Blog

It’s summertime and that means tens of thousands of people from all over the world are flying into the United States for vacation. Whether it be Disneyland in Southern California, the Statue of Liberty in New York, or the beaches of Miami, make no mistake – it’s tourist season. Most of us take for granted that visiting the United States is easy. Simply apply for a tourist (B) visa and you’re set! That is not always the case.

Section 214(b) of the INA states that: 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 admission, that he is entitled to a nonimmigrant status…” What this means is that the United States presumes that everybody entering the country is, by default, assumed to be coming for the purpose of immigrating here permanently. The burden is on the foreign citizen to demonstrate that he/she is only coming here for a short period of time and is thus entitled to a non-immigrant, visitor visa.

The burden is easier if you are some from countries than from others. For example, Canadian citizens usually get visitor visas much easier than citizens of India, Russia or China. Why is that? In most cases, the United States simply does not believe that citizens from these countries will return to their home country if granted a visitor visa to the United States. In fact, there are numerous instances in which citizens from countries such as China, Russia or India (just to name a few) obtain visitor visas to the United States, enter the country, and never return.

So what does a foreign citizen have to do to get a visitor visa to the United States? Procedurally, it is rather straightforward. Applicants must complete Form DS-160 online, make an appointment with the US embassy in their home country, bring appropriate documents, and be interviewed by an officer. However, in some countries the ability to meet the 214(b) test is some difficult that almost all applications are outright rejected because the officer does not believe that the individual will return home.

How do you prove that you will return to your home country? Unfortunately, there is no clearcut answer and the decision generally lies in the discretion of the interviewing officer. The general test is to show the officer that you have strong ties to your home country and that you have no reason to remain in the United States beyond the duration of your visit. So how do you show “strong ties”? There are several factors. Family is important. If you have a spouse, children, parents or siblings in your hometown, that would certainly help in showing that you will return to your home country. Other ties include employment, ownership of property or bank accounts. It also helps to provide a copy of the purchased round trip airfare. In short, the more you can show your ties to your home country, the better the chance of getting a visitor visa. It will also help the foreign citizen if the person(s) you are visiting in the United States provides a letter in support of your application. The letter should generally include a statement that the U.S. host has invited the foreign citizen to visit him/her, that the visit is for a fixed duration, and that the host is providing accommodations and expenses during the foreign citizen’s stay.

There is no magical formula to meeting the Section 214(b) burden. The more information you can provide, the better your chances. However, in some cases, denial may be likely no matter how much documentation you provide. Officers in countries such as India simply do not believe that these citizens will return upon the conclusion of their visa. While you are entitled to re-apply, chances are that an initial denial is not going to change upon re-application. In these cases, I would recommend that citizens of these countries find other ways to come to the United States. Such options may include studying in the U.S. (F visa), working in the U.S. (H-1B visa) or investing in the U.S. (EB-5 green card or E-2 visa).

Foreign nationals with relatives who are U.S. citizens may be able to obtain a green card if certain and specific relationships exist. Different categories of relatives dictate whether, and how soon, you can get a green card.

Immediate relatives

One category is known as “immediate relatives,” which includes:

1) spouses of U.S. citizens;
2) parents of U.S. citizens who are over 21; and
3) children of U.S. citizens who are under 21.
Any foreign national who falls under one of these categories are immediately eligible for a green card without having to wait for a visa to become available. Assuming that the application process goes smoothly, a foreign national can anticipate receiving a green card within one year of filing the application.

Family preference categories

If you do not fall into one of the “immediate relative” categories, do not despair. There are other categories known as “family preference categories” which may still allow a relative to petition for a green card on your behalf. These relationships include:

1) unmarried sons or daughters (over 21) of U.S. citizens;
2) married children of U.S. citizens who are of any age;
3) brothers and sisters of U.S. citizens who are over 21; and
4) spouses or children of U.S. green card holders.

