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Temporary Visitors for Business or Pleasure

The B-1 and B-2 nonimmigrants typically require visas to enter the U.S. B-1 and B-2 nonimmigrants can be admitted for an initial period of up to 6 months which is reflected on the Form I-94. (see Visa Waiver Pilot Program (VWP) They are allowed to file an extension of stay for up to an additional 6 month period or an application to change their status to another nonimmigrant classification or immigrant status if they are so eligible. The WB and WT nonimmigrants are entering under a visa waiver program and are visa exempt and are, therefore, not required to apply for a visa at a U.S. Consulate prior to entering the U.S. Only citizens of certain countries are eligible for WB and WT entrances. These are, for the most part, limited to members of the European Economic Community such as the U.K., France and Germany and to a few other select countries which have mutual agreements that allow U.S. citizens to travel freely to their countries such as Japan and Australia.

The most widely known nonimmigrant visa category is the visitor visa, which is used by aliens who wish to enter the United States temporarily for business purposes (B-1) or for tourism, visit to relatives and friends, or similar reasons (B-2). Other categories of nonimmigrant visas are required for persons who wish to enter as representatives of foreign government (A & G), in transit (C), as crewman (D), treaty traders and investors (E), students in academic or language programs (F), temporary workers and trainees (H), journalists (I), exchange visitors (J), fiance(e)s of U.S. citizens (K), intracompany transferees (L), and students in vocational or other nonacademic programs (M), the parents of certain special immigrants (N), temporary workers of extraordinary ability (O), athletes and entertainers (P), cultural exchange visitors (Q), and religious workers (R). A nonimmigrant visa for a particular category is valid for entry only for the purpose for which it was originally issued. For example, a student visa cannot be used for entry as a visitor, nor can the posessor of a visitor visa enter to study. A visa is not a guarantee of entry into the United States.

The bearer of a visa is subject to inspection at the port of entry by U.S. Immigration officials who have authority to deny admission. Therefore, the recipient of a visa should carry with him/her, for possible presentation to immigration inspectors, the evidence submitted to the consular officer when the visa was obtained. The validity period shown in a nonimmigrant visa relates only to the period during which it may be used in making application for admission into the United States; it does not indicate the length of time the alien may apend in the United States. The period for which the bearer of a nonimmigrant visa is authorized to remain in the United States is determined by the U.S. Immigration authorities at the port of entry. A nonimmigrant who remains in the United States beyond the period for which he/she has been granted permission to stay may become subject to deportation.

Certain categories of nonimmigrant visas require special documentation which can be furnished only by an authority in the United States. These categories include students, who must have a valid form I-20 A-B or I-20 M-N issued by the prospective school; exchange visitors, who must have a Form IAP-66 issued by the sponsoring organization; and temporary workers and trainees, intracompany transferees, fiance(e)s of U.S. citizens, athletes and entertainers, and cultural exchange visitors, all of whom must have a specific petition filed on their behalf and approved by the U.S. Immigration and Naturalization Service. There is a visa application fee whether or not the visa is issued. In addition, there may be an additional fee if you receive the visa. This fee is approximately the same as that which is charged by your government to a United States citizen for a similar type visa. Contact the U.S. Embassy, Consulate General or Consulate in the district where you reside or where you will apply for your visa for more information.

There are four basic types of nonimmigrant visitors to the U.S. They are B-1 visitors for business, B-2 tourists or visitors for pleasure, WB waiver for business and WT waiver for tourist. The B-1 visa is the most important visa in international commerce.

The common factors for all visitors are that the they are coming to the U.S. temporarily, they have a foreign residence abroad that they have no intention of abandoning and they will not work or study in the U.S. Persons who are coming to the U.S. primarily to benefit an overseas Employer enter as either B-1 or WB nonimmigrants; those persons who are entering for personal reasons enter as B-2 or WT nonimmigrants. For B-1 and WB business visitors, the list of permissible activities includes engaging in commercial transactions not involving gainful employment in the U.S.

