after 60 days would be a concurrent filing of AOS and I-140, so I suppose that's immigrant visa. Are you saying this isn't possible?

I know for a fact,if you come to the US with a Vistor visa,and couple week,or months later you try to adjust your status to be able to work.You will 110% be denied,because A.They will know,you came to the US under false reasons,and your ultimate goal was to be able to work here.And 2ndly,you are a visitor,unless you are immidiate family of someone,you won't be able to adjust your status from visitor to anything.You could be the best DR. on earth,will not happen.Because bottom line is,regardless of what.Once you get to the US with a tourist visa,you are visitor....
So my advice is,even if it takes long.Let the hospital file for the right paper work,since they have to do the filing in the first place.And maybe,if you pay more,they'll hurry up with your application.I don't know.