Unfortunately, foreign nationals seeking a green card under a family preference category will have to wait several years before a visa becomes available. If you are looking to obtain a green card through this route, you may want to explore other options – including marriage to a U.S. citizen, investing in an EB-5 green card, or obtaining a green card through employment.

Generally, a citizen of a foreign country who wishes to enter the United States must first obtain an appropriate visa. The most common visa for visitors is the B visa. This applies to people entering the United States temporarily for business (B-1), or for pleasure or medical treatment (B-2).

B-1: What does “business” mean? In lay terms, it basically means coming to the U.S. to engage in business. Examples including traveling to the U.S. to consult with business associates; to attend a scientific, educational, professional or business convention; to settle an estate; or to negotiate a contract. The best way to think about it is that you can come to the U.S. to conduct business, but you should not be employed by a U.S. employer, or take a wage/salary while you are down here. If you do, then a B-1 may not apply, and you should consider something else like an L, O, TN, or H visa. Professional athletes coming to the U.S. to compete for prize money can enter on a B-1 visa. While you are receiving compensation, it is not really a salary or employment that would require another type of visa. You may be required to pay U.S. taxes on any prize money you win.

B-2: If you are coming to the U.S. for vacation or to visit family and friends for a short period of time, then a B-2 visa is for you. These visas are generally valid for up to six months at a time. If you plan to stay longer, be sure to apply for an extension of status (or leave and re-enter). There are other unique situations in which you may enter on a B-2. For example, you may come to the U.S. on a B-2 visa if you are seeking medical treatment. To do so, be sure to bring appropriate documentation, including a copy of your diagnosis, a letter from the medical establishment in the U.S. which has agreed to treat you, as well as documents indicating that you can support yourself financially while in the U.S.

While these visas may appear straightforward on its face, several things must be considered before coming to the United States under a B visa, particularly if your intent is something other than just a temporary visit. For example, if you are engaged to a U.S. citizen and are planning to come to get married, a B-2 visa is not for you. You need to obtain a K visa (to be discussed in the near future). However, if you enter on a B visa, meet someone and get engaged, then you may change to a K visa. If you are a prospective student traveling to the U.S. looking to apply for a school, you may do so on a B visa. Once you enroll in a school, you can change your status to an F visa (to be discussed in the near future). However, you NEED TO SPECIFY THIS with the customs agent that you are entering the U.S. as a prospective student when applying for a B visa. Otherwise, you will likely have difficulty changing your status to an F visa later on. Few people know this, and prospective students often find themselves having trouble enrolling in a U.S. school after they choose one and try to enroll.

On balance, the B visa is rather straightforward. However, its simplicity masks plenty of subtle complications that may seem innocuous at first blush. Most of these complications stem from the foreign national’s intent when he/she first arrives in the country on a B visa. Please feel free to contact me directly if you have any questions about the B visa.

There are over 10,000 SEVIS-approved schools in the United States, and over 700,000 active students from outside of the United States. Most of these students are either on an F-1 or M-1 visa. While these visas are rather simple to get, there are a few things you should consider. If you are coming to the U.S. to look for a school, but have not yet enrolled, you will be admitted on a B-2 (tourist) visa. It is CRUCIAL that you state your intention to the customs officer that you intend to look for a school to enroll in when entering the U.S. Once you are admitted to a school, you will have to change your status by filing a form I-539, to go from a B-2 visa to an F-1 or M-1 visa. If you didn’t express your intent to look for a school while on a B-2 visa, you may be denied an F-1 visa. Moreover, you cannot enroll in classes before you are issued an F-1 visa. Otherwise, you will be in violation of your visa status and would be required to leave the United States.

Whether enrolling in college, university, post-graduate school or any other educational institute, Maximilian Law Inc. will prepare your student visa application, as well as your Optional Practical Training (OPT)/Curricular Practical Training (CPT) application. Maximilian Law Inc. will also assist those who are already in the U.S. on another visa (such as a B-2 or J-1) change their status to an F-1 or M-1 visa. We also assist presently enrolled international students on F-1 visas with adjustment of status to work visas or green cards.