U.S. Immigration Law

The U.S. immigration law imposes strict limits to how long foreign citizens can spend in the country each year.  Most European nationals are allowed to stay for up to six months on a B2 visa, which requires evidence of sufficient funds to support themselves during their stay.  And if you wish to remain in the U.S. on a permanent basis, the EB-5 Immigrant Investor Visa provides permanent residency to foreign nationals and their immediate families through investment in U.S. 

Below we briefly review the following topics: 

I.   Non-immigrant visas B1/B2 

II.  Business Visas (L-1, E-2, EB-5) 

III. Student Visas (F-1) 

IV. Visa Denials 

I.  Visitor visas B1/B2

If you plan to travel to the US for a business reason (investors seeking business opportunities, professionals attending conferences/meetings, lecturers/speakers), then you will apply for a B1 visa.   

If you plan to travel to the US to visit friends or relatives, or with tourist purposes, for medical treatment, or to participate as an amateur in musical and sports events for which you will receive no payment, you should apply for a B2 visa. 

The visitors are generally granted 6 months admission, with the maximum allowable stay of 1 year (it is possible to obtain a six-month extension if there are good reasons to do so).  Importantly, persons on a B visa are not allowed to study or work during their stay in the U.S. 

The visa interview has personal and consequently unpredictable factors involved in whether your visa application gets accepted or rejected.  Consular officers can usually figure out true intentions of applicants most of the time because of their extensive training and experience.  They want to see that the applicants are honest, stay for the authorized duration and come back promptly after that.  Most of all, consular officers do not want anyone to stay illegally in the U.S. 


 1. Your appearance should convey who youIf you are a student, you should look like a student.  If you are an executive, you should wear formal clothes as if you are attending a business meeting (if possible, the man should wear a tie). 
2. Don’t show signs of nervousness such as flickering of eyes, trembling of fingers,Smile when you meet the visa officer for the first time, and always look into the eyes of the officer when speaking.
3. Be confident in yourThe purpose of your visit must be vacation, visiting family/friends, or other permitted activities (e.g., business seminar).  Make short, to-the-point replies, in a clear voice and do not say anything irrelevant.  You must be polite, never argue and do not ask unnecessary questions.
4.  If you know English, you should conduct the interview in English to understand each otherIf you do not understand what the interviewing officer is saying (because of the American accent or the microphone system), you should say “I am sorry, I did not understand you.”  If you still do not understand the question, smile and calmly ask again, “I am sorry, can you please repeat what you said?”
5. Prepare all the necessary documents for theFor every question asked, when you are answering, you should simultaneously show the document supporting your answer, and refer to that document in your answer.  For instance, if the interviewer asks about your ties to Ukraine, and one of your components is a grandchild, you should simultaneously present photographs of your grandchild and your family to the interviewer to strengthen your case.


II.  Business Visas

The United States has a variety of business programs, including L-1, E-2 and EB-5. 

L-1 is good for people who have a significant business abroad, where they have 10 or more official employees. It is intended for them to come and either (a) buy a business in the U.S.; or (b) to start a new one.  In order to be eligible for an L-1 Visa, the Intracompany Transferee must have already worked for a foreign company that has a subsidiary, parent, affiliate, or branch in the U.S. Specifically, the L-1 Beneficiary must have been employed outside of the United States for the corporation, subsidiary, or affiliate on a full-time basis for at least one year (continuous) out of the most recent three years in order to qualify. 

E-2 visa is good for almost anyone who is coming to the U.S. and is either (a) buying or (b) starting a new business. There is no requirement to have anything abroad; the only requirements are (a) it is a REAL business that produces income (not one apartment to rent out); and (b) investment of about $100K (or more), which can be in kind (equipment, inventory) or in cash. Note that when purchasing an existing business (or a franchise), the purchase price is the investment amount. 

EB-5 can be used for people to start their own business, but mostly it is used for people who want a Green Card, but don’t want to start or operate their own business. In EB-5, the basic requirements are that you have to invest $500,000 and create 10 full-time jobs. Although investors can do this on their own, most choose to have an investment center to handle such details. 

Below is a summary of each visa: 


Transferring Ukrainian employees to the U.S. can have major benefits for an American company.  In certain fields, such as IT sector, the Silicon Valley employers wish to relocate their Ukrainian managers, executives and/or talented subcontractors to their headquarters in Palo Alto.  Or it could be a Ukrainian company sending one its top employees to the U.S. to establish an office in Miami.  Whenever this business need arises, the Ukrainian employee must obtain an L visa. 

L-1A usually starts as a visa, which can become a Green Card. The success (whether you will be able to get the Green Card) depends on the success of your business. If you do not have a large staff within two years, you will not get the Green Card. On the other hand, if your business is operational and has approximately 10 or more employees, you are likely to approved for a Green Card. 

