Tag Archives: visitor

B-Visa Status — Special Circumstances

Under internal guidance and in cooperation with visa policy of the U.S. State Department, USCIS is to uniformly and consistently process Form I-539 for changes to and extensions of B-2 status for cohabitating non-immigrant partners and other household members of principal non-immigrants.

In some circumstances, elderly parents, cohabitating non-immigrant partners, and other household members of principal non-immigrants may be ineligible for derivative status. For purposes of this memorandum, a “household member” of a principal non-immigrant is an alien who regularly resides in the same dwelling as the principal non-immigrant and with whom the principal non-immigrant maintains the type of relationship and care as one normally would expect between nuclear family members.

There are also circumstances when it may be inconvenient or impossible for spouses or children of principal non-immigrant aliens to apply for the proper derivative status. These aliens may seek B-2 visas, or change their status to B-2, to allow them to reside with the principal non-immigrant visa holder who is in the United States in another status (H-1B, F-1, etc.). Department of State guidance provides for issuance of B-2 visas to these household members.

Consular officers are to annotate the B-2 visa with the principal nonimmigrant’s visa type and duration, and to advise the B-2 visa holder to seek admission for one year at the point of entry if the B-2 visa holder plans to stay in the United States more than 6 months. Applicants may also seek extensions in six month increments from USCIS for the duration of the principal alien’s non-immigrant status.

When evaluating an application for change to or extension of B-2 status based on cohabitation, the cohabitating partner’s relationship to the non-immigrant principal alien in another status will be considered a favorable factor in allowing the household member to obtain or remain eligible for B-2 classification.

When considering a change of status and/or multiple extensions for the cohabitating partner or other household member, the finite nature of the stay, rather than the duration of the stay or number of extensions sought, is controlling with respect to nonimmigrant intent. For example, the visit should be considered temporary even if the status may be extended several times over several years in order to match an extended course of study undertaken by the principal alien. However, while the I-539 (B-2) application must be adjudicated on its own merits, a finding that the principal non-immigrant lacks non-immigrant intent is a negative factor in the exercise of USCIS’ discretion.

Historic Visa Agreement between U.S. and Russia

The Department of State announced that a “historic” U.S.-Russia visa agreement entered into force on September 9, 2012. The agreement facilitates travel between the two countries and “enables us to strengthen ties between our people by benefiting the largest segments of travelers in both our countries – business travelers and tourists,” the Department said in a statement. Among other benefits, the agreement provides for longer visa validity.

Nearly 159,000 business and tourism visas were issued in fiscal year 2011 to Russian citizens. Over 75,000 U.S. citizens travel to Russia annually, the majority of whom require Russian visas.  The agreement includes these key provisions:

  • Three-year, multiple-entry visas will be issued as the standard “default” visa for U.S. citizens visiting Russia and Russian citizens visiting the United States;
  • Diplomatic and official visa holders on temporary assignments will receive one-year, multiple-entry visas;
  • The documentation required will be reduced. For example, the Russian government will no longer require U.S. citizens to provide formal, “registered” invitation letters when applying for Russian business visas or visas for private visits, although applicants seeking Russian tourist visas must continue to hold advance lodging reservations and arrangements with a tour operator;
  • Both sides have committed to keeping standard visa processing times under 15 days, although the circumstances of individual cases may require additional processing; and
  • The $100 issuance (reciprocity) fee for Russians issued U.S. visas for business or tourism (B-1/B-2) will decrease to $20.

B-2 Issues for Household Members and other Non-Derivatives.

USCIS recently published changes in its Adjudicator’s Field Manual, regarding B-2 Status and Extensions of B-2 Status for Cohabitating Partners and Other Nonimmigrant Household Members, to enhance the processing and consistency of adjudications, and to better mirror current U.S. State Dept. visa policy regarding certain non-derivative beneficiaries.

The background for the new changes in adjudication policy is as follows: in some circumstances, elderly parents, co-habitating non-immigrant partners, and other household members of principal non-immigrants may be ineligible for derivative status. For purposes of this memorandum, a “household member” of a principal non-immigrant is an alien who regularly resides in the same dwelling as the principal non-immigrant and with whom the principal non-immigrant maintains the type of relationship and care as one normally would expect between nuclear family members.

There are also circumstances when it may be inconvenient or impossible for spouses or children of principal non-immigrant aliens to apply for the proper derivative status. These aliens may seek B-2 visas, or change their status to B-2, to allow them to reside with the principal non-immigrant visa holder who is in the United States in another status (H-1B, F-1, etc.).

The U.S. State Department, which oversees U.S. Visa policy, already has guidance on these issues, in their Foreign Affairs Manual. Consular officers are directed to annotate the B-visa with the principal non-immigrant’s visa type and duration, and to advise the B-2 visa holder to seek admission for one year at the point of entry, if the B-2 visa holder plans to stay in the United States more than 6 months.

(generally, applicants may also seek subsequent extensions in six-month increments from USCIS for the duration of the principal alien’s non-immigrant status, by filing Form I-539.)

