The ABCs of Immigration: Nonimmigrant Visas (Part I)- Visitor Visas
In this first series of articles, we will cover nonimmigrant visas. To understand nonimmigrant visas, one must first know some legal definitions.
The most common nonimmigrant visa is the B visa. There are two types of B visas: B-1 visas for business visitors, and B-2 visas for visitors for pleasure.
B-1 BUSINESS VISITORS:
The B-1 Business Visitor category is available to persons who can demonstrate that they 1) have no intention of abandoning their residence abroad and 2) they are visiting the US temporarily for business. Entry is, theoretically, granted for up to a year, but most B-1 admissions are approved for just the period necessary to conduct business and are normally permitted to stay no longer than 3 months.
Business visitors are quite limited in the activities in which they are permitted to engage. B-1 visa holders must not be engaging in productive employment in the US either for a US employer or on an independent basis. Work done in the US must be for a foreign employer and paid by the foreign employer. The work should also be related to international commerce or trade. The consulate will consider several factors when reviewing the case including 1) whether a US worker could be hired to perform the work, 2) whether the work product is predominantly created in the US, and 3) whether the work is controlled mainly by a US company. If the answer to any of these questions is "yes" then the B visa is likely to be denied. The following are some activities normally considered appropriate for the B-1 visa:
B-2 PLEASURE VISITORS
Of the more than 20 million nonimmigrants admitted annually to the US, more than three fourths come as tourists. The appropriate visa category for a tourist is the B-2 visa (a B-2 visa actually covers tourists, visits to relatives or friends, visits for health reasons, participation in conferences, prospective F-1 students, participation in incidental or short courses of study and participation in amateur arts and entertainment events).
The process for obtaining the B-2 visa can be quite simple or very difficult depending on the national origin of the applicant, the age and marital status of the applicant, and the applicant's ties to the US and his/her home country.
Tourists are normally given a six month visa which can be extended in some circumstances for an additional six months. Unlike some other nonimmigrant visas, application is made at a US consulate and no INS approval is necessary. Also, the applicant's spouse and children must independently qualify for the B-2.
In order to qualify for a tourist visa, an individual must meet a few broad requirements necessary to show nonimmigrant intent:
For a tourist to show nonimmigrant intent and demonstrate compliance with the above tests, the key issues are financial arrangements for the trip, specificity of trip plans, ties to the alien's home country and ties to the US.
More specifically, consular officers are instructed to consider the following factors:
With respect to financial arrangements, the alien should possess the following:
With regard to specificity of the trip arrangements, the alien should show such items as confirmed hotel reservations, car rentals, internal travel arrangements such as domestic flights or tourist packages, and/or a letter of invitation from a US source.
With respect to ties abroad, the alien could demonstrate steady employment, substantial business or property interests abroad and close family ties. A real property lease or ownership is helpful as well. These items are particularly important if the alien has close ties with the US such as close family members here. The scrutiny in this category is particularly tight for persons from "high-risk" countries - aliens from countries with a high rate of visa refusal and a low rate of compliance - who are single, young and well educated.
At the consulate, the applicant should present the OF-156 Nonimmigrant Visa Application, passport, photos, the application fee and supporting documentation. Note that Form OF-156 may vary slightly from consulate to consulate. Visa fees will also vary. It is a good idea to check to see if the consular post has a web site with specific information on visa processing. Go to http://www.state.gov/www/regions_missions.html to find links to online consular posts.
In most cases, successful applications for a visitor visa will be given a multiple entry visa stamp that stays valid for ten years. The stamp will often say “B-1/B-2,” indicating the person can use the visa to enter to conduct activities falling under either classification. Note that a multiple entry, multiyear visa DOES NOT mean that a person can stay in the US for as long as the visa is valid. Rather, the US has a “two ticket” system to entering. The visa is your first ticket and allows you to seek admission at a US point of entry (an airport in the US, a land crossing port, or a US port). The INS inspector at the point of entry will issue a second “ticket,” the white I-94 card authorizing the visitor to stay in the US for a specified period of time (normally less than six months). Thus, the 10 year visa would allow a person to seek admission multiple times over the 10 years. But an inspector will determine the length of time authorized for each visit.