The B-1 visa is the most important visa in international commerce. The B-1 visa is amorphous and has no "pre-cast" form and or set of multiple rules set forth in regulatory guidelines. It allows a creative approach to visa needs.

For example: an H-1B worker is wanted for an engineering problem which has just arisen in an Illinois factory. However it will take at least one to two months to get the foreign engineer authorization as an H or L to work in Illinois. If the engineer can be sent to to the Illinois factory to observe the problem and confer with colleagues while remaining on the foreign payroll and not actually working in the U.S., the engineer could be in Illinois in a few days. The Consul offficer who must be convinced that the engineer intends to return to his or her residence abroad, only intends to stay in the U. S. for a period of specifically limited duration, and does not intend to work in the United States.

The Foreign Affairs Manual of the U. S. Department of State provides that business people may be classifiable as B-1 visitors if they are traveling to the U. S. to: 1. engage in commercial transactions that do not involve gainful employment in the U. S. (such as a merchant who takes orders for goods manufactured abroad); 2. negotiate contracts; 3. consult with business associates (our engineer); 4. litigate; 5. participate in scientific, educational, professional or business conventions, conferences, or seminars; or 6. undertake independent research.

For example, taking sales orders or making purchases of inventory or supplies for a foreign Employer; negotiating contracts; consulting with business associates; engaging in litigation; or participating in scientific, educational, professional or business conventions or conferences are acceptable activities. B-1s and WBs cannot receive a salary or payment from any U.S. source other than reimbursement for expenses accrued.

By the statute, aliens coming to perform skilled or unskilled labor are specifically excluded. At the other extreme, members of the board of directors of a U. S. corporation are specifically approved if seeking to enter the U. S. to attend a meeting or to perform other functions resulting from membership on the board. The decision by a Consul is final-there is no appeal. Therefore, preparation must be thorough.

Visa Waiver Pilot Program

The VWPP, begun in 1988, permitted nationals from designated countries, who are not prohibited by U.S. law from entering the United States, to visit the United States for business or pleasure for up to 90 days without obtaining a nonimmigrant visitor visa. H.R. 3767, the Visa Waiver Permanent Program (Public Law No.106-396) was signed on 10/30/00. This law makes the Visa Waiver Pilot Program permanent.

With the removal of Argentina, the following 28 countries remain in the Visa Waiver Program: Andorra, 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.

Machine-readable passports (MRP) - Starting October 26, 2004, visa waiver travelers from ALL 27 Visa Waiver Program countries must present either a machine-readable passport or a U.S. visa. In the interest of facilitating travel, the Department of Homeland Security's Customs and Border Protection Bureau (CBP) has given officials at ports of entry the discretionary authority to grant one-time exemptions on a case-by-case basis to certain VWP travelers without a visa or MRP, who are nationals of twenty-two (22) of twenty-seven (27) VWP countries. Nationals of the following five (5) countries are already required to present an MRP for admission under the VWP, and therefore this one-time exemption procedure will not apply to VWP travelers from Andorra, Belgium, Brunei, Liechtenstein, and Slovenia.

A visa is not required of any person who seeks admission to the United States for a period of 90 days or less as a visitor for business or pleasure and who is eligible to apply for admission to the United States as a Visa Waiver Pilot Program applicant.

Countries designated as pilot program countries are:

The United Kingdom (effective July 1, 1988); Japan (effective December 15, 1988); France and Switzerland (effective July 1, 1989); The Federal Republic of Germany and Sweden (effective July 15, 1989); Italy and The Netherlands (effective July 29, 1989); Andorra, Austria, Belgium, Denmark, Finland, Iceland, Liechtenstein, Luxembourg, Monaco, New Zealand, Norway, San Marino, and Spain (effective October 1, 1991); Brunei (effective July 29, 1993); Ireland (effective April 1, 1995); Australia (effective July 29, 1996) and Slovenia (effective September 30, 1997.)

