Whether you are applying for US working visas, ESTAs or in the US illegally, New York City-based immigration lawyer Paul O'Dwyer has some top tips for IrishCentral readers including his Golden Rules.
As IrishCentral recently reported, the State Department is now requiring that nearly all visa applicants to the U.S. submit their social media details including usernames, email addresses, and phone numbers.
Should people be concerned about what they post to social media?
I would think in this climate, yes. Particularly because consular officials have immense leeway and discretion in deciding whether or not to grant somebody a visa particularly like a non-immigrant visa like a tourist visa or a temporary work visa so there's no review of those consular decisions.
On a case by case basis, it would not be unreasonable for consular officials to want to see a particular individual’s social media history if they have some reason to believe that there's something there that might be a basis for a denial.
But to ask it on a wholesale basis, particularly in this climate, the focus of immigration officers really is in trying to find reasons to deny these applications.
Are social media checks for US visas terror-related or should applicants be concerned about their political views?
There is no requirement for a detailed reason as to why a visa is being denied so it's really hard to say that it's terror-related. Certainly, consular officers have enough tools at their disposal to do very thorough background checks on individual people.
Really it is a way to, first of all, to discourage immigration and secondly, constantly strengthen the hand of immigration officers and give them more opportunities to deny applications.
In the larger picture and the current context, I would say it would be more reasonable to think that this is just going to be an opportunity for government officials to access more data about people and access more information about people.
I’m traveling to the US on an ESTA, do I need to give my social media details?
I don't think it's mandatory to that extent of non-immigrant and immigrant visas but obviously, then they have the right to do it on a case by case basis if they want.
I have clients who come to my office on ESTAs who have their phones searched by immigration officers.
So nobody should assume that just because you're not required to hand it over as part of the application process that the officers don't have the right to go see it.
Is it getting harder for Irish people to acquire US working visas?
It’s more difficult for everybody to get employment-based visas to the US, mostly because of very restrictive interpretations of statutes and regulations at USCIS is imposing.
And also the State Department has a role to play in their consular officials being more conservative and more difficult. That's not unique to Ireland, that's pretty much for every nationality
What we have seen in the last 12 months is that more people are being denied visa classifications.
Is it harder for Irish people to get a J1 visa?
The rules and the law regarding eligibility for J1 have not changed, it's just the manner in which they are being adjudicated.
I've seen and heard of more J1 visa denials than I've ever heard previously.
And typically getting a J1 visa was never a difficult thing to do. Whereas now people are being denied J1s, for reasons that would seem to be at odds with the J1 program but I don't believe that that's unique to Irish people.
I live in Ireland and want a US work visa – what should I do?
What you really need to do is find a sponsor and you don't need to be physically present in the US to apply for it.
As a practical matter it's going to be difficult to find someone to sponsor you for an H1-B (non-immigrant visa for temporary workers) if you haven’t been here and haven’t met them.
There are also different kinds of investment visas, there’s an investment visa that leads you to a Green Card and then there’s the investment visa that gives you permission to be here and run a business for a number of years but it doesn’t automatically lead you to a green card and the amount of money that’s required for an investment visa varies depending on the nature of the business.
Golden rules for people on US working visas and ESTAs
There is an abundance of rules and regulations to abide by while on a US visa, top immigration lawyer Paul O'Dwyer gives IrishCentral readers his golden rules.
- Don’t get arrested.
- Don't overstay past your visa expiration date.
- Don't violate the terms of your admission.
- Don't wait until the last minute to apply for a new visa
- Keep records
Number one, of course, the big rule is don't get arrested. And if you do get arrested and you think it's something really very minor then you should definitely talk to an immigration lawyer before disposing of any kind of criminal case no matter how minor it may be.
The second thing is don't overstay here past the date you were supposed to leave.
Thirdly, don't violate the terms of your admission by which I mean if you were admitted on a visa that allows you to work with a particular person then you have to work with that particular person.
Whatever the terms and conditions of your visa are you need to abide by them and because there are repercussions, it's much more strict now than it used to be.
For example, let's say you have an H1 visa allows you to work with employer A and then you go on holidays and you come back and you come through the airport and they look at your phone and they see text messages you and employer B talking about your work schedule for employer B.
We see things like that happening a little more frequently or if you're coming in on an ESTA and they look on your phone and they see that you have messages about work that you have lined up here.
If you have a visa that's good for a limited period of time then don't wait until you know the week before it expires to start trying to find a way to expand it.
Another important thing to do is to keep good records because a lot of people don't know their own immigration history so it's important to know.
If you don't have records kept then you can file various Freedom of Information Act request with the government to get copies.
If you overstay your visa will it disqualify you for future visas?
If you overstay your ESTA then you can’t use ESTA again.
And if you have any other kind of visa than usually if people overstay they're not going to be eligible to get a new one anyway, otherwise they wouldn't have overstayed in the first place.
If you overstay for more than six months there's an automatic bar to re-entry to the US.
Advice for US "illegal" or "undocumented" immigrants
If you're in the US and you're undocumented then it's important to know the implications of that.
Know what the limitations are but also go and talk to somebody. Speak to a lawyer or go talk to the Emerald Isle Immigration Center if you don't have the resources to speak with a lawyer
But at least see if you have any eligibility for any kind of immigration status and just get as much knowledge about your situation as you can.
And sometimes people may be eligible for things that they don't know about.
Illegal but still eligible to some sort of visa?
There are people who may be crime victims who are eligible for visas because there are different types of humanitarian relief-type visas available, although they can be difficult to attain.
There are visas for people who are victims of domestic violence and for people who are victims of crimes - in addition to visas for people who were victims of trafficking.
There are also asylum claims but you're not really going to get asylum claims from Ireland
Should illegal immigrants in New York be fearful of applying for drivers licenses?
I could see why people would have a concern and I don't. I'm not sure how well-founded a concern that is, it's not that difficult to find somebody who's undocumented in New York. I think that's kind of a personal decision for people to make. I think you're better off to get a driver's license so that you can drive.
And then if you get pulled over at least you have a driver's license rather than being arrested for driving without a license.
It remains to be seen whether or not when those are going to become available.
Paul O’Dwyer is an established New York-based immigration attorney with over twenty years’ experience in all aspects of immigration law, with a strong focus on asylum and removal defense.
O’Dwyer represents employers and individuals in a variety of employment-based immigration cases, including investment visas, as well as family immigration.
For more information about O’Dwyer, his law firm and its immigration services, visit his website www.paulodwyerlaw.com or call 646.230.7444.