Certain requirements exist regarding the Ukrainian employee’s role.  Specifically, L-1A is meant strictly for executives or managers, not the hired help. An executive is someone who oversees the business and makes strategic decisions. A manager is someone who operates a department or the business, but actually manages the employees. Example: there is an owner of the hotel, and then there is the manager (or few managers) that oversee the operations. 

Employees entering the U.S. to open a new office can initially stay in the country under an L-1(a) visa for up to one (1) year, while qualified employees transferring to an existing US affiliate can initially stay for up to three (3) years. 

The requirements for L-1 are the following: 

1. Business abroad is active and real (tax returns, chart of all employees, copies of their diplomas, payment records, photos of the office, etc.)
2. Applicant must have worked for the business (in addition to being an owner) for at least 1 year prior to arriving to U.S.
3. Applicant must decide whether he/she is an executive or a manager.
4. Two businesses (Ukrainian and American) must be affiliated. For purposes of immigration, it means either:
a. Two businesses must have the same owners in approximately the same percentages (e.g., if three partners owns 33% of the Ukrainian business, the same partners must own the same percentage in the U.S. company); or
b. One of the companies must be a subsidiary of the other.

In order to receive the first L-l visa, which is issued for 1 year, we have to show that the business abroad exists and prepare a business plan for the U.S. company. The U.S. business does not have to be fully operational, only rent an office, open a bank account, and submit a business plan for approval. However, we have to renew this in 1 year (for a 2-year period), and by that time you should have 3-4 employees, so you should get to work as soon as you get the visa (hire staff, etc.) in order to show 1 year later that the business can support an executive or manager. The next renewal, after 2 years expires, is for 3 years. 

Most people on an L-1 visa want to get a Green Card.  To do so, they can apply at any time, but first they will need a staff of 10+ professional employees (with diplomas/degrees or supervisors, not lower-level staff) with a salary of about $35K or above.  That is very hard to accomplish. 

In conclusion, to get L-l, you will need a functioning company abroad and full-time employees in the U.S. (for a Green Card, we need 10 or more employees in the U.S.)  If you plan to have a group of people (two or more), then the U.S. company must be proportionately bigger.  Instead of having 10 employees, which 1 manager can handle, the U.S. authorities will require more employees. In other words, the more applicants, the bigger the operation. 

The spouses of the L-l visa holders get L-2 visas (for spouses and children), as well as the work permit, which they can use to work anywhere in the U.S., including your own company. This way, your wife can be a financial administrator, company director, etc., which increases the employee count of your company. 

In practical terms, getting a Green Card through L-1 visa is extremely difficult.  Just imagine: you’re a new business in a foreign country, where you don’t know the language, local business practices, and no local contacts. It takes many years to create a company that employs 10 professionals on a full time basis. 

One way to overcome this challenge is to purchase an existing business from someone who wants to retire, who has the clients, cash flow and employees. It reduces your risk of losing money while increasing your investment portfolio. Note, however, that a profitable business will not come cheap (starting at $500,000). Some people buy companies for $150,000 - $200,000, and attempt to build it up to 10 employees, but they often spend $600,000 or more trying to increase that business.

So the practical advice is that you’re always better off if you buy an existing operation (franchising?) and you should be prepared to pay for it. Alternatively, you will start on this track, and several months later you will need an extension, so you are going to hire people and pay them salaries out of your pocket just to obtain that extension. Many people get their Green Cards through L visas, but they end up losing a lot of money to subsidize their businesses.  That is why EB-5 is the easiest option (where you get your money back after 5 years). 

Also, for L visas, the business in Ukraine has to continue working once you’re approved for extension and for the Green Card; you cannot come to America without an affiliate business abroad.  Remember: L is an intra-company transferee program, so if you do not have a foreign company, you do not qualify. 

To learn more about legal and practical aspects of obtaining L-1A visas, please contact us anytime.  We will help you understand the U.S. policies and requirements for obtaining an L visa, as well as prepare and file your visa application correctly.  


Note that E-2 is a non-immigrant visa, so it does NOT lead to a Green Card, no matter how many times you re-new it. However, the spouse also gets an E-2 visa and a work permit in the U.S. (an opportunity for a career with a U.S. company that may lead to a Green Card through the work program). As such, E-2 is an excellent gateway to America. 

The requirements for the E-2 visa are as follows: 

An investor has to (a) invest “in the vicinity” of $100,000 in cash or in kind (inventory or equipment); (b) own at least 50% of the business; (c) real and viable business (renting one apartment is NOT a business, but twenty apartments – maybe).