The INS has published an interim rule in the Federal Register terminating Argentina’s participation in the Visa Waiver Program, effective February 21, 2002.  Argentine nationals will now need to obtain a visa before traveling to the US. Argentine nationals who intend to travel to the United States for legitimate business or pleasure are now required to obtain a non-immigrant visa at a U.S. consulate or embassy prior to their arrival into the U.S.

Please note that WB and WT nonimmigrants are barred from extending their stay in the U.S. or changing their status to another nonimmigrant or immigrant classification (exception: immediate relative of U.S. citizen). Furthermore, they are only admitted for a maximum period of stay of 90 days. WB and WT nonimmigrants are issued a special Form I-94 that is on green card stock and sets for the terms of the nonimmigrant's stay.

E-1/E-2 Treaty Traders/Investors are aliens who enter the U.S. pursuant to the provisions of a treaty commerce and navigation or bilateral trade agreement between the U.S. and the foreign state of which the alien is a national. Under the Trader category, the employee is entering solely to carry on substantial trade in services or technology between the U.S. and the foreign state. Under the Investor category, the investor is entering solely to develop and direct the operations of an enterprise in which s/he has invested substantial capital. Employees of the investor (or the established company) may also work in the U.S. under certain circumstances

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Professionals under the North American Free Trade Agreement

How can a "TN" visa be obtained?

Who qualifies for a "TN" visa?

Certain professionals may work in the U.S. in "TN" status even though they have been employed as H-1B's for six years. Under section 214(e)(2), INA, only persons who are citizens of Canada or Mexico may seek to qualify to enter the U.S. in Trade NAFTA ("TN") professional status. Who qualifies for a "TN" visa? The category "Professionals Under the North American Free Trade Agreement" is available only to citizens of Mexico and Canada. Under the North American Free Trade Agreement (NAFTA) a citizen of a NAFTA country may work in a professional occupation in another NAFTA country provided that 1) the profession is on the NAFTA list, 2) the alien possesses the specific criteria for that profession, 3) the prospective position requires someone in that professional capacity and 4) the alien is going to work for a U.S. employer. The spouse and unmarried, minor children of the principal alien are entitled to the derivative status, but they are unable to accept employment in the United States. Aliens entering under this classification are considered non-immigrants

The requirements for Canadians and Mexicans wishing to enter under this classification are not the same.

Citizens of Canada must provide the following at the port of entry:

1. A request for "TN" status;

2. A copy of the applicant's college degree and employment records which establish qualification for the prospective job;

3. A letter from the alien's prospective U.S.-based employer offering him or her a job in the United States, which is included on the professional job series (NAFTA list); and

4. A fee of U.S. $50.00. Canadian citizens are not required to obtain a visa, but instead receive "TN" status with the Immigration and Naturalization Service (INS) at the port of entry. The "TN" status will only be granted if the period of stay is temporary.

The requirements for Mexican citizens are as follows:

1. First, the prospective employer must file a labor condition application;

2. Then, the applicant's prospective employer must file an I-129 "Petition For Non-Immigrant Workers" with the Immigration and Naturalization Service (INS); and

3. After the petition has been approved, the alien must apply for a non-immigrant visa at a U.S. Embassy or Consulate in Mexico.

TNTalent Inc. is an IT recruiting company based in Denver, Colorado. They bring top IT talent from all of North America to high tech companies in the United States. They recruit the best trained professionals from Mexico and Canada, taking advantage of the TN visa, which does not have any yearly quotas, and is given only to Mexican and Canadian professionals thanks to the North American Free Trade Agreement(NAFTA).Recruiting firm that brings the top IT professionals from Mexico to high-tech companies in the United States.

INS NAFTA Memo: In August 2000 the INS Western Region distributed a set of memos to the field regarding adjudication of TN status applications under NAFTA. (.pdf)

How can an application for extension of temporary stay be made?