It is sometimes possible to change from a B-1 or B-2 visa to another visa once in the US. Readers are cautioned, however, that the INS could deny a change of status request if they believe the person entered with the intention of switching to another visa. This is particularly true for changes to student visas and when someone applies for a change very soon after entering the US. Change requests made within 30 days are particularly suspect unless a good explanation for the change of heart can be provided or the intention to apply for a change was disclosed in advance to a consular officer or INS inspector.
Nationals of some countries are allowed to participate in the Visa Waiver Pilot Program (VWPP) which allows visits for up to 90 days without having to obtain the B-2 visa. The waiver countries are the following:
Andorra, Argentina, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, The Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, the United Kingdom, and Uruguay. All Canadian citizens and certain Canadian "landed immigrants" are also exempt from getting a visa under a different law.
While being able to travel without a visa is convenient for many, it is important to be aware of a few key restrictions on people entering under the VWPP. First, unlike a normal B-2 visas under which a visitor will be authorized to stay for six months, VWPP entrants can only stay for 90 days. Second, it is not possible to apply for an extension of stay or a change of status to another non-immigrant or immigrant classification. Finally, a VWPP entrant can normally not apply for a new visa at a US consulate in Mexico or Canada and reenter the US.
About The Author
Gregory Siskind has experience handling all aspects of immigration and nationality law and has represented numerous clients throughout the world. Mr. Siskind provides consultations to corporations and individuals on immigration law issues and handles cases before the Immigration and Naturalization Service, the Department of State, the Department of Labor and other government agencies. Gregory Siskind is also committed to community service. He regularly provides free legal services to indigent immigration clients and speaks at community forums to offer information on immigration issues.
After graduating magna cum laude from Vanderbilt University, Gregory Siskind went on to receive his law degree from the University of Chicago. For the past several years, he has been an active member of the American Immigration Lawyers Association and he currently serves as a member of the organization's Technology Committee. He is the current committee chair for the Nashville Bar Association's International Section. Greg is a member of the American Bar Association where he serves on the LPM PublishGregory Siskind has experience handling all aspects of immigration and nationality law and has represented numerous clients throughout the world. Mr. Siskind provides consultations to corporations and individuals on immigration law issues and handles cases before the Immigration and Naturalization Service, the Department of State, the Department of Labor and other government agencies. Gregory Siskind is also committed to community service. He regularly provides free legal services to indigent immigration clients and speaks at community forums to offer information on immigration issues.
Greg regularly writes on the subject of immigration law. He has written several hundred articles on the subject and is also the author of the new book The J Visa Guidebook, published by Matthew Bender and Company, one of the nation's leading legal publishers. He is working on another book for Matthew Bender on entertainment and sports immigration.
Greg is also, in many ways, a pioneer in the use of the Internet in the legal profession. He was one of the first lawyers in the country (and the very first immigration lawyer) to set up a web site for his practice. And he was the first attorney in the world to distribute a firm newsletter via e-mail listserv. Mr. Siskind is the author of the American Bar Association's best selling book, The Lawyer's Guide to Marketing on the Internet. He has been interviewed and profiled in a number of leading publications and media including USA Today, the New York Times, the Wall Street Journal, Lawyers Weekly, the ABA Journal, the National Law Journal, American Lawyer, Law Practice Management Magazine, National Public Radio's All Things Considered and the Washington Post. As one of the leading experts in the country on the use of the Internet in a legal practice, Greg speaks regularly at forums across the United States, Canada and Europe.
In his personal life, Greg is the husband of Audrey Siskind and the proud father of Eden Shoshana and Lily Jordana. He also enjoys collecting rare newspapers and running in marathons and triathlons. He can be reached by email at GSiskind@visalaw.com
Amy Ballentine is an associate in Siskind, Susser & Haas's Memphis, Tennessee office. She graduated Cum Laude with a Bachelor of Arts degree in English Literature from Rhodes College in 1994. While in law school at the University of Memphis she was a member of the law review staff as well as a published author. She also worked with the local public defender’s office in death penalty cases. In May 1999, she graduated Cum Laude from the University of Memphis Law School. She is a member of the American Immigration Lawyers Association. She can be reached by email at email@example.com