Two Bows In The B Visa Quiver: B Visas Based On Medical Treatment And A Jones Act Claim
A client who simultaneously seeks to apply for a United States visa to obtain medical treatment and to pursue a Jones Act  claim may enjoy particular advantage in qualifying for a B visa.
Enacted in 1920, the Jones Act creates a right of action entitling foreign seamen to a jury trial in the United States for injuries sustained on the open seas in the course of their employment. Due to policy implications, Jones Acts claims may be brought against foreign employers and shipowners who have substantial American business contacts. According to the legislative history and court rulings interpreting the Jones Act, Congress adopted this legislation to defend the interests of seamen because their protection provides concomitant protection to Americans abroad and insures that American standards of care and safety will become the universal standards aboard vessels which often carry and service Americans. 
In allowing aliens to seek relief in United States courts, the Jones Act also supports the longstanding common law “maintenance and cure” obligation of employers to pay the medical and living expenses of employees injured during the course of their employment on the high seas. Regarded by the Supreme Court as “an ancient duty of a vessel and her owner”  that is independent of an employer’s negligence, the maintenance and cure obligation extends beyond the duration of the voyage to the period when the injured seaman reaches “maximum medical recovery.” 
In many cases, a foreign national bringing a Jones Act claim will be required to participate in civil legal action within the United States and will require specialized medical treatment that is unavailable in the claimant’s home country. Each of these activities provides an independent basis for entry on a B visa.
As defined by § 101(a)(15)(B) of the Immigration and Nationality Act, a B visitor is “an alien… having a residence in a foreign country which he [has] no intention of abandoning and who is visiting the United States temporarily for pleasure.” The interpretation of the term “pleasure” has positive implications for the success of a B visa application by a Jones Act claimant because it supports both activities that a typical Jones Act claimant will participate in. The Department of State interprets the term “pleasure” to include the legitimate pursuit of medical treatment in the United States.  Moreover, the Department of State has stated in the Foreign Affairs Manual that aliens pursuing or involved in civil litigation in United States courts may gain entry through a B visa. 
With two discrete and independent grounds to qualify for a B visa, the Jones Act claimant seeking medical treatment in the United States is able to present a stronger case for entry into the United States.
How a Jones Act Claim May Support a B Visa Application
The United States Secretary of State’s cable to all diplomatic and consular posts on issuance of nonimmigrant visas for medical treatment issued on November 19, 2001, states that “each medical visa application should be given a sympathetic and thorough hearing.”
The Jones Act claimant has several supporting arguments in her favor. As an initial matter, the employer’s duty to pay for living expenses and medical treatment during the applicant’s stay in the United States is absolute and does not depend on the success of the applicant’s Jones Act suit.  Citing the employer’s maintenance and cure obligation, either fulfilled or capable of being recovered, the applicant may confidently assure state department officials that upon entry into the United States, he presents no danger of becoming a public charge. Further, the obligation does not impose upon the injured seaman a duty to mitigate damages by engaging in other work. Therefore, the applicant has no incentive to engage in illegal work during the course of treatment in the United States. Since this obligation continues until the injured seaman reaches “maximum medical recovery,” the applicant may also be in a position to receive an extension of stay depending on the severity of his injuries.
Beyond issues of medical treatment, the Jones Act claimant’s application is supported by the claimant’s need to participate in his or her case. Since the Jones Act reflects such a strong public policy for safety and protection on the high seas, the applicant may urge consular officers that granting the B-2 visa serves an overriding public interest. In addition to allowing the applicant to vindicate these essential rights, granting the visa is also crucial to the effective management of a damages action being tried before a jury.
Such arguments proved crucial to the successful B-2 visa application of a client who was injured during the course of her employment with a cruise liner. While on duty at a foreign port, the client sustained extensive injuries that resulted near complete amputation and massive vascular and nerve damage to her arm. At the time of the incident, it was determined that the specialized emergency treatment she required was not available at port and she was flown in to the United States. While in the United States, the client underwent extensive reconstructive surgery and months of intensive specialized physical therapy. During this period, her employer accepted responsibility for and complied with its maintenance and cure obligation. With further surgeries and therapy scheduled in the United States, the client was granted permission to return to her country for a short family visit. In her home country, the client sought a B-2 visa to re-enter the United States to resume her specialized course of therapy and to undergo additional surgeries but was initially denied the visa on the grounds that she did not have the required evidence.
At this point the client consulted us and we reformulated her application to reflect her position as an individual seeking specialized medical attention unavailable in her home country and as a Jones Act claimant. We incorporated the above argumentation into her application with substantial supporting documentation. Letters from her employer acknowledging their maintenance and cure obligation together with an Affidavit of Support demonstrating that the client would not become a public charge were attached to her visa application. Pleadings attached to the application further illustrated that the client was also pursuing litigation, was scheduled to be deposed and that she was at risk for being held in contempt of court if the visa application were to be denied. Lastly, her medical records, letters from her healthcare providers in the United States and medical experts in her country indicated the specialized course of treatment the client desperately needed was not available in her home country. Her B visa application was granted – due in no small part to the added narrative and urgency of her Jones Act claim.
7 The only qualifications are situations where medical treatment is offered by the employers’ in-house personnel or private physicians and the injured foreign seaman elects treatment by a provider of his own choosing. In that case, the employer is not responsible for the cost differential between the employers’ chosen provider and the seaman’s provider.
© Hector A. ChichoniThe authors wish to extend special thanks to Marlyse McAQuillen for her assistance.
Hector A. Chichoni practices law with Squire Sanders & Dempsey LLP and co-chairs the immigration practice in Florida. He focuses on all aspects of US immigration law and global human resources strategic planning. Mr. Chichoni has a vast legal background and experience which covers 10 years of practice in US immigration and complex export control matters. He is an author, a legal presenter, and a lecturer in both fields.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.