Applications for extension of stay are processed by the Immigration and Naturalization Service (INS). Canadian citizens have two options. First , they may have their employer file an I-129 form at the closest regional INS office. This option does not require leaving the U.S. Second, Canadians may return to Canada to re-apply at the port of entry with the same documentation that is required for an original application. Mexican citizens must have their employers renew their labor certification and file another I-129 with their regional INS office in order to extend their stay.

How strict are the qualifications for computer science degrees for a TN visa?

Under the NAFTA agreement, Computer Systems Analysts are permitted to enter the United States in Trade NAFTA (TN) status as long as they have a Bachelor's degree in computer science or a related subject, or a post secondary diploma or post secondary certificate and three years of computer experience on a professional level.

Health care professionals from Canada or Mexico can enter the U.S. in "TN" or "Trade NAFTA" status: dentists, dietitians, medical technologists, nutritionists, occupational therapists, pharmacists, physicians (teaching and research only), physical therapists, psychologists, recreational therapists and (perhaps most importantly) registered nurses. TN status is comparatively easy to obtain and can be renewed indefinitely, which makes Canadian nurses, who ordinarily speak English as their first language, a particularly good option.

Change of Status/Pending Change of Status and Extension Applications

Who May Apply to Change to a New Nonimmigrant Status (.pdf file, click on lick)

Who May Apply for Extension of Stay (.pdf file, click on lick)

Requiring Change of Status From B to F-1 or M-1 Nonimmigrant (April 12, 2002)

This interim rule amends the Immigration and Naturalization Service
(Service) regulations by eliminating the current provision allowing a
B–1 or B– 2 nonimmigrant visitor for business or pleasure to begin
attending school without first obtaining approval of a change of
nonimmigrant status request from the Service.

The amendment will ensure that no B nonimmigrant is allowed to enroll in
school until the alien has applied for, and the Service has approved, a
change of nonimmigrant status to that of F–1 or M–1 nonimmigrant
student.(.pdf file, click on lick)

When a foreign national present in the United States in one nonimmigrant classification decides to engage in a different primary activity allowed in another nonimmigrant classification, the foreign national has two options. S/he can either leave the United States and apply for a new visa in the new classification at the Consulate abroad, or s/he can file for a Change of Status (see, form I- 539, Application to Extend/Change Nonimmigrant Status, $ 140 filing fee.) through the Immigration and Naturalization Service (INS). In order to be eligible to change status within the United States, the applicant must have been lawfully admitted to the US as a nonimmigrant, is continuing to maintain that status, and is not inadmissible for having been unlawfully present. A Change of Status must generally be filed before the applicant's authorized stay expires. The filing of an application for Change of Status does not extend one's current status, and one may not assume the new status until it is approved by INS. The applicant must also qualify for the new classification sought. There are statutory ineligibility provisions.

What are the penalties for overstaying the duration of the visitor's visa in the U.S.?

There are many variations and penalties depending upon the circumstances. If a person has a visitors visa and then overstays by 180 days and then leaves voluntarily there is a three year bar to coming back. If you overstay a whole year and then leave voluntarily there is a ten year bar. Persons who are out of status and wish to apply for permanent status cannot complete their cases without leaving unless a petition or labor certification was filed for them before January 14, 1998. (There are certain exceptions, such as persons applying for green card based on marriage to a U.S. citizen.) Apart from the consequences indicated above, there is also the possibility of being apprehended and being placed in removal proceedings or actually being removed from the United States involuntarily. So the penalties that apply do depend on the circumstances.

ALIENS UNLAWFULLY PRESENT (INA 212(a)(9)(B))

(i) IN GENERAL. Any alien (other than an alien lawfully admitted for permanent residence) WHO

(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section 244(e)) prior to the commencement of proceedings under section 235(b)(1) or section 240, and again seeks admission within 3 years of the date of such alien's departure or removal, or (II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien's departure or removal from the United States, is inadmissible.

(ii) CONSTRUCTION OF UNLAWFUL PRESENCE. For purposes of this paragraph, an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.