The business has to be “more than marginal,” (i.e., 1-2 employees or sufficient income to support the investor). Example of “more than marginal” business: your import-ехport business that needs no employees, but makes more than $200K/year (example: export used U.S. cars/trucks to Ukraine). 

As a rule, anyone who wants to open any kind of business can use the E-2 visa.  The downside is that the E-2 visa is issued for 3 months, but the stay in the U.S. is for 2 years. Procedurally, the applicant must enter the U.S. within 3 months after issuance of E-2 visa, and they can stay in the U.S. and run their business for the next 2 years, but if the applicant wants to travel outside of the U.S., their visa will expire and they will need to go to U.S. Consulate abroad and renew the visa. 

This visa works well for people who want to come over and stay in the U.S. for at least two years, and who are not as affluent. However, this visa is inconvenient for those who need to travel abroad on a regular basis, because of the consular visits (though E-2 visas are easily issued upon presentation of U.S. business documents, bank account statements, etc.) This visa is also problematic for families with older children, who will lose their E-2 visas as soon as they turn 21 years of age, and will have to leave the U.S. or employ other legal options to extend their stay (e.g., student visas). 

This is a great entry for those who have nothing to go back to, or cannot enter through other business visas.  


This is the fastest and easiest visa to obtain a Green Card and, after 5 years, a U.S. passport.  The Immigrant Investor Program, also known as EB-5, is available to foreign citizens who have invested, or are in the process of investing, at least $1 million in a new commercial enterprise employing at least ten full-time U.S. workers for at least five years.  Individuals who invest in a “targeted employment area” are only required to invest a minimum of $500,000. 

Advantages of the EB-5 visa: 

  • Permanent residence for your entire family with one investment
  • Husband, wife and all unmarried children under 21 receive Green Cards
  • Choose to live anywhere in US
  • Funds may come from any legal foreign or US source
  • Take any job, run or start any business, even retire
  • Any nationality may apply
  • No English language requirement
  • No business or special training required
  • Same privileges as a US citizen
  • Free public school education
  • Same University fees as a US citizen
  • Access to Medicare after 5 years
  • Wider job market for your children in the future
  • Ability to sponsor Green Cards for relatives
  • Citizenship after five years 

Requirements of the EB-5 Visa: 

  • Minimum investment of $500,000
  • Medical check
  • Filing fees to the USCIS (included in administrative costs)
  • Birth certificates
  • Marriage certificate
  • Police record check
  • No previous US immigration violations
  • Detailed documentation for source of funds 

Questions & Answers 

Who may apply for EB-5?

Anyone with sufficient investment funds.  Investors in EB-5 need not have a particular background or any experience, nor English language skills. However, their funds must be legally obtained. 

How long does it take for an EB-5 applicant to get a Green Card?

Usually, it takes about one to one and a half years for an EB-5 applicant to get a conditional green card.  It takes about six months to receive approval for an I-526 petition. Petitioners living in the United States should then expect to wait another six months for approval of their adjustment of status, but this can sometimes take longer if the background check does not clear in a timely manner. Petitioners living abroad at the time of application should apply for an immigration visa through an American consulate office, a process which also takes approximately six months. After approval of the immigrant visa through consular processing, the investors and their families receive conditional green cards within a few weeks or months of arrival into the United States. 

What is a "conditional" Green Card?

A conditional Green Card is a temporary Green Card valid for two years. An EB-5 investor first receives a conditional card before he/she is able to receive a green card without conditions. When the investor successfully applies for a removal of conditions, the investor and his immediate family members are given a permanent Green Card. 

How do I start the process?

Just contact us to set up an appointment. 

Does the Child Status Protection Act apply to the EB-5 program?

Generally, yes. According to USCIS, your child needs to be unmarried and under age 21 at the time the I-526 is filed.

III.  Student Visas

The United States offers international students the most exciting, rewarding and comprehensive array of study options in the world.  In fact, international students who choose to study in the US have almost unlimited study choices at top institutions that have earned high ranking in the world-class education system.  Moreover, students who successfully complete their US study are highly sought-after “next generation” professionals by employers worldwide. 

However, if you want to attend an academic program or English language program at a U.S. college or university, you will first need to obtain an F-1 student visa, which is required for any foreign student that has been accepted to a U.S. university or college, high school, or another academic institution (for instance, an English language training program).  Getting your visa to study in the United States takes time, but it is a surprisingly easy procedure that is well worth the effort of building your future. 

The requirements for an F-1 student visa are very specific. In order to be considered for a student visa, you must have accepted a place at an American university, have enough money to complete the proposed course, be sufficiently prepared for studying in America and intend to leave upon completion of the course. Most of this will be determined during your interview with a Consular Officer. 

