A B-Visa, including B-1 and B-2 nonimmigrant visa categories, is defined as being available to foreign nationals who have a residence in a foreign country, which he [she] has no intention of abandoning and who is visiting the United States temporarily for business or for pleasure. 8 U.S.C. Sec. 1101(a)(15)(B).
Both the B-1 “visitor for business” and the B-2 “visitor for pleasure” visas require a demonstration of nonimmigrant intent. Generally, these visas are issued for a period of six (6) months in duration. However, under certain circumstances, these visa may be issued for periods of up to one (1) year. 8 CFR 214.2(b).
A preliminary petition to the USCIS is not required for B-visa applicants. The B-1 and/or B-2 visa applications are generally made at the U.S. Consulate Office having jurisdiction over the individual’s place of residence. The most important single element for the consideration of the B nonimmigrant visa package by U.S. Consulate Officials is the demonstration that the foreign national has nonimmigrant intent.
Nonimmigrant intent means that the foreign national intends to depart from the U.S. following his/her temporary stay and does not intend to abandon his/her foreign residence. Consular Officials maintain a lookout for those individuals who attempt to enter the United States as temporary visitors in order to gain entry to establish permanent residence.
The burden of proof of an “unabandoned foreign residence” must be established by the visa applicant. It is generally recommended that the nonimmigrant visa applicant present proof of his/her unabandoned foreign residence as part of the nonimmigrant visa application package. Such proof may include, but not be limited to:
(1) financial ties to the country of origin (e.g., bank account records);
(2) ties to a religious community (e.g. documents demonstrating membership in a local religious organization and/or ties to a religious community);
(3) proof of property ownership (e.g., deeds).
It is generally advisable that clients applying at the U.S. Consulate bring original documents that demonstrate nonimmigrant intent with them if they are notified for an interview at the U.S. Consulate Office or they can include such documentation as an exhibit in the nonimmigrant visa application package. (The practitioner must be especially careful to review any documents that the foreign national may seek to show to a U.S. Consulate Officer and be sure that such documents do not contravene the substance of the case that has been established for that foreign national or, if applicable, the petitioner).
The application for a B-visa at the U.S. Consulate Office abroad (as is the case with may other nonimmigrant visas) is made on a Form called the DS-156, Standard Nonimmigrant Visa Application, and, if applicable DS-157. It is imperative that the practitioner be familiar with the practice at the U.S. Consulate Office where the application is being submitted to avoid unnecessary denials or long waits by the client.
Documents Needed for a B-Visa
In general, a nonimmigrant B-Visa application package may consist of the following documents:
(1) cover letter from the attorney explaining the classification sought;
(2) USCIS Form G-28, Notice of Appearance as Attorney or Representative;
(3) DS-156, Standard Nonimmigrant Visa Application (some of the questions on this document are traps for the foreign national and the practitioner must be mindful of each of the elements in the visa category requested);
(4) A round trip plane ticket or an itinerary from a travel agency showing a distinct date of departure and return;
(5) Supporting documentation in appendix form (the supporting documentation shall depend upon the visa classification sought).
The practitioner may direct the client to go to the Consulate Office with the foregoing documents, his/her passport and a fee for the MRV. Following appropriate consulate processing (which varies from U.S. Consulate office to office), the client should receive an MRV in his/her passport which may be used to apply for entry into the United States for a temporary stay consistent with the characteristics of the underlying visa application.
As previously stated, the B-2 “visitor for pleasure” visa is generally granted for a six (6) – month period. The term “pleasure” is defined as being “legitimate activities of a recreational character, including tourism, amusements, visits with friends or relatives of a fraternal, social or service nature.” 22 CFR 41.31(b)(2).
Foreign nationals who intend to come to the United States to participate in amateur musical, sports or similar events without receiving remuneration are also eligible for B-2 nonimmigrant visas. With respect to the B-1 “visitor for business” category, the term “business” is defined as being “legitimate activities of a commercial or professional nature. It does not include purely local employment or labor for hire. . . ” 22 CFR 41.31(b).
When making a determination for eligibility by the foreign national for a nonimmigrant visa category, the Consular Official makes findings of fact and findings at law (which, if inappropriate, may be reviewed in a review process called an “Advisory Opinion” which is placed with the appropriate Official having jurisdiction over the particular consulate office in the Visa Office which is a division of the U.S. Department of State in Washington D.C.).
