Tips on Visitor Visas
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Visitor Visa tips

In 2007, 56 million international visitors came to the United States. The B1/B2 visa is the principal visa category for foreign visitors. Generally it is granted for ten years and allows for a six month stay at each visit, in rare cases up to a year if justified.

Relationship between Length of Visitor Visa and Period of Authorized Stay

Some confusion exists between the duration of the B1/B2 visa and the stay that is authorized in the U.S. each time it is used. The B1/B2 visa in the visitor's passport is a credential put there by the U.S. consulate that allows the holder to request an authorized stay from the Customs and Border Protection (CBP) agent at the port of entry. If the officer grants a stay, he or she staples a white I-94 card in the entrant's passport at time of arrival, with the current date, port of entry, and date of expiration stamped on it and the passport page. The maximum period of stay is a year but usually is granted only in six months increments. An initial I-94 stay of six months can be extended in-country, one time with a sufficient explanation of the reasons for it, and for an additional six months. It is a serious mistake to conclude that a ten year visitor visa gives the holder the right to visit the U.S. for a period of ten years. One of the consequences could be a period of unlawful presence that will trigger a bar against returning to the U.S. for a period of years if the person departs the U.S. after having overstayed the I-94 or visa waiver period for more than 180 days (3 year bar) or more than 365 days (10 year bar).

Visa Waiver Program

The United States, with other countries, also has a visa waiver program. It allows persons from a list of specified countries to enter the U.S. without a visa at all for up to 90 days, but then they must leave again. They gain convenience and ease of entry, and avoid a trip to the consulate for a visa, but they give up in return all rights in advance to contest removal proceedings against them. To obtain a visa waiver, an electronic form must be filled out online in advance of travel. At the port of entry, the entry is recorded electronically but not always stamped in ink in the passport. This absence of a stamp can create problems later on, if proof of legal entry is requested. If the immigration officer at the port of entry does not stamp the passport of a visa waiver entrant at the port of entry, it is appropriate to request entry stamp in ink for just this purpose.

Change of Status to and From Visitor

Change of status within the U.S. for a B1/B2 visitor holding an I-94 card to another visa category is possible, and to visitor visa status from other non-immigrant categories, such as student, H-1B worker, investor, etc. to avoid a period of unlawful stay at the conclusion of the previous visa. It is also possible to adjust status within the U.S. as a permanent resident through marriage to a U.S. citizen while on a visitor's visa. Although generally one cannot change status in the U.S. from a visa waiver to another non-immigrant visa category, adjustment of status to permanent resident as the immediate relative of a U.S. citizen may still be possible, even if the authorized stay on the visa waiver has expired and the person is present illegally in the U.S. as an overstay.

Canadian Visitors

Canadians can also enter the United States without a visa and stay for up to 180 days, without any visa stamps in their passport. I once had a Canadian client who came to the U.S. on his own private boat, walked onto the pier, without ever seeing an immigration official. He was in legal status for the first 180 days, with the same rights as if he had a B1/B2 visa and I-94.

Mexican Visitors

Mexicans who commute often into the U.S. can obtain a border crossing card from the U.S. Consulate in Mexico, which allows a stay in the U.S. of up to 30 days within 100 miles of the border. Holders of a border crossing card can also request an I-94 at the time of entry, which will operate as an entry on a B1/B2 visa rather than simply on the border crossing card alone, allowing travel beyond the 100 mile border limit and for a full six months instead of 30 days.

B-1 and B-2 Categories Differentiated

Most visitors who enter on a visa possess a B-1/B-2 visa. The immigration official at the port of entry determines which category to admit the visitor in. B-1 is a business visitor. Business visitors can attend conferences, meetings of boards of US companies of which they are directors, do preparatory investigation and negotiations for investments in the US, and can even do post sales repairs and training of computer equipment in the US, but they must be paid from a foreign source, except for expenses to attend corporate meetings in the U.S. B-1 visa holders can do many of the functions of higher visa categories such as H-1B , but within very proscribed limits. As an example of a creative use of the B-1 visa, a crew of Mexican field laborers were issued B-1 visas to enter the US on a truck from Mexico, and cut wild grasses on Arizona rangelands on behalf of a Mexican manufacturer of brooms in Mexico. Because they were paid from Mexico and thus did not take work away from a US worker, they were each issued a B-1 visa and an I-94 valid for six months each time they entered the US.

Other visitors are B-2 visitors. They include visitors for pleasure, medical treatment or to investigate U.S. schools, or parents accompanying their children to school in the U.S. B-2 visitors also include family members accompanying B-1 visitors. In the absence of an explanation at the port of entry justifying a B-1 visa, it is likely that the agent will presume a visit for pleasure and stamp the I-94 as a B-2 visitor.

Because there is no retirement visa available in the U.S., some non-citizens buy retirement homes and stay in them only so long each year as they are allowed to visit on a visa waiver or B1/B2 visa. They must be careful not to be mistaken by the authorities for visitors who are attempting to live continuously like permanent residents in the U.S., which is not permitted.

Procedure for Visitor Visa Issuance

A B1/B2 visa is obtained abroad at a consulate in a foreign country, though one who is lawfully in the United States in another visa category such as student (F-1) can change status to that of a visitor for the period of authorized stay without first having to travel abroad for a visa.

Consulates can issue visitor visas to nationals of third party countries but usually refuse to do so unless the U.S. consulate in the home country is closed (such as Libya) in which case a neighboring country's U.S. consulate (in the example given, Tunisia) is ordered to take up the slack. Otherwise, U.S. consulates usually insist on proof that the third party national has close ties such as permanent residency in the country of non-nationality where a visitor visa is sought. Thus, a person who is a national of Russia and applies in Mexico for a visitor visa must establish an FM visa status in Mexico to the U.S. consulate before an application for a visitor visa to the U.S. will be entertained in Mexico.

When seeking a visitor visa, consular offices usually try to ensure as a priority that the visa is going to be used for the stated purpose and not as a stepping stone to seek a change of status within the U.S. of a more favorable visa category, such as permanent residency through intended marriage to a U.S. citizen and adjustment of status, or a student visa to a school where admission has already been pre-arranged. In such cases, entry on a B1/B2 visa is pretextual, which is a type of visa abuse, which is a grounds for not only denial at the U.S. consulate of the visitor visa abroad but also denial of adjustment of status once inside the United States and attempts to change to the more desired visa category.

When issuing visas to visitors, U.S. consulate officers usually require documentary proof that the person intends to return home at the end of the stay. This will include proof of a return ticket at the conclusion of the stay, proof of funds sufficient to keep the visitor off of public welfare benefits during the stay, and a residence and job to return home to in the foreign country at the end of the U.S. stay

Young persons of University or marriagable age are often viewed with suspicion and denied at the consulate level because of the prevalence of entry into the U.S. with plans to change status to a permanent resident through marriage or a student by pre-arranged admission to a school.

It is dangerous to lie to a consular officer about the grounds for the issuance of a visa, or any other matter, because the misrepresentation can lead to denial of another visa category or removal against an entrant who is an inadmissible alien, unless a waiver (which operates functionally like a pardon) of the misrepresentation can be obtained.

There is no procedure to appeal a denial of a visa at a consulate except to request to speak to a supervisor. The most practical remedy for a denial of a visitor's visa is a second petition with the defects of the first one corrected.

For assistance call Messing Law Offices (520) 512-5432 for a professional Arizona immigration Attorney.