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B-1/B-2 visas are the most common nonimmigrant visas
used for temporary entry into the United States. B-1 visas are
typically used for business-related visits, while B-2 visas are used
for pleasure-related visits. With few exceptions, those who enter
the US must be in possession of a visa granted by a US consulate
abroad.
A visa merely permits one to
apply for entry at a US port of entry; it does not guarantee
entrance. Immigration officials at the ports of entry determine
whether a foreign national can enter the US on the visa, and will
set a definite period of time in which that person is authorized to
remain in the US (usually six months for those visiting for pleasure
and 30-60 days for business visitors).
The date by which one must depart
from the US is stamped on a document known as an “I-94 card”.
The time restriction applies even to foreign nationals who possess
multiple-entry visas. Under
the Immigration and Nationality Act (INA), visas are automatically
voided when the foreign national remains in the US beyond their I-94
departure date.
For non-immigrants who wish to
remain beyond the period of time authorized to them, extensions must
be filed within the time period authorized on the I-94 card with the
US Citizenship and Immigration Services (USCIS). However, foreign
nationals should be advised that the USCIS rarely grants requests to
extend a tourist visa without a very good reason. Because the time
required to adjudicate an extension requests can take three months
or more, applicants often do not receive a decision prior to the
date on which they are required to depart.
Serious immigration consequences
arise when applicants file for extensions after their I-94 departure
date, as well as when applicants timely apply for extensions, but
remain beyond their I-94 departure date.
If the extension request is denied, the applicant is
immediately determined to be out of status and the B and or B-2 visa
is automatically cancelled under INA Section 222(g).
Even if the applicant departs
from the US immediately upon receipt of the extension denial, he or
she has already been out of status and this cancels their visa and
may prevent future entries into the US.
If such an applicant attempts to
return to the US in the future with the same B-1 or B-2 visa, due to
their prior period of unauthorized stay (even one day), the
applicant will likely be refused entry unless they can present
evidence of extenuating circumstances that prevented an earlier
departure during their last trip to the US.
In addition, many US consulates
will refuse to grant future visas on the ground that the foreign
national overstayed their last visit to the US.
Most importantly, if an extension
request is denied and the applicant remains in the US beyond the
denial date, unlawful presence will begin to accrue. Accrual of more
than 180 days of unlawful presence will preclude the foreign
national from reentering the US for three years. One year or more of
unlawful presence will bar reentry for ten years.
The law does afford a 120-day
grace period regarding the accrual of unlawful presence where an
applicant timely filed an extension request. Unlawful presence will
not begin to accrue until the extension request is denied, or until
it has been pending for 121 days, whichever occurs first.
This, however, should not be
confused with failure to maintain nonimmigrant status, i.e., staying
beyond the authorized period of stay stamped on the I-94 which will
result in automatic cancellation of a multiple entry visa.
Because most extension requests
for tourist visas will be denied, one should not apply unless a very
good reason exists. Examples of qualifying reasons for extensions
are family or personal emergencies, urgent medical reasons,
unexpected business opportunities, seminars or conferences.
Extension requests should always
include evidence to show that the applicant has sufficient funds to
sustain himself or herself while in the US. Extension requests based
on medical reasons must include proof of a medical condition,
including current treatment, the proposed length of the treatment,
and how the treatment will be paid for.
If an applicant does not have a
good reason for an extension, the request will almost certainly be
denied. Timely
departure will ensure that their B visa remains valid for future
use.
Author’s Note:
The analysis and suggestions offered in this column do not
create a lawyer-client relationship and are not a substitute for the
individual legal research and personalized representation that is
essential to every case.
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