Factors to Consider
Reviewing a B nonimmigrant visa application of a foreign national, a U.S. Consulate Official may take into account numerous factors. These factors are of particular assistance to the practitioner who must advise his/her client regarding an interview for a nonimmigrant visa at the U.S. Consulate Office.
While the following factors are mostly relevant in the B-2 “visitor for pleasure” context, they are useful guidelines for assisting practitioners in focusing on the issues that are most important to the Consular Officials:
Is the period of time for which the applicant is planning to come to the U.S. reasonably consistent with the purpose of his/her visit, and has the intending nonimmigrant established with reasonable certainty that he/she shall leave the United States at the end of his/her temporary visit?
Are the arrangements for defraying the expenses of the applicant’s visit in the United States credible and is it believable that the applicant will not have a need to rely upon employment in the United States? If the expenses for travel and stay in the U.S. are based upon support assurances from friends or relatives, do there exist adequate ties which lend credibility to the undertaking of the prospective sponsor?
Does the applicant have reasonably permanent employment or business connections that would cause him/her to depart from the United States?
Does the applicant have family, social, cultural or other associations which would cause him/her to depart from the United States?
Does the applicant have specific and realistic plans for the contemplated visit, or does the individual manifest vague and uncertain intentions with respect to his/her stay in the U.S.?
Has conscious consideration been given by the applicant to the duration of the proposed stay in the U.S. or are the applicant’s intentions expressed in terms of remaining in the United States for the maximum period of time that the authorities will allow?
If the applicant is the principal wage earner in a family unit, has she/he adequately explained how his/her family will be provided for while the wage earner is in the U.S. and, if the proposed stay is lengthy, has he/she explained why he/she would wish to be separated from his/her family for such a long time?
The foregoing factors are merely guidelines and serve to assist an individual to the practitioner’s focus upon some of the key elements for B visa approval.
B-Visa for Business
In addition to the foregoing factors, the B-1 “business visitor” may be required to prove some additional items. The intending B-1 “business visitor” will have to prove that the business activities in which he/she is planning to engage are international in scope and that payment of his/her salary and/or commissions will be made to him/her outside the United States. Thus, the nonimmigrant business visitor may not be remunerated in the United States by the foreign employer. However, the business visitor may be paid his/her “ordinary and necessary” business expenses.
The definitions of what are considered “ordinary and necessary” business expenses are vague. However, payment of such “ordinary and necessary” business expenses to a B-1 nonimmigrant should be appropriately documented by the payee in the event of administrative scrutiny.
The following is a non-exhaustive list of some of the activities undertaken by foreign nationals who have been determined as being classifiable for B-1 “business visitor” purposes:
Foreign nationals coming to the U.S. to engage in commercial transactions which do not involve gainful employment in the United States, to negotiate contracts, to consult with business associates, to litigate, to participate in scientific, educational, professional or business conventions or conferences or to undertake independent research (including market research and analysis);
A foreign national, other than a member of the entertainment profession, coming to the United States to perform services who would be classifiable as an H-1B (discussed herein), but who will receive no salary or other remuneration from a U.S. source other than an expense allowance or other reimbursement for expenses incidental to their stay;
A foreign national employed abroad coming to undertake training who would be classifiable as an H-3 nonimmigrant but who will continue to receive a salary from the foreign employer and will receive no salary or other remuneration from a U.S. source other than an expense allowance or other reimbursement for expenses incidental to his/her stay;
A foreign national invited to participate in the training of Peace Corps volunteers or coming to the United states under contract pursuant to sections 9 and 10(a)(4) of the Peace Corps Act, unless he/she qualifies for A nonimmigrant visa classification;
A foreign national invited to participate in any program for the purpose of furnishing technical information and assistance under section 635(f) of the Foreign Assistance Act of 1961;
Ministers of religion who temporarily exchange pulpits with their American Clergy and who continue to receive payment from the foreign religious organization and receive no salary from the religious organization in the United States;
A foreign national who is a member of the board of directors of a U.S. corporation seeking to enter the United States to attend a meeting of the board or to perform other certain functions resulting from membership on the board.
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