Below are some guidelines to help make your student visa application process smooth and successful: 

1.  Student Acceptance at a SEVP Approved School  

Before you can apply at a U.S. Embassy or Consulate for an F-1 visa, you must first apply to and be accepted by a SEVP approved school.  After a college, university, or English language school has accepted you for admission to full-time study, you will be enrolled in the Student and Exchange Visitor Information System (SEVIS). You must also pay the SEVIS I-901 Fee. 

Next, the school will send you a document called an I-20 form, which is the application for an F-1 visa, to present to the consular officer when you attend your visa interview.  You will read and sign this form. Make sure that the name and spelling on your passport is exactly the same as the name and spelling on your application for acceptance to the school and that the school has entered your name as it appears on your passport on the I-20.  If your spouse and/or children intend to reside with you in the United States while you study, they must also obtain individual Form I-20s, but they do not pay the SEVIS fee.  

2.  How to Apply for F1 Visa  

There are two easy steps to apply for a visa:  

(a)  Complete the Online Nonimmigrant Visa Application (Form DS-160)  

The United States is using a new non-immigrant visa application form DS-160 that should be completed online. This form replaces all of the other forms.  You must print the application form confirmation page to bring to your interview.  You will also upload your photo as part of completing the online Form DS-160, which must be: 

  • In color
  • Sized such that the head is between 1 inch and 1 3/8 inches (22 mm and 35 mm) or 50% and 69% of the image's total height from the bottom of the chin to the top of the head
  • Taken within the last 6 months to reflect your current appearance
  • Taken in front of a plain white or off-white background
  • Taken in full-face view directly facing the camera
  • With a neutral facial expression and both eyes open
  • Taken in clothing that you normally wear on a daily basis 

If your photo upload fails, you must bring one printed photo that complies with the above requirements.  

(b)  Schedule an Interview  

You must schedule an appointment for your visa interview at the U.S. Embassy in Kiev, Ukraine.  For new students, F-1 visas are issued up to 120 days in advance of your study start date. However, you will not be allowed to enter the United States in F-1 status earlier than 30 days before your start date.  Continuing students may renew their visas at any time, as long as they have maintained student status and their SEVIS records are current, and they may enter the United States at any time before their classes start. 

International student visa applicants usually receive priority by the Embassy or Consulate, so if your program of study will begin soon, you should to explain this when applying for your visa.  Note, however, that all applicants’ names have to be submitted for a security clearance, so it is crucial that you apply for your visa well in advance of the date your studies begin. If possible, apply three months before you plan to travel to the USA. This will give you extra time if there are delays at the embassy, or if you wish to appeal a decision in the event of a denial.  

3.  Preparation for Interview  

(a)  Pay the non-refundable visa application feed.  There is a US$200 fee, which supports the cost of the computer system used to record your stay in the United States (SEVIS). You must pay the SEVIS fee at least three days before the date of your visa interview.  You will also need to pay an additional US$160 for the visa application fee.  Bring a copy of your receipts to your visa interview. 

(b)  Gather the following required documents:  

  • SEVIS I-20, which is provided by your University/school. I-20 form must be signed by you and school official (Graduate school/International students office).
  • Online Nonimmigrant visa Electronic Application, Form DS-160.
  • Passport valid for travel to the United States and with a validity date at least six months beyond the applicant's intended period of stay in the United States
  • One colored photograph (if online upload fails) 2 X 2 inches square for each applicant, showing a full face, without covering head, against a light background.
  • Original TOEFL scores and SAT, GRE, GMAT scores (as applicable). Students going to the United States to earn a Bachelor's degree should bring their most recent mark sheets or graduation certificates.
  • Students going the United States to earn a Ph.D/MS degree should bring their original undergraduate degree and mark sheets/transcripts.
  • Spouses and minor children accompanying the student to the United States should bring marriage certificates, wedding photos, and birth certificates with them to the interview, to prove the relationship between themselves and the principal applicant.
  • A MRV fee receipt to show payment of the visa application fee.
  • The SEVIS I-901 fee receipt.  

(c)  Collect additional documents to establish that you are qualified, including:  

(i)  Financing  

First and foremost, you will be required to prove that you have the means to finance your education.  This is no easy task because education expenses in the US are significantly higher than in most countries.  To show that you have an adequate, demonstrable financial support to live and study in the United States, you will need to present a solid financial plan for your studies before you can pass your F1 visa interview.  Specifically, you will have to submit proof of liquid assets sufficient to pay for the entire first year of education and living expenses, as well as proof of readily available funds to cover the remaining years(s) of studies. 

