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Guillermo Senmartin
Guillermo Senmartin, Attorney At Law
Category: US Law
Satisfied Customers: 107996
Experience:  Over 12+ years of experience in various areas of U.S. Law and 15+ years of experience in U.S. Immigration Law..
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I am a British Citizen returned to the UK to retire from Toronto

Customer Question

I am a British Citizen returned to the UK to retire from Toronto Canada as a resident. Like many Canadians (Snowbirds)as well as Brits' purchased a winter home in Florida. Being used to having up to 180 days to vacation with my family in Canada, was surprised on returning to Florida a B2 Visa was required as an ESTA is good for 90 days only. Having to leave and then return to Florida mid holiday was not the answer. On the advise of a lawyer I applied at the London Embassy for a B2 Visa. I was not permitted to discuss my situation, I was declined without recource, my ESTA declined I had to walk away from my property along with my possessions. I was unable to return to recoup my belongings.
I was amazed having worked in the US with Business interests, I feel like a criminal costing me thousands $$ and now paying a mortgage on property I can't enjoy.
Your kind assistance would be appreciated,
Regards, C
Submitted: 3 years ago.
Category: US Law
Expert:  Guillermo Senmartin replied 3 years ago.
Hello and thank you for using our service. My name isXXXXX and I am a licensed attorney and will try my best to help you. Believe me that I will try my best to give you a solution if one exists, but sometimes the law does not have a good one. Also, we have been having technical issues lately. If you respond and you do not see your response, please post again until you can see it because if you cannot see it, I cannot see it to respond.




I am truly sorry for your situation. Did they give you a reason for the denial?
Customer: replied 3 years ago.

The reason given based upon 1) I had purchased a winter residence in Florida. 2) I had returned from Canada after 37 years with 2 grown children in Toronto. 3) I had not purchased a property in the UK since returning from Canada. Decision: B2 Visa decline due to my intention to


reside in the US.


I was not permitted to respond to the above. My response t you: 1) In the UK


I reside with my partner in her residence

Customer: replied 3 years ago.

Cont: My contribution to the relationship was a Winter residence, my partners and travel for the rest of the year.


At the Embassy I was unable to state my intentions, my son and family have vacationed every year in Florida since their marriage at Disneyland and now unable to offer them accomodation and a place for the family to meet up.


The T.V. program a Place in the Sun on more 4, promotes Florida living and property purchase requiring a B2 Visa


 

Expert:  Guillermo Senmartin replied 3 years ago.
I am sorry about this situation and sorry about the delay in responding. The time difference is against us. When was it that your ESTA was denied? When was it that your B-2 was denied? How much time were you spending in the U.S. out of every 12 months?
Customer: replied 3 years ago.

Hi,


Thanks for getting back to me, the last time I applied for an ESTA on line was about 3 - 4 months ago. I lived in Toronto from 1968 to 2005. Started to vacation in Florida 2 -3 weeks most winters from 1970 to 2002. I worked in the US intermitantly from 1998 to 2003 crossing the border Buffalo, Erie or Niagara, no issues never denied entry. The B-2 was denied September 2010. Average annual time estimated 2 months

Expert:  Guillermo Senmartin replied 3 years ago.
When you say you worked in the U.S., do you mean you worked with or without authorization? Are there records of this? Did you admit to this when you applied the last time? Could that be the reason that you were denied?
Customer: replied 3 years ago.

I worked part time for a company in my early retirement days, doing shows for a Canadian Promotion organisation for Carnival Cruises. I crossed the border by company car, showing the required papers as well as the marketing material. The company was well known at the borders and I crossed on my own merit.


 


chris

Expert:  Guillermo Senmartin replied 3 years ago.
Ok, but did you admit this at your visa interview? Could this be the reason that they denied your visa?
Customer: replied 3 years ago.

You have identified the whole basis of the problem. When I paid £100.0 to have the "so called" interview with the Embassy for my B-2 Visa I thought I was paying for an interview. It was not the case I was not permitted to speak only to answer the 3 questions previously discussed..

Expert:  Guillermo Senmartin replied 3 years ago.

Well, this doesn’t look good for me. Why? Because people tend to want to blame the messenger and if I do not have a good solution for you, even though the law doesn’t have one and it isn’t my fault, the messenger gets shot meaning you go away upset and since I am not given a salary, I basically spent my time on this for nothing. And you are on the other side that you deposited good money to try to get a solution and it isn’t fair to you either. So we are in somewhat of a Catch-22. Be that as it may, I will take the risk that you will not just go away angry and will rate me positively on my service to you and not the unfairness of the law.

