The B-1/B-2 visa.

Every year, millions of people from around the globe declare their intention to travel to the United States for business (B-1) or tourism (B-2), which frequently and willingly coincides with the desire to visit family members living in the United States. In practice, visitors often get visas with both B-1 and B-2 designations so they can do business and travel at the same time.

Contrary to popular belief, the American state has always been inclined to allow entry not only to those who wanted to enjoy the American landscapes, but also to those who wanted to engage in economic activities with American subjects.

Even though there have been tensions, the dreaded American obstructionism has given way to a vision that is decidedly inclusive. The fear that, by issuing an entry visa, the United States could provide a valid means for an entity to enter the United States in order to engage in illegal activities or to legally enter the United States with the dual purpose of remaining beyond the expiration date, i.e., without authorization, is the primary cause of the reluctance. For these obvious reasons, American consulates in various countries around the world have begun denying a significant number of B-1/B-2 tourist visas, primarily to applicants who have proven to be wholly unprepared for the strict release procedure. In 2019, the percentage of denials was different from country to country. The highest percentage was in Nigeria (67%) and the lowest was in Indonesia (12%).

This article will focus on the aforementioned visa and attempt to provide a comprehensive description of it, paying particular attention to who is eligible to apply for it and how to increase one's chances of obtaining it. If, according to statistics, American consulates are accustomed to approving and issuing B-1/B-2 visas in a relatively short amount of time, it is important to note that, for reasons strictly related to national security, this decision is frequently delayed by several weeks or months. Knowing how this visa works helps the person who wants it to make as few mistakes as possible, which could delay its release even more.

To get to the heart of the issue, the hugely important question is whether or not it is required to submit an application with the authority of an attorney. Although, as with any visa application, it is not required to consult a lawyer, years of experience have led to the conclusion that it is highly recommended and increases the success rate significantly. Even though applying for a B-1/B-2 visa may appear to be a straightforward process, only an attorney is aware of the real requirements that will give the client the best chance of success, how they should be presented to the Consulate, and most importantly, the risks associated with being denied a visa.

Each visa has its own format, and submitting a request in a format that fits the purpose and is well-organized and clear, as required by USCIS, is a great business card that greatly increases the chances of success.

However, there is a further factor that must not be overlooked.

There are instances, which are actually quite common, in which a visa has been denied. This is a common occurrence, and the reasons are diverse: not only for lack of legal requirements or for overstay, which is defined as a stay in the United States that extends beyond the visa's expiration date, but also because the applicant is from a country subject to a travel ban. Relying on a professional is strongly advised in each of these situations.

The first advantage of obtaining a B-1/B-2 visa is its straightforward application process.

In addition to the preceding assumption, visitors with a B-1/B-2 visa will always be able to enter the United States whenever they deem it necessary. It is essential to remember that the total length of stay will never exceed six months per year. After this time, the person receiving the benefit will have to leave the country or, if possible, make plans to ask for more time.

However, here is the flip side.

The inability to accept any job offer in the United States and, consequently, receive a salary, as well as the prohibition on running a business, are disadvantages.

The B-1 visa is granted to anyone who declares that he or she wishes to travel to the United States for a temporary work trip, whereas the B-2 visa requires that a person-always temporarily-express his or her intention to travel for tourism or medical treatment. In any case, it will be necessary to demonstrate-first to the American Consulate issuing the visa and then to the border authorities-the intent to return to the country of origin once the purpose of the trip has been fulfilled. As proof of the applicant's good faith, documents that show not only the existence of an employment relationship but also that the applicant lives in the country of origin may be accepted.

To state that the applicant is willing to travel to the United States for temporary work seems to contradict what has been stated about the applicant's inability to accept any job. So, how should one proceed so as to avoid making errors in this regard? Work is never permitted. There are, however, activities that can be conducted regularly without violating the law: it is permissible to invest money, purchase goods, attend seminars, and perform temporary work activities for an employer outside of the United States of America. Because of this, it is illegal in the United States to have a job, run a business, and, most importantly, get paid.

It can be hard to tell the difference between legal business activities that are allowed with a B-1 visa and illegal work.

With a B-2 tourist visa, the applicant can't do any kind of business because they can only travel for pleasure or to get medical care.

In addition, there is an exception for the latter type of visa: the Visa Waiver Program, which allows the applicant to bypass the application for a formal tourist visa. The opportunity is granted to anyone who intends to visit the United States for tourism, provided that the applicant: A) is willing to leave the country before the start of the 90-day period permitted by law; B) has never had a visa denied or violated the conditions; and C) is from a country from which there has never been any irregular immigration to the United States. Foreign media representatives are unable to utilize the above exception, the visa waiver, because their trip is not business-related. As media, they will be required to obtain a non-immigrant visa.

Any individual entering VWP must possess a return ticket to demonstrate their intent to leave the country after 90 days. It is highly recommended to plan the departure a few days in advance of the visa's actual expiration date, as there have been cases in which the visa's expiration date has been extended beyond 90 days due to airline delays.

A return ticket and an electronic passport (MPR) or a passport with an embedded electronic chip that is valid for at least six months from the date of entry are also required.

VWP entry through Canada and Mexico is permitted by land; in this case, to be considered a visitor, it will be necessary to demonstrate to the border authorities that the applicant has sufficient funds to remain in the United States without working.

A waiver is permitted for nationals of Canada and Bermuda who do not require a B-visa1/B-2 to enter the United States but must present a passport when declaring their intent to enter as a visitor for business or tourism. In this instance, the entry will not be under the VWP but rather under visa exempt (visa-free).