The amount you have to show comes from Part 7 on the I-20, which shows the exact amount of funding you must have available to cover the first year’s expenses.  The total amount includes tuition and fees, living expenses, expenses of dependents (if applicable) and other expenses.  You must prove that you have immediate funds available to cover this amount.  If you are going to a two-year program, then you must also show that funds are or will likely be available to cover the same amount for the second year.  For example, if you are a prospective Master’s student for a two-year program and the total amount in Part 7 of the I-20 includes $5,000 for tuition and fees, $5,000 for living expenses, and $500 for other expenses(books and supplies), then you must prove that $10,500 is immediately available to you.  Additionally, you must show that another $10,500 is or will likely be available to cover the second year. 

To establish your financial resources, you should bring to the Consulate: 

  • Original tax returns for the past 3 years
  • Original bank records (bank statements) for the past 3 years, and/or fixed deposit statement of your parent or sponsor.  While anyone may sponsor your education, the Consular Officer will be more convinced if your employer, parent or close family member finances your studies.
  • Pay slips, employment letters 

There are no specific documents that prove a student is able to pay for his/her education.  These are only suggested documents.  A visa is not assured if you have any or all of these documents.  

The U.S. Consulate discourages applicants from bringing property deeds or certified copies of financial documents.  You should only bring financial documents that can support you (or your sponsor’s claim) that your studies in the U.S. will be fully funded.  Likewise, large sums of money in bank accounts may not be sufficient proof of financial support, because money can be moved around easily. When providing information about your bank accounts, ask someone at your bank for a letter that states how long the account has existed, and what the average balance in the account has been. That should convince the visa officer that you and your family have a long and stable history of business at the bank. 

Visa applications are generally stronger if the financial support comes from family, employers, or institutional sponsors located in Ukraine.  So if your parents will pay for your education, be ready to document how your family gets its income. Bring a letter from your parents' employers stating what they do, how long they have worked at those organizations, and how much they earn.  When visa officers see information that is contradictory or does not make sense, they do not grant visas. If your family can only show enough income to support you in the United States, the officer will become suspicious.  

(ii)  "Intent to Return"  

Most student visa applications are approved. The most common reason for a student visa application to be denied is that the person applying for the visa has not proven to the Visa Officer that they will return to their country when they complete their studies in the U.S.A. 

To determine your "intent to return" home, the visa officer will ask you a series of questions about your connections to your home country and about your study plans. Your job is to demonstrate not only that your family has the ability to pay for the first year of your proposed stay in the United States and that you have realistic plans to finance the remainder of your education, but also that you will not remain in the U.S. after your visa expires.  You must bring any documents that might help demonstrate why you will return to Ukraine (family connections, job offers from prospective employers in your field, etc).  

(iii)  Academic Credentials  

You should bring with you: 

Original degree certificates from all institutions you have attended, along with mark sheets (you may still apply if you have not yet received your degree certificate.  However, make sure to include your mark sheets and provisional certificate if available. 

Relevant standardized test scores required by the educational institutions (such as TOEFL, MCATs, LSATs, GRE’s, SAT’s, GMAT’s, etc.)  If your university does not require that you take certain tests such as TOEFL or GRE, you should get a letter from the university stating the same.  However, the Embassy strongly recommends that all student visa applicants provide standardized test scores.  

4.  Attend the Visa Interview  

During your visa interview, a consular officer will determine whether you are qualified to receive a visa.  Below are a few examples of F-1 Visa interview questions: 

  • Why did you choose to study in the US instead of joining the workforce in your home country?
  • Why did you choose this school and why is it the best school for you?
  • What are your test scores (GRE, GMAT, SAT, TOEFL), your grade point average, and your overall performance as a student in the past?
  • How are you funding the entire duration of your education, including tuition, room and board, transportation, and all other expenses?
  • After you graduate, will you return home or will you stay in the United States? 

Your consular officer may ask these questions in different ways, but they are all asked for the same purpose - to be sure that you qualify for the F-1 visa, as stated above. If these questions are answered in a satisfactory manner, the consular officer can approve your application. 

Be prepared to give your information quickly and completely. If you are unable to answer the questions in English, and the visa officer does not speak Russian or Ukrainian languages, you can ask for an interpreter. Speaking English is not a requirement for a student visa. In fact, thousands of students come to the United States each year to learn how to speak English. 

Calmly state your education plans concisely and clearly.  The visa officer needs to know your specific objectives, both academic and professional, for studying in the United States.  You must explain clearly why it is better to study your specific field in the United States than to study at home.  You should also be able to describe exactly what you will study and for what career your U.S. studies will prepare you. 

If you are going to the USA to learn English and then earn a degree, you should explain your complete program of studies.  It is not enough to just say, “it is better to study in the United States.”  Instead, you have to give valid reasons why it is better for you.  Visa officers like to hear honest, direct responses to questions, and they react negatively to applicants who give vague answers, memorize a speech, or make overly solicitous comments about how great the United States is. 