Unfortunately, no one has a “right” to a visa, so regardless of what you pay, you are never going to get a guarantee. I understand that you wanted an opportunity to state your case and you will have one, but it may cost you another £100.0. You have probably heard of innocent until proven guilty. This is in criminal law that the government must prove that you are guilty if you commit a crime. You are innocent until then and you don’t even have to say a word. The burden of proof is on the government. In U.S. immigration law, it is the opposite. Everyone is seen as an intending immigrant until they can prove to the government that they are not. So from the start, you are at a disadvantage. You have to prove that you are not intending to immigrate, that you are not coming to the U.S. for a business purpose that is not included in the B-1 chart which I will give you a link to below, and you must prove that you have strong ties to your home and finally, that you are otherwise not inadmissible to the U.S. If you have been able to prove all of those things, then it is probably because you worked in the U.S. without authorization and that’s enough to make you inadmissible to the U.S. They are very serious about that. Imagine if you were a U.S. Citizen, desperate to find a job to feed your family, but jobs aren’t available because someone from Canada, Mexico, the UK, or wherever, has taken that job without authorization. So now you cannot feed your family. I know it is an extreme example, but that’s why those laws exist, to prevent such situations and you violated those laws by working without authorization. Now does that mean that there is no forgiveness? That you will never be able to come back to the U.S.? No.

First, let me give you the link to the B-1 that I promised you:

http://travel.state.gov/content/dam/visas/BusinessVisa.pdf

If your activity is contained within that link and you can prove it, then you should be ok in that aspect. If you can prove strong ties to your country, you should be ok in that aspect. So what do you do now? Unfortunately, since there is no appeal, you will need to apply again. It is best to wait 6 months before applying again, but if you really must apply before, you can. You can even apply the following day after denial, they just don’t think enough has changed in such a short time. Be that as it may, you apply again and submit the evidence that you can and if at the interview you are shut down again, you ask to speak to a supervisor at that time and ask why your additional evidence is not taken into consideration. Keep in mind that you have not rights in this regard, only a discretionary benefit granted by the officer. Yes, I know it can be highly unfair, but this is why you are asking to speak to a supervisor to make sure that the officer is not abusing discretion. Here is another link as to what they look for:

http://www.ilw.com/articles/2009,0528-schwartz.shtm

And finally, let’s say they come up with that since you worked illegally in the U.S. you are inadmissible, then you should ask them for a 212(d)(3) waiver which can either be done by the officer at the interview or after just on their computer (take a look at this link):

http://www.state.gov/documents/organization/87150.pdf

or on form I-192 which can be found at www.uscis.gov/forms. You can find more information here:

http://www.ilw.com/articles/2003,0930-labrie.shtm

I know it is not an easy or quick solution, but it’s what there is available. I hope you take that into consideration and not get upset at me. I can only give you what is available.

Now that I have given you an answer, you may rate me positively OR ask for additional information. Please do not rate me negatively for bad news or things that you may already know. That doesn’t help you or me. I am here to help you and I am on your side. Give me a chance to help you. All you have to do is respond asking for additional information. After you rate positively, a bonus is always appreciated, and I can still answer additional questions for you without additional charge. Please do not log off without rating positively. It is VERY important for me to receive credit since I receive no salary. You are not charged again. If you would like to request me in the future, just type: FOR GUILLERMO on the subject line. Thank you!

Customer: replied 3 years ago.

I understand your predicament and your explanation no blame is given, you mis understood my relationship with my authorisation to work (weekends) in the US. The company was authorised to do so and I was a legal part time employee. There was never any question of illegal practice or entry in to the US.

 

Chris XXXXX

Expert:  Guillermo Senmartin replied 3 years ago.
Thank you for your understanding. You have no idea how many people go away angry or just don't rate because they figure it is not important. It's a huge loss of revenue. So I do thank you for your understanding. Were you paid by a U.S. source?
Expert:  Guillermo Senmartin replied 3 years ago.
Did you reply? If you did and you do not see your reply above, it is because we have been having technical difficulties. Please repost your reply and to make sure it went through, you should be able to read it on the thread, not get a mostly blank screen after hitting the reply button. I believe I may be able to help you. Sorry for the inconvenience. Thank you.
Customer: replied 3 years ago.

Guillermo, we are nearly there, you have been very patient your answer is of no suprise I need to emphasis I have never entered or worked and been accused of doing so in to the United States I have a clean record.


 


Is it worth persuing in reality or is it another £100.0 down the drain? I am vacationing in the Canaries in a couple of weeks, they are welcoming don't give me a problem great weather if the American's don't want my pension I'll gladly give it to the Spanish,


 


Thanks,


Chris

Expert:  Guillermo Senmartin replied 3 years ago.
I'm a little sad that you do not trust me that I will continue to answer your questions even if you rate me positively. But that's ok. I will go forward a little more. Forget about welcoming. There are a dime a dozen the "tourists" that want to come into the U.S. So that's not a way that you are going to convince an officer. The U.S. has plenty of income from tourists. Basically, we don't need your income and it isn't going to make a dent. Sorry to have to say it like that. Just remember that I am on your side. I get no credit until you rate me. So I am not going to want to shoot myself in the foot by telling you something that will upset you, BUT, I have a moral imperative to tell you what the reality is. The reality is that your income is not a big deal to the U.S. The U.S. primarily wants to know that you will go home after your visit and that you have stong ties to your county. If you are going to apply again, apply again, but show strong ties to your country and non-immigrant intent. That is the botXXXXX XXXXXne. So Chris, my hope is that you aren't going to take this out on me. Please rate me positively now. I promise that I will not abandon you. Thank you for your understanding.
Customer: replied 3 years ago.