Before entering the United States, VWP travelers must obtain the corresponding authorization through the Electronic System for Travel Authorization (ESTA). Regarding the request, please pay close attention by always referring to the official website (https://esta.cbp.dhs.gov/esta): there are, in fact, many fake sites that request less affordable amounts (instead of the standard $14) and which frequently result in the denial of ESTA.

Personal information, passport details, and general travel arrangements must be provided upon request, as well as answers to a number of crucial security questions.

In most instances, the system provides an instantaneous response, but in some instances, it may take up to 72 hours. Therefore, it is recommended to submit the request well before the scheduled departure. Before boarding, the airline will verify that the authorization is present, including for infants traveling without their own ticket. In the event that the ESTA is denied, the applicant will not be permitted to use the VWP and will be required to submit a standard visa application. Entering the United States under the Visa Waiver Program prohibits not only the extension of stay and the change of status procedure-that is, the conversion of the ESTA into another non-immigrant visa-but also the filing of a green card application without first departing the country.

VWP participation is voluntary and not required. It is self-evident that obtaining a visa to enter the United States confers greater freedom and rights.

Concerning the B-1/B-2 visa issuance procedure, the essential steps depend on the Embassy or Consulate to which the application is submitted. Generally, it will be necessary to prepare and submit the application, collect the case documentation, pay the applicable fees, and attend the appointment with the consular or embassy official. If the applicant is illiterate or can't fill out the application (DS-160), a third party can help, as long as the third party's name is written on the "sign and send" page.

The B-1/B-2 visa application submitted by a pregnant woman who intends to enter the United States close to her due date and who is not visa-exempt is especially complicated. To stop "birth tourism," which is traveling to the U.S. just to give birth, and to make sure I was born an American citizen, I will have to follow the State Department's new, strict rules that will go into effect in 2020.

Women who come to the U.S. with a visa or through the Visa Waiver Program are not affected by this rule.

In the event that the woman gives birth during her stay in the United States, the presumption that she traveled with the intention of granting American citizenship to the unborn child will apply. Therefore, it must present convincing evidence to overcome this presumption (e.g., another valid reason to travel to the United States). If medical treatment is the reason for applying for a B visa, it is still possible to travel to the United States (in the case of a very complicated pregnancy) by showing that no attempt is being made to get US citizenship for the unborn child, that a US doctor has agreed to provide the necessary care, and that enough money is available to support the applicant.

Given these hints regarding the issue underlying the visa application for a pregnant woman, and returning to the standard situations and required documentation, the Consulate invites the applicant to bring the supporting documentation to the appointment to demonstrate that the legal requirements for issuing the visa have been met. By way of illustration but not by way of limitation, please note: a) the documentation that can unequivocally reveal the purpose of the trip (hotel in which the person will stay or itinerary of the trip); b) one that can ensure that the applicant will leave the United States and return to his or her country of origin with a genuine interest (relationships with close family members, existing employment contract, or a mortgage or rent contract); and c) the documentation demonstrating the financial ability to support oneself during the (letter from a friend showing hospitality at his property, bank statement, evidence of his income).

In the case of business travel, the request must be accompanied by a letter from the foreign employer detailing the tasks to be performed, the source of payment (which must not be located in the United States), and the anticipated date of completion of business operations and return of the visa applicant. Promotional materials, flyers, and other registration forms may be included if you want to take part in trade fairs or corporate events.

When traveling for medical treatment, a letter from the treating doctor must include the diagnosis and the reason why it is necessary to come to the U.S. for therapy, as well as a statement from the facility or doctor who will give the treatment, how long it will last, and how much it will cost.

The B-1 visa does not require an affidavit of support or an invitation letter, unlike the B-2 visa. Instead, the consular officer will only look at documents that show the applicant lives in their home country and has stable family and/or work relationships there.

Even though the two types of visas are very different, they are often given at the same time so that the person can enter as a tourist for the next ten years and avoid any problems.

Therefore, once the beneficiary enters the United States by air or sea, a record of entries and exits, the I-94 card, will be generated. For land entry, the I-94 will be given directly to the person and will have both the date of entry and the date of departure.

With a B-1/B-2 visa, the person is permitted to stay for a maximum of six months per year until the visa expires, which can be 5 or 10 years. Also, whenever the person leaves and comes back to the U.S., the system will automatically update Form I-94 with the new length of time they are allowed to stay.

Finally, on extremely rare occasions, the USCIS may grant an extension of stay to a subject who demonstrates unequivocally that he does not intend to stay in the United States indefinitely and that his stay will not exceed one year. The most time that can be added is six months, even though it's obvious that asking for the full six months could make people question the applicant's true intentions.

The USCIS will make a decision on the application 45 days before the six-month period ends. If there is a delay, the applicant may be allowed to stay in the country longer than the six months for which an extension was requested.

It is quite common for USCIS to take a considerable amount of time to make a decision regarding a visa extension, but the rule is that the applicant must plan to leave the United States by the required extension date if has not received the official decision by then.

On the other hand, if the applicant is legally in the United States while the application is being processed, the extension will be "granted" when the person returns to his or her home country, even if the application is denied after the person leaves.

In the event that the applicant's application is processed by a USCIS service center that is able to process requests in less than six months, the applicant will receive a notice of action containing the approval with the new date. If the request for an extension is turned down, the subject will get a letter at the US address they gave in advance explaining why the request was turned down.

The most common reason is that USCIS believes the individual is attempting to remain in the United States indefinitely. Typically, an additional 30 days are granted in this scenario to allow the subject to voluntarily depart the United States. If they are not removed spontaneously by the indicated date, expulsion and expulsion proceedings will be initiated. If, at the time they received the refusal, they had already left the United States, there is no question.

Abogado Sarah Silvestri
Immigration Attorney

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