You should also be able to explain in detail why you chose to study at a specific school and be able to give information about that school and where you will live (dormitory, host family or apartment). 

If you plan to return home to complete university studies after studying English, bring proof of your student status in Ukraine. A letter from a university professor supporting your study plan will be helpful. Young people around the world are often unsure of their plans, but in your visa interview it is best to give definite answers. If you seem unsure about what you will be doing, the visa officer may believe that you are really going to the United States for reasons other than education. 

Grades make an enormous difference. If your marks are below average, be ready to provide explanation on how you are going to succeed in the United States. A letter from a school director or teacher, or from your U.S. admitting school stating that the proposed program of study in the United States makes sense and explaining your good prospects for success can be helpful. If there were special circumstances (such as a death or illness in the immediate family) that contributed to the poor grades, have the school explain those special circumstances. 

After your F-1 visa is approved, you will be informed when your passport with visa will be returned to you.  

5.  Entering the United States  

An F1 visa allows a foreign student to travel to any U.S. port-of-entry (generally an airport) and request permission to enter the United States.  However, no visa guarantees entry into the United States.  The Department of Homeland Security (DHS), U.S. Customs and Border Protection (CBP) officials at the port-of-entry have authority to deny admission to the United States.  If you are allowed to enter, the CBP official will provide an admission stamp or paper Form I-94 (Arrival/Departure Record). 

When you enter the USA on a student visa, you are admitted for the duration of your student status. That means you may stay as long as you are a full time student, even if the F-1 visa in your passport expires while you are in America. For a student who has completed the course of studies shown on the I-20, and any authorized practical training, the student is allowed an additional 60 days to prepare for departure from the USA or to transfer to another school. 

It is vital to maintain the student immigration status while you are a student.  Failure to depart the United States on time will result in you being out of status. Under U.S. law, visas of travelers who are out of status are automatically voided (by Section 222(g) of the Immigration and Nationality Act).  If you had a multiple entry visa and it was voided due to you being out of status, it will not be valid for future entries into the United States.  Failure to depart the United States on time may also result in you being ineligible for visas you may apply for in the future.  

To remain in the US, you will need to re-enroll in a higher program, transfer to another school to receive a new I-20 form, or apply to change your visa status.  

6.  Work During Studies  

International students studying on F-1 status visa are eligible to work on campus up to 20 hours a week while school is in session, and can work full time during vacations/scheduled breaks. Students are eligible to begin employment immediately upon being admitted to the United States in F-1 status.  However, the spouse of a student cannot work if they have travelled on a dependent visa. If they will be seeking employment, the appropriate work visa is required. 

After completing certain degrees (for instance, Masters of Science) the student gets Optional Practical Training (OPT), under which the student is allowed to work full time for up to 29 months while in U.S. on a study visa.  However, a student can also apply for H1B visa (work visa) during or after the completion of OPT, and subsequently a student can apply for Green Card (permanent residency). 

Professionals with 7-8 years of work experience after completion of graduation can also apply under the student visa.  Such professionals can apply for MBA, PhD and all other Masters programs under the study visa category and subsequently get OPT for up to 29 months.  Further, during or after the completion of OPT, such professionals can also qualify for H1B visa and subsequently they can qualify for Green Card.  

7.  F-1 Visa Denials  

If your F1 visa application is denied, the reason and section of law you are denied under will be given to you in your paperwork. Some applications are denied because the applicant failed to provide necessary information or supporting documentation as required. Sometimes, however, you can be found ineligible for other reasons. 

Of course, if you do not meet the F-1 Visa Qualifications as stated above, you can expect to be found ineligible. For example, if you do not sufficiently demonstrate that the strong ties to your home country will influence you to return home after your stay in the US, you will be denied under INA section 214(b), Visa Qualifications and Immigrant Intent. 

Other common reasons for denial include Fraud or Misrepresentation, Unlawful Presence in the United States, Health-related grounds, Criminal-related grounds, or Security-related grounds. 

In such cases, you will have to consult with U.S. immigration lawyers, who will review the situation to see if any waivers may apply to reverse such denial. 

IV.  Visa Denials 

Over the past few years, travel to the United States has become increasingly difficult, and this trend is only increasing.  As many visitors have found out, obtaining entry into the United States, on either a temporary or permanent basis, can be a difficult journey of setbacks and denials.  The single biggest obstacle is the consular interview.  

During your visa interview, the consular officer at the U.S. Embassy will determine if you are qualified for the type of visa you are applying.  These people have the sole authority to approve or deny visa applications.  Effectively, the one interview that could forever change your life depends solely on one U.S. official, who may be in a bad mood.  

