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Guillermo Senmartin
Guillermo Senmartin, Attorney At Law
Category: US Law
Satisfied Customers: 105582
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 was recently declined -1 in lieu of H-1b visa to work in

Customer Question

I was recently declined for a b-1 in lieu of H-1b visa to work in the states - the Embassy worker told me it was because I was the sole employee of my own company although I was to be working for another larger UK organisation they did nor seem to want to hear about that.
The letter I recived was a standard letter and said I was unqualified under section 214(b) of the Immigration and Nationality Act - which seems to imply I showed no ties outside the UK. The immigration officer said that it was due to my soulus employee status and it "I left the country the whole company did too as it was only me"
I am a house owner and have three dependant children at school in the UK I have no desire to live in the US and took all evidence requested of Bank Accounts and utility bills as requested . The UK company who want me to do some work for them have now suggested they take me on under a fixed term contract and apply for an E2 visa. This is a much larger organisation who have had success with Visas of this nature before but I am worried about the affect of the previous denial (which I would not have attempted without the advice of the lawyer employed to help me)
I have a current ESTA valid for two years but I am not sure how a denial will have affected that or if I can even travel for pleasure in the US ?. I am also worried about re-applying as the Consular Officer last time did not look at any other paperwork than my supporting company letter (which was drafted by a specialist VISA support Lawyer)and I am concerned that this experience seemed to be very subjective where the officer was not asking for any other information or open to discussing my case for more that 2 mins ? Can you comment or clarify on what are the potential chances of one denial reflecting on my next application and should I have logged concerns on the interview processs. Also why he thinks an E2 might be the way ahead ?
Submitted: 4 months ago.
Category: US Law
Expert:  Guillermo Senmartin replied 4 months ago.

Hello! My name is***** and I am a licensed attorney with more than 14 years of experience. I am here to assist you with your questions. Please understand that if I ask you for additional information, you are NOT charged again and our communications are NOT timed. So please see this as a relaxed conversation between friends. I am here to help.

Well, I can tell you three things:

1) The visa officer was wrong to bring up lack of ties to the UK. The H-1B is a dual intent visa. This means that it is not required to have strong ties to your country.

2) However, the visa officer was correct in denying you for being the sole-employee. The employer must have the right to hire and fire the employee. You aren't going to fire yourself. Unfortunately, that is enough to deny the visa. Here is a link to a USCIS memo on the subject:

https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2010/H1B%20Employer-Employee%20Memo010810.pdf

3) Once you have any denial of a visa, you are never supposed to use an ESTA again.

Now if you did not apply for the H-1B itself and applied for the B-1, then the visa officer was correct to deny you the B-1 if they believed you did not have enough ties to your home. Besides, you would have been denied the H-1B later for the aforementioned reason.

Unfortunately, nothing can be done about the ESTA at this point. You could try to re-apply for a B visa again and show stronger ties.

As to the E-2, there is no reason that the E-2 should be denied just because you had a problem with the B visa. However, the E-2, like the B-1 or B-2, is a non-immigrant intent visa. So you will have to show some strong ties to the UK. Not as much as with the B because they are more lenient with the E-2. But you should definitely try to apply for the E=2 as you should have more chance of success with it.

My goal is to provide you with excellent service – if you feel you have received anything less, please reply back as I am happy to address follow-up questions and there is no additional charge. Also, should you need to chat on the phone, private email or need help reviewing documentation, I am happy to do so for a small additional cost. Let me know if you are interested in these – I am happy to give you more details! If you have no further questions (at this time) please leave a positive rating for my service. I would sincerely ***** ***** You can do that by clicking on the 3rd, 4th or 5th stars or smiley faces if you see them. If you do not see any stars or smiley faces, please click on my name and they should come out. Also, your session does NOT close when leaving a positive rating, so you can continue to ask additional questions without additional charge. Thank you for your understanding.

Expert:  Guillermo Senmartin replied 4 months ago.

Hello. I'm just following up with you to see how everything is going. Did my answer help? Please let me know. Thank you!

Expert:  Guillermo Senmartin replied 4 months ago.

I will provide you with two links that may be helpful. The first is to an article that will explain what they look for when issuing a non-immigrant visa like the B-1 or B-2. The second is a list of things that can be presented to prove non-immigrant intent and the strong ties to the home country.

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

https://help.cbp.gov/ci/fattach/get/46680/0/session/L2F2LzEvdGltZS8xMzk3NDE3MzcxL3NpZC85M1BEQ0lSbA==/filename/Intentions+and+Ties.pdf

Please don't forget that positive rating. I only keep mentioning it because if you can believe it, about 30% to 40% of people on this site don't leave a positive rating and since I am not given a salary to be here, it's as if I spent my time responding for free. So you can understand, that's like working 40 hours per week, 5 days a week and not being compensated for every Friday and most Thursdays. That's the only reason I keep mentioning it. Sorry if it is a bother as it is not my intention. If you don't see the stars by my name, I think all you have to do is click on my name and they will come out. Thank you for your understanding.

Expert:  Guillermo Senmartin replied 4 months ago.

Hello. I'm just following up with you to see how everything is going. Did my answer help? Please let me know. Thank you!

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