B2 Visitor Visas :: Visa Lawyer Blog

Home > B2 Visitor Visas

April 5, 2012

B2 Tourist Visas - Update from the Non Immigrant Section in Shanghai: Can Pregnant Mothers Get Visas?

The Rome District Chapter of AILA (RDC) offered the following information from the NIV Chief in Shanghai, Mr. Mr. Richard Larsen. We specially wanted to update on the issue on non immigrant visas and in particular visitor visas for certain kind of applicants.

What is the status of B visa adjudications for pregnant mothers? B for dependent parents? Domestic Partners? What should be provided above and beyond a standard B visa applicant?

Mr. Larsen stated, The law does not prohibit pregnant mothers from applying for B visas or to have their babies in the U.S. The post reviews an application from a pregnant mother like other applications, looking for ties to China, financial resources, credibility, etc. If the post is
concerned that the applicant may incur substantial medical expenses in the U.S. and leave
the U.S. without paying the bills, the applicant would need to demonstrate that they have
the financial resources and commitment to pay for their medical expenses in the U.S.

For dependent parents, the post looks for the same basic elements: proof of their ties
outside the U.S. and what they intend to do in the U.S. if granted a visa. For applicants
visiting relatives in the U.S., officers may naturally inquire as to the immigration status of
their relatives to help understand the applicants’ ties and intent. The post rarely sees any domestic or same-sex partner application in Shanghai.

What about B-1 in lieu of H-1B? What should be provided above and beyond a standard B visa applicant? Does your post make annotations for B1 in lieu of H1B cases?

Applicants must clearly demonstrate that they qualify for this classification. The post is
concerned with applicants who use this category to circumvent U.S. labor law. This visa
is used rarely. Post does not advise applicants to rely on this type of visa except in rare
cases. For long term work requirements applicants should apply for an H or L visa.

So it seems that as long as an applicant can overcome section 214(b), the visas should be granted. Being pregnant in itself, should not be a reason for refusal according to the Consul.

INA Section 214(b), also found in the United States Code at 8 USC 1184(b), states:
"...every alien . . . shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status under section 101(a)(15)."

This simply means that before you can be approved for a nonimmigrant visa, you must prove that you will return to your home country. You must show that you have no intention of abandoning your residence there. The law places the burden of proof on you to prove that you have “strong ties” in your country that would compel you to leave the US at the end of your temporary stay and return home.

Thus, to avoid a 214 b visa denial, applicants must convince the Consular Officer of the following:
• that they intend to return to their home country after a temporary stay in the United States,
• that their financial situation is such that they can afford the trip without having to seek unauthorized employment in the U.S., and
• that the travel is for legitimate purposes permitted by the applicant's visa category.
From the above discussion, one thing is certain: having strong ties with your home country matters a lot when it comes to getting a nonimmigrant visa for United States.

Feel free to contact us with any questions.

Posted by Jacob Sapochnick | Permalink | Email This Post

Posted In: B2 Visitor Visas

February 27, 2012

Tourist Visa for Same Sex Couples - One Year Admissino for Unmarried Domestic Partners

Recently, Customs and Border Protection (CBP) provided guidance on the period of time for which a nonimmigrant alien domestic partner may be admitted to the United States in visitor status when presenting a valid B-2 visa. This guidance does not apply to a visitor applying for admission under the Visa Waiver Program, which limits admission to a period of 90 days.

The Department of State (DOS) Visitor Visa Policy is to authorize issuance of a B-2 visitor visa to the unmarried, cohabitating partner of a nonimmigrant alien coming temporarily to the U.S. for work or studies. The DOS amended the Foreign Affairs Manual (FAM) in 2001 to formalize this long-standing policy. This policy extends to virtually any alien who is a member of the household of another alien in long-term nonimmigrant status but is not eligible for a derivative visa as a spouse or a child. In addition, even if a spouse or a child qualifies for a derivative visa, such as an L-2, H-4, etc., they may instead apply for a B2 visa. The spouse or child does not need to demonstrate that it is impossible to apply for a derivative visa, as it is simply inconvenient to do so.

Within the CBP Inspector's Field Manual, there is a list of situations that support the use of a B-2 visitor category visa. One such item on the list is dependent domestic partners for whom the B-2 visitor category is appropriate. A nonimmigrant alien presenting a valid B-2 visa when applying for admission should be admitted for no less than six months, provided e or she is otherwise admissible and has a passport valid for the required period of time. A visitor accompanying another alien in long-term nonimmigrant status, however, may desire a longer period of admission. An alien presenting a valid B-2 visa may be admitted for up to one year.