The consul is always right because the U.S. law sets out many standards under which a visa application may be denied.  The usual reasons for inadmissibility include medical or health-related grounds, previous immigration violations, lying/fraud in filling out applications and criminal convictions.  Most of the time, the consular officers are correct in their assessments. 

If a consular officer finds that you are ineligible to receive a visa, your visa application will be denied (refused) and you will be provided a standard reason for the denial.  There are many reasons an applicant could be found ineligible for a visa.  For instance, if you visited U.S. in the past and overstayed your visa (or extended it), it is an indication that you not intend to comply with the visa requirements.  Some reasons for denial can be overcome, while others are permanent. 

Below are some examples of visa ineligibilities: 

  • The applicant did not fully complete the visa application and/or provide all required supporting documentation (INA section 221(g))
  • The applicant did not establish eligibility for the visa category being applied for or overcome the presumption of being an intending immigrant (INA section 214(b))
  • The applicant was convicted of a crime involving moral turpitude (INA section 212(a)(2)(A)(i)(I))
  • The applicant has two or more criminal convictions for which the total sentence of confinement was 5 years or more (INA section 212(A)(2)(B))
  • The applicant did not demonstrate proof of adequate financial support in the United States and is denied under public charge (INA section 212(a)(4))
  • The applicant misrepresented a material fact or committed fraud to attempt to receive a visa (INA section 212(a)(6)(C)(i))
  • The applicant previously remained longer than authorized in the United State (INA section 212(a)(9)(B)(i)) 

After being found ineligible for a visa, you may reapply in the future by submitting a new visa application and paying the visa application fee again.  

Below we briefly discuss some of the more common reasons for visa denials: 

INA section 221(g) (Incomplete Application or Supporting Documentation).  A visa denial under this section is a “quasi-refusal” because the final determination is deferred by the consular officer.  It means that you did not submit all the required information, and therefore you are not eligible for this visa now, but your case is pending further action 

When the reason for the deferral has been addressed, the visa application for will be retrieved from the consular files, with the new information added, and the visa either will be issued or refused.  You have one year from the date you were refused to submit additional information, otherwise you must reapply for the visa and pay another application fee. 

INA section 214(b) (Visa Qualifications and Immigrant Intent).  This section applies only to nonimmigrant visa categories, and it states: 

“Every alien shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for admission, that he is entitled to a nonimmigrant status.” 

In other words, everyone applying for a non-immigration visa is regarded as someone who wants to stay in the U.S. permanently, until he or she can prove otherwise.  This applies to applicants for B1/B2 (visitor for business or pleasure), F-1 (student), and J-1 (exchange visitor) visas. 

To overcome the presumption of immigrant intent, you must demonstrate “strong ties” that will force you to leave the U.S. at the end of your temporary stay, otherwise your application will be rejected.  “Strong ties” are a combination of factors that bind you to Ukraine, including your job, real estate, bank accounts, business, investments, relationships with family and friends, etc.  Family ties and social ties are not counted the same way that employment or financial ties are (e.g., going to U.S. and leaving wife and kids at home is not as important as real estate, business and employment). 

Each person’s situation is different.  For example, in cases of younger applicants who did not have an opportunity to form many ties (and single young ladies), the consular officer will look at the specific intentions, family situations and long-range goals.  While conducting your interview, the consular officer will also consider your other circumstances, including travel plans (written itinerary) in the U.S., financial resources (bank statements, affidavits from relatives to support you financially), and any family ties in Ukraine that will ensure your departure after a temporary visit. 

The bad news with refusal under section 214(b) is that consular officers have absolute authority to make decisions as they see fit, while applicants have no right to administrative appeal and lawyers have no right to be present at the consular interview.  Worst of all, there is no appeal process, sono lawyer and no court can appeal their decision.  Once your case is closed, the consular section will not take any further action.  

The good news, however, is that this visa denial is not permanent.  The fact that you were unable to establish nonimmigrant status at one time would not preclude you from qualifying for a visa by showing a change in circumstances.  In our experience, the consul will often reconsider a visa denial if you can offer convincing evidence of how your personal, professional and financial circumstances have changed.  In any case, the only option in case of denial under 412(b) is to re-apply with any additional information or evidence of significant changes in your circumstances since your last application. 

In conclusion, U.S. consular officers have the unrestrained decision-making power on all visa cases under section 214(b).  While the U.S. State Department has the authority to review the consular decisions, such authority is limited to the interpretation of law, not the determination of facts.  The determination of whether you possess the required ties to Ukraine is a factual one, and therefore falls exclusively within the authority of consular officer.  The only way to change your prior visa denial is through the presentation of new convincing evidence of strong ties.  In other words, a difficult road lies ahead. 