When evaluating an application for B-2 status (or extension) based on co-habitation, the co-habitating partner’s relationship to the non-immigrant principal alien in another status will be considered a favorable factor in allowing the household member to obtain or remain eligible for B-2 classification.

When considering a change of status and/or multiple extensions for the co-habitating partner or other household member, the finite nature of the stay, rather than the duration of the stay or number of extensions sought, is controlling with respect to non-immigrant intent. For example, the visit should be considered temporary even if the status may be extended several times over several years in order to match an extended course of study undertaken by the principal alien.

U.S. and Russia Strike Agreement to Ease Visa Policies

Secretary of State Hillary Rodham Clinton and Russian Foreign Minister Sergey Lavrov recently announced an agreement on the issuance of non-immigrant business, tourist, private and humanitarian visas to the Russian Federation, and for business and tourist visas to the United States, as well as short-term official travel visas to both counties.

This agreement will facilitate travel between our two countries and establish stronger ties between our people. The agreement benefits the largest segments of our traveling Americans and Russians – business travelers and tourists, traveling both as individuals and in groups, by granting as a rule, on a reciprocal basis, multiple-entry visas valid for 36 months.

The agreement also streamlines the visa issuance process by reducing the documentation required. These new visa validity periods will allow for expanded contacts and promote greater mutual understanding [...].  This agreement will go into effect after an exchange of diplomatic notes in Moscow.

Flight Training Programs under J-1 to be discontinued…

Currently, approximately 350 foreign nationals enter the United States annually for the purpose of flight training under the terms of the Exchange Visitor Program and its J-1 visa.

Designated flight schools are also certified by the Department of Homeland Security (DHS) to issue the Form I-20, which is needed to obtain an M-visa. DHS is also responsible for the security-related screening of all alien flight training candidates.

In January 2006, the State Department stopped designating any new J-1 visa flight training program sponsors; nor would it allow currently-designated flight training programs to expand their programs, pending a determination as to which Federal agency ultimately would assume sole responsibility for administering and monitoring these programs.

In December 2007, the State Department determined that all flight training programs no longer further the public diplomacy mission of the Department, and accordingly, effective June 1, 2010, the Department would terminate the Exchange Visitor Program sponsor designations of all eight sponsors of flight training programs. The Department’s decision to eliminate flight training from the Exchange Visitor Program is based on thorough consideration and deliberation.

In an attempt to justify this move, the State Department explained in its January 2006 Statement of Policy, that it does not have the expertise and resources to monitor fully flight training programs and ensure their compliance with the national security concerns underlying the Patriot Act.

Further, the Aviation and Transportation Security Act of 2001, assigns and provides for wide discretion to request a wide variety of information from alien flight candidates in order to determine whether such flight candidates present a threat to aviation or national security, assigning full responsibility for the screening of alien flight training candidates to DHS.

Finally, all Department designated flight training sponsors are certified by the Department of Homeland Security to issue the Form I-20 and thereby permit foreign nationals to participate in flight training programs under the M-visa.

The flight training sponsors will continue to have obligations to their exchange visitors:

  • they must fulfill their responsibilities to all exchange visitors who are in the United States at the time of their program termination until the individual’s exchange program is completed.
  • sponsors must notify prospective exchange visitors who have not yet entered the United States that the program has been terminated. Such sponsors will have access to SEVIS to manage their existing program participants, but will not be able to initiate new programs after December 31, 2009.
  • B-1 “Business” Visitor …what is one allowed to do in the U.S.?

    Lately, I have had an increased number of inquiries on this very issue.So I figured, now is as good astime as ever to briefly re-visit thisissue for the benefit of my readership. Certain kinds of “business”related travel, is permitted using a B-1 visitor visa. The definition of”business” under immigration law islimited, and does not generally allow for gainful employment, labor for hire or productive activity such asoperating a business or consultancy work.

    Specifically, in the applicable U.S. law the term “business” is limited to (a) the negotiation of contracts,(b) consultation with businessassociates, (c) litigation, and (d) participationin scientific, educational, professional or business conventions,conferences or seminars and otherlegitimate activities of a commercialor professional nature.

    Persons entering the U.S. on avisitor visa, for business or tourism (B-1/B-2), or without a visa on the Visa Waiver Program are not permittedto work, i.e. being “gainfully employed” in the United States. If you are planning to work, or to attend certain training in the U.S., you cannot enter the U.S. with a visitor visa. Instead, you will need a visa in one of the employment categoriesfor temporary workers.

    The following are some further examples of legitimate B-1 activities: (1) Attending a scientific, educational,professional or business convention, conference or seminar, (2) Giving a lecture, (3) Doing independent research at a scientific or educationalinstitution, (4) Participating in a voluntary service program, (5) Participating in a sporting event.

    People who have B-1 visas may not, in general, receive salaries or compensation from U.S. sources. You may be able to come to the U.S. on B-1 status whereby you continue to receive your compensation back home, and may only receive expense reimbursements in the U.S., but no direct financial gain.

    If a business traveler, or a company for that matter, is in any doubt as to their anticipated or proposed conduct in the United States, DO seek the advice and counsel of a qualified immigration lawyer, BEFORE the business traveler boardsthat mission-critical flight US-bound.