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B-1/B-2 Visa Processing Update

by Brian Bolton

The past year has seen a number of important changes in processing requirements for B-1/B-2 (business and tourism visitor) visas to the United States. In order to ensure compliance with these changes and to minimize potential problems during the B-1/B-2 application process, immigration attorneys should be aware of pertinent updates to the Foreign Affairs Manual (FAM), the Department of State's collection of guidance to consular officers.

B-1 in lieu of H-2

The FAM has traditionally provided for a "B-1 in lieu of H" exception to the general rule prohibiting work in the United States by B-1 business visitors. Per this exception, eligible employees of overseas companies have been permitted to travel as B-1 visitors to render temporary services without the benefit of an approved H-1B, H-2B or H-3 petition (as the case may be).

In recent years H-2B qoutas have been reached before some potential employers were able to obtain visas for their would be foreign national workers other employers have discovered that increased scrutiny of the "seasonality" of their workload has complicated their efforts to obtain approved H-2B labor certifications. In the face of such pressures, some of these employers have reportedly resorted to encouraging foreign nationals to use B-1 visas to travel to the United States for the purpose of performing H-2B work. However, a recent change to 9 FAM 41.31 N11 has eliminated the possibility of "B-1 in lieu of H-2" travel. In other words, all foreign nationals performing seasonal or intermittent labor must now have an approved labor certification and hold a corresponding H-2A or H-2B visa.

New Visa Annotations as Cues for CBP

In an effort to curb a rising trend in visa abuse, consular posts have begun inserting detailed notes in the Consolidated Consular Database (CCD) regarding the travel plans of applicants who are issued new B-1/B-2 visas, particularly in borderline cases. This practice is encouraged by new guidance at 9 FAM 41.113 N2. This same FAM provision also advises consular officers to exercise "particular care" when entering issuance notes for "odd or high profile cases". These case notes are intended to help focus Custom and Border Protection (CBP) officers scrutiny of foreign nationals arriving at American ports of entry. By means of the notes from consular officers, CBP agents can examine travelers with regards to the information they disclosed during their visa interviews. For example, if a foreign national obtained a visa for the stated purpose of taking a two week vacation with his parents but then arrives alone at the port of entry holding a reservation for a return flight six months hence, the CCD notes can help CBP agents detect the possible ruse.

Given that CBP officers do not have access to the CCD at Primary Inspection, consular officers electronic remarks are available only when the foreign national is being examined in Secondary Inspection. Knowing this, some consular officers are using a novel visa annotation ("B-2 CCD") to subtly cue Primary Inspection officers to the possible for Secondary Inspection.

The "B-2 CCD" visa annotation is a consular officers' way of communicating to CBP officers that the CCD contains detailed notes regarding the travel plans that the foreign national outlined during the visa interview. In effect, the annotation invites CBP to examine the traveler in light of the previously stated plans; if the travelers story at port of entry does not match what was represented during the visa interview, then there may be admissibility issues.

Personal or Domestic Servants

Another recent FAM revision places additional conditions on visa issuance to personal or domestic servants traveling in B-1 status (as well as those why, by dint of their employers's status, can qualify for A-3, G-5, or NATO-7 visas). The new 9 FAM 41.31 N9.3-6 (and related sections) requires consular officers to ensure that domestic servants applying for visas to accompany their employers to the United States are aware of their rights under American immigration and labor laws. This provision, established by the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, requires that consular officers confirm that such an applicant has received, read, and understood a pamphlet prepared by the Department of State that discusses "procedural issues, legal rights, and available legal resources concerning...the illegality of slavery, peonage, trafficking in persons, sexual assault, extortion, blackmail, and worker exploitation in the United States." If the applicant has not received the pamphlet, the consular officer is enjoined to provide an "oral disclosure" that elucidates such topics as "the availability of services for victims of human trafficking and worker exploitation in the United States, including the victim services complaint hotlines".

Religious Worker

Recent cable guidance from the Department of State has directed consular officers' attention to 9 FAM 41.31 N9.1, which states, inter alia, that B-1 can be appropriate classification for ministers of religion, members of religious denominations, and volunteers for religious organizations. The telegram, 09 State 13747, reminds consular officers that religious workers who do not meet the two year membership requirement for the R-1 visa classification may be alternatively classified as B-1. Religious workers in B-1 status must not receive a salary from U.S. sources, but they may "be supported by offerings contributed at each evangelical meeting" or receive "an allowance or other reimbursement for expenses incidental to the temporary stay."

Supporting Documentation

Finally, a FAM revision pertaining to all nonimmigrant visas (NIV) is particularly relevant to B-1/B-2 applications. For some time, 9 FAM 41.105 N1 has admonished consular officers to "carefully consider the necessity of requesting or considering" documentation that is not specifically required for nonimmgrant classifications. While certain documents are indispendable for some visa classifications (for example, F-1 student visas, for which the I-20 is a sine qua non for issuance), the B-1/B-2 classification is notable for not requiring any specific supporting documents that establish an applicant's eligibility.

Earlier this year, the Department of State took a further step towards paperless adjudication by adding the following sentence to 9 FAM 41.105 N1: "If local documents are unreliable, easily and often forged, or otherwise implausible, you should reconsider the utility of requiring them of applicants, as they add no value to the NIV adjudication." Clearly, mala fide applicants can obtain a fraudalent reproduction of any document that a consular post might require. Mandating that would be travelers bring laundry list of items to the embassy serves to line the pockets of counterfeit-document vendors, leaves overworked consular officers drowning in unreliable information, and sets up some marginal applicants for the harsh disappointment of not obtaining a visa even though they have "complied with all the requirements." Abandoning the practice of requiring nonobligatory documents-particularly in the B-1/B-2 visa context-will hopefully humanize the visa appplication process by demonstrating to the people on both sides of the interview window that individuals are what matters most, not pieces of paper.

About The Author

Brian Bolton is Consular Affairs Specialist at Liam Schwartz & Associates. A former Foreign Service Officer, Brian has worked at U.S. Embassies in Mexico City, London, and Tel Aviv, as well as serving in the Department of State in Washington, DC. He holds a degree in linguistics and cognitive science from the University of Virginia. Brian may be reached at:

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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