INA section 212(a)(4) (Public Charge).  A visa refusal under this section means that the consular officer determined that you will become dependent on the U.S. government for your existence and financial support.  This refusal can be overcome in certain circumstances.  For instance, in immigrant visa cases, the U.S. sponsors who filed petitions may submit an Affidavit of Support.  Additionally, you should demonstrate to the consular officer that you will have financial support in the U.S. (e.g., your own funds, a job offer, etc.)  The consular officer will review the additional evidence to determine your eligibility to enter U.S. 

INA section 212(a)(6)(c)(i) (Fraud and Misrepresentation).  Refusal under this section means you tried to obtain a visa by willfully misrepresenting a material fact or committing fraud.  The penalty for lying is harsh: this is permanent ineligibility, so every time you apply for a visa, you will be found ineligible for this reason.  The consular officer will advise you if you can apply for a waiver of this ineligibility. 

INA section 212(a)(9)(B)(i) (Unlawful Presence in the U.S.).  You were refused a visa because you stayed in the U.S. after the expiration date of your authorized stay or you entered and were present in the U.S. without authorization.  In this case, you are ineligible for a visa for the following length of time: (a) three (3) years if unlawfully present in the U.S. for 180 days or longer, but less than one year; or (b) ten (10) years if unlawfully present in the U.S. for one year or longer. 

The simple truth is that U.S. visa denials are an unfortunate everyday reality for many applicants who are unprepared for the screening interview.  However, even after you have been denied a visa, there are certain avenues available to gain entrance into the United States.  First, you have to learn the reason why your visa has been denied.  Consular officers’ denials and their reasons vary from case to case, and at the end of your interview at the Embassy you will receive a form letter that specifies the reason for the denial.  That reason could range from a simple case of missing documents or forms to far more serious grounds for inadmissibility, such as criminal convictions, overstaying a previous visa, or downright lying and document forgery.  

In many situations, visa refusals may be overcome by furnishing additional information or documentation that establishes your eligibility, or by taking other actions (procuring letters of support from Congressmen, Senators, providing Affidavits of Support and other financial guarantees, etc.)  Please contact us to learn about what can be done in your personal situation.   

Appeal Process  

An appeal is a process for requesting a formal change to an official decision.  For non-immigrant visa denials under 214(b), there is no appeal process.  Instead, the U.S. regulations provide that all denials should be reviewed by a supervisor at the consular post.  If you wish to submit additional evidence, such review must take place within 120 days.  The supervisor, who reviews the visa refusal, has three options: (1) affirm the denial; (2) request an advisory opinion from the State Department; or (3) assume responsibility and re-adjudicate the case.  In this context, the lawyer’s job is to act quickly and professionally in an attempt to persuade the supervisor of the wisdom of re-interviewing the applicant or re-adjudicating the case. 

If the visa officer or chief consular officer made a mistake of law in refusing an application, the lawyer should seek an advisory opinion from the Advisory Opinions Division (AOD) of the State Department’s Visa Office.  All advisory opinion requests are routed through the Office of Public and Diplomatic Liaisons, Public Inquiries Division, which reviews all requests to determine whether they involve legal questions and, if so, they will obtain the record from the consulate and forward it along with the inquiry to AOD.  The response is usually given within 15 days.  Such advisory opinions are binding on consular officers. 

While no formal appeal process exists for 214(b) denials, if your application for U.S. immigration visa, Green Card or other issues has been denied or revoked by the U.S. Citizenship and Immigration Services (USCIS), in most cases that decision in may be appealed to a higher authority for review.  In immigration proceedings, the appellate review authority is divided between two separate government organizations: 

  • The Administrative Appeals Office (AA) within USCIS; and
  • The Board of Immigration Appeals (BIA), under the jurisdiction of the Executive Office for Immigration Review in the U.S. Department of Justice 

If your application was denied by USCIS, you have to review their written decision (form I-292) to learn the reasons for the denial, the proper appellate jurisdiction, the applicable deadlines and the correct USCIS form to file your appeal.  You must file the notice of appeal on USCIS form I-290B (Notice of Appeal to the Administrative Appeal Office) with the same office that made the original decision, with an explanation to support your appeal.  As a rule, an appeal must be filed within 30 days of the date of the decision. 

In conclusion, if your U.S. visa is denied, you may be confused and frustrated.  But there are strategies available to overcome the denial.  Our immigration law specialists, based in Kiev and Miami, have the necessary expertise in consular processing, and we are able to assist you in pursuing reconsideration or resubmission of an application, supervisorial review at the consular post, an advisory opinion, judicial review, a waiver or other strategies.  If you need a lawyer for your visa denial immigration case in Kiev, Ukraine, please contact us anytime.

Frishberg & Partners 2022