(iii) EXCEPTIONS. (I) MINORS. No period of time in which an alien is under 18 years of age shall be taken into account in determining the period of unlawful presence in the United States under clause (i). (II) ASYLEES No period of time in which an alien has a bona fide application for asylum pending under section 208 shall be taken into account in determining the period of unlawful presence in the United States under clause (i) unless the alien during such period was employed without authorization in the United States. (III) FAMILY UNITY. No period of time in which the alien is a beneficiary of family unity protection pursuant to section 301 of the Immigration Act of 1990 shall be taken into account in determining the period of unlawful presence in the United States under clause (i). (IV) BATTERED WOMEN AND CHILDREN.

(iv) TOLLING FOR GOOD CAUSE. In the case of an alien who (I) has been lawfully admitted or paroled into the United States, (II) has filed a nonfrivolous application for a change or extension of status before the date of expiration of the period of stay authorized by the Attorney General, and (III) has not been employed without authorization in the United States before or during the pendency of such application, the calculation of the period of time specified in clause (i)(I) shall be tolled during the pendency of such application, but not to exceed 120 days.

(v) WAIVER. The Attorney General has sole jurisdiction to waive clause (i) in the case of an immigrant who is the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien. No court shall have jurisdiction to review a decision or action by the Attorney General regarding a waiver under this clause. [Amended by sec. 301(b) of Pub. L. 104-208; Sept. 30, 1996.]

TOLLING FOR GOOD CAUSE: Period of stay authorized by the Attorney General after 120 day tolling period

On March 3, 2000 the Immigration and Naturalization Service issued two memorandums: the first concerns the period of stay authorized by the Attorney General with Respect to Pending Change of Status and Extension Applications after the 120-day tolling period for purposes of section 212(a)(9)(B)* of the Immigration and Nationality Act. The other one concerns Section 222(g) of the Immigration and Nationality Act (automatic voidance of nonimmigrant visas (and combination nonimmigrant visa/border crossing cards)). Click here to read the memorandums: TOLLING FOR GOOD CAUSE.

Under current Service policy, if a decision is not rendered with Respect to Pending Change of Status or Extension Applications within the tolling period aliens admitted to the United States until a specific date begin accruing unlawful presence on the 121th day after the expiration of their Form I-94.

Because of the current backlogs, which in some cases extend beyond six months, aliens who remain in the United States while the E/S (extension of stay) or C/S (change of status) is pending may incur a 3-year or even a 10-year bar to admission if the application is ultimately denied.

Therefore, in order to alIeviate problems aliens may encounter concerning "unlawful presence" through no fault of their own, the Service has determined that Nonimmigrants who were admitted until a specific date and who apply for E/S or C/S and whose applications have been pending beyond the 120 day tolling period should be considered to be in a period of stay authorized by the Attorney General, if certain requirements are met.

Because these requirements are the same as those for tolling under section 212(a)(9)(B)(iv) of the Act, the Service has further determined that the period of stay authorized by the Attorney General covers the E/S or C/S applications for the entire period that it is pending. As a practical matter, this policy applies only to those Nonimmigrants who were admitted until a specific date and whose I-94 has expired while the E/S or C/S application is pending. If the Service approves the E/S or C/S application, the nonimmigrant will be granted a new period of stay authorized by the Attorney General, retroactive to the date the previously authorized stay expired, as applicable to the nonimmigrant classification under which the alien was admitted pursuant to 8 CFR 214.2. No unlawful presence accrues.

Requirements for Period of Stay Authorized by the Attorney General with Respect to Pending Change of Status and Extension Applications:

(A) The application for change of status or for extension of stay was filed timely. To be considered timely, the application must have been filed before the previously authorized stay expired, as provided under 8 CFR 214.1 (c)(4) and 8 CFR 248.1 (b).

(B) The alien did not work without authorization before the application for change of status or extension of stay was filed or while it was pending; and

(C) The change of status or extension application has been pending with the Service for more than 120 days after the date the l-94 expired.

 

Immigration FAQ

 

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