Guillermo,
You have taken what I said totally out of context, my income isn't the size of a Gnat on an Elephants bum, get rid of all the Gnat's and sudenly the economy is effected. I'm 70 years of age enjoying retirement It doesn't effect me if I never see the States again its no big deal.


I believe it is my perogative to ask "what have I done"? I don't want to rate you based on the last reply, as I thought you were doing OK prior to that.


 


Chris


 

Expert:  Guillermo Senmartin replied 3 years ago.

Sorry about that, Chris. It was late, I was tired, and you did say, "if the American's don't want my pension I'll gladly give it to the Spanish" and I guess I felt a little insulted by that. I understand that you feel insulted that you were treated unfairly and perhaps like you were a criminal or something which is not the case. I was simply trying to explain that it isn't your income that the U.S. is worried about unless you plan to invest $100,000 or more and then we can get you into a different visa. I also am a little saddened again that after all my patience and detailed answers you only think I was doing OK. You see? It is just as I feared, you want to blame the messenger for the crappy and unfair laws we have in the U.S. Again, that's not my fault. I'm dying for them to clean up this system as are millions upon millions of others, but they just don't seem to get their acts together. Too much politics. Now Canada, Canada has an excellent system. We should take some lessons from them. But I digress. To answer your last question previous to my last answer, yes, it is worth spending the money to try again but just make sure that you have evidence of your strong ties to your county. I believe that perhaps they think that because of your age, you may just want to retire and stay in the U.S. So put together a strong file and you should be approved. Please let me know if you have additional questions and please do not forget to rate my service to you positively (not the state of the law) as that is the only way that I can get credit for my assistance. Even after you rate the service, I can still answer additional questions for you without additional charge. And don't forget that bonuses are always appreciated! Thank you.

Customer: replied 3 years ago.

Hi,
Just one last related question is there a statute of limitation on a B-2 Visa decline. Then I will gladly close the file and give you a favourable rating,

Expert:  Guillermo Senmartin replied 3 years ago.
Never say last question! You can always have more depending on my response. But that's ok because you are no limited to questions. If you can believe this, I have even had customers come back years later, post on the same thread and not be charged again. I don't mind answering follow-ups. I appreciate that you will give me a positive rating. Just remember that I will still be here for you even after that as long as you post on the same thread.

There is no statute of limitations on a denial. It is never erased from their system. But as I said, even though you can apply again right after, it is best to wait around 6 months or longer before applying again.

Also, I am not sure if I gave you this link before, but it is a good article:

http://www.ilw.com/articles/2009,0528-schwartz.shtm



And finally, IF immigration reform comes out, there is part of it that would like to establish a visa and possibly Residency for persons that purchase a home in the U.S. of a certain amount of money. Last I heard it was I think $450,000 or so but that will most likely change either up or down plus it may never pass. We just don't know. We are hopeful that it will.
Customer: replied 3 years ago.


Thanks for the attached it certainly provides some insight which I will read in greater depth. I spoke the other day with a wealthy business man I deal with in Montreal, he is about 6 years younger than myself and he reminded me of the "fly in the ointment". Cost of Health Insurance.


He pays $30,000 annually for his parents to holiday in Florida for 6 months. His costs for his wife and himself are escalating. I checked the largest Insurance carrier in the UK and after age 66 they will only cover me for up to 6 weeks.


The decision is out of my hands, holidaying in Europe my UK health Insurance covers me while in spain or other Euro countries at no additional cost. This is the way to goI appreciate your help.

Expert:  Guillermo Senmartin replied 3 years ago.
You are very welcome, but please do not forget to rate me positively so that I can get credit for my assistance to you. You are not charged again and we can continue to communicate without additional charge if you have a few follow-up questions. Thank you!
Guillermo Senmartin, Attorney At Law
Category: US Law
Satisfied Customers: 107996
Experience: Over 12+ years of experience in various areas of U.S. Law and 15+ years of experience in U.S. Immigration Law..
Guillermo Senmartin and other US Law Specialists are ready to help you
Customer: replied 3 years ago.

Hi Guillermo,


I believe you said I could ask you another question, thanks (can I make it 2?). My partner introduced me to the joy's of cruising. Would I have an issue while on a Carribbean Cruise the ship stopped overnight at a US Port say, I stayed on board, the ship sails out of US waters and I don't set foot in the US.


Would I be allowed to catch a cruise ship, say in Miami, returning to Miami and flying out. I think Qu' 2 is "no way.


Appreciate hearing from you,


 


Chris

Expert:  Guillermo Senmartin replied 3 years ago.
I don't mind answering a few more than 2, just not like 20 or something nuts like that. All within reason. If you do not get off of the ship, you are not requesting to enter the U.S. As far as the 2nd question, you would be asking to be admitted into the U.S. to get to Miami. So it's the same problem.

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