The eligibility for visitor status requires an alien to be seeking admission to the U.S. for a temporary period of time. The length of the intended stay does not, per se, disqualify an individual for visitor status. The FAM explains that:

"The period of time projected for the B visa visit must be consistent with the stated purpose of the trip...The fact that the period of stay in a given case may exceed six months or a year is not in itself controlling, provided...that the intended stay actually has a time limitation an is not indefinite in nature...the temporariness requirement would be met in a case where the cohabitating partner will accompany, and depart with, the 'principal' alien on [for example], a two-year work assignment or a four-year degree program."

The DOS instructs its consular officers to advise nonimmigrant aliens issued a B-2 visa who are planning to stay in the United States for more than six months to ask for a one year stay upon applying for admission. Upon arriving at a port of entry, a B-2 visitor should specifically ask for a one year period of stay. Domestic partners and others who are not eligible for nonimmigrant dependent visas should be prepared to demonstrate their relationship to the principal alien. There is no definitive list of prescribed documents to conclusively prove eligibility for admission in B-2 status as a domestic partner or other regular member of a household, but examples of evidence of cohabitation which may be sufficient can include a joint bank account statement shared lease or mortgage obligations, common driver's license addresses insurance documents, and, if applicable a letter from the principal alien's employer verifying the temporary nature of the assignment.

Based on these guidelines, same sex partners from other countries can seek to stay in the U.S. under B-2 status for up to one year. This bodes well for couples who do not wish to have to be parted for any significant period of time. Until the Defense of Marriage Act is repealed, immigration reform regarding same sex couples cannot allow same sex couples to petition for their spouses. In the meantime, the B-2 visa can give same sex couples the opportunity to stay together for a year while in the U.S. These guidelines are good to keep in mind for when a domestic partner should come to the U.S. and seek the maximum length of stay under that status.

Posted by Jacob Sapochnick | Permalink | Email This Post

Posted In: B2 Visitor Visas

February 9, 2012

F1 and J1 Visas - New Nonimmigrant Visa Interview Waiver Pilot Program

Some good news to help speed up the process of getting a Student Visa. On January 19, 2012, President Obama announced an initiative to improve and speed up the visa process for certain categories of travelers. One of the cornerstones of this initiative is the Department of State's Nonimmigrant Visa Interview Waiver Pilot Program, under which certain foreign visitors who were interviewed in conjunction with a prior visa application may be able to renew their visas without undergoing another interview.

What are the prevailing interview and fingerprint requirements of the U.S. nonimmigrant visa (NIV) application process?

Generally, all Non Immigrant applicants must make a personal appearance and be interviewed by a consular officer. In addition, visa applicants must provide biometric identifiers for verifying their identity (the biometric identifiers currently required are fingerprints and a photo image).

What are the prevailing rules relating to waivers of in-person NIV interviews?

Generally, all applicants must be interviewed unless they meet one of the following criteria (list not inclusive):
1. The applicant is younger than 14 years of age and older than 79 years of age.
2. The applicant is applying for a diplomatic visa (generally "A" or "G").
3. The applicant is applying for a visa in the same classification as their prior nonimmigrant visa, not more than 12 months after the previous visa expired, at the post of their normal residence. (This is available only for applicants from whom a ten-print fingerprint scan was collected.)

What are the provisions of the new Pilot Program?

Under the new Pilot Program, consular officers are permitted to waive NIV interviews for certain visa applicants who are renewing their visas more than 12 months but less than 48 months of the expiration of the previous visa, and within the same classification as the previous visa.

Does the Pilot Program apply to all nonimmigrant visa classes?

No. The Pilot Program will not apply to applicants renewing certain excepted types of visas. The Department of State has not made this information available to the public at this time. That said, the Department has specified that student and exchange visitor visa (F, J, and M) applicants are eligible for the Pilot Program.

No waiver of the in-person interview requirement may be approved for any applicant who:

1. Was previously refused a visa
2. Is listed in the Consular Lookout and Support System ("CLASS")
3. Otherwise requires a Security Advisory Opinion (SAO)
4. May have failed to comply with U.S. immigration laws in the past
5. Is a national of a country designated as a state sponsor of terrorism.

Great news for J1 and F1 applicants dreading the slow interview process and more students for US colleges and Universities able to start school on time. To learn more about F1 visas, see the Video below and subscribe to our You Tube Channel for more Videos.