In this climate of changing immigration policy, extra precautions should be taken by foreign nationals seeking visitor status to enter the United States. U.S. employers and families should also understand the limitations on visitors before inviting foreign-national colleagues or relatives to the U.S. Visitor status is accorded to foreign nationals who either: 1) successfully obtain a B-1 (visitor for business) or B-2 (visitor for pleasure) visa at a U.S. consulate abroad; or 2) are eligible for a waiver of the visa requirement through the ESTA program for nationals of certain countries recognized by the U.S. as having low rates of visa overstay.
B visas are generally issued for multiple years, allowing the holder to make multiple entries into the U.S. during the visa validity period. At the airport or land port of entry, a U.S. inspector questions the visitor and makes a determination of length of stay in the U.S. The length of stay is recorded on an electronic I-94 record and can vary in length from a few days to a maximum of six months.
Under the ESTA Visa Waiver Program, the U.S. has agreements with multiple countries that allow foreign visitors to enter the U.S. for up to 90 days. ESTA visa waiver visitors are also inspected upon entry at U.S. airports and land borders. Unlike traditional visa holders, ESTA visa waiver visitors may not extend their stay in the U.S. beyond 90 days per visit.
Both ESTA-eligible and B-visa-holding visitors must show: 1) an unabandoned foreign residence to which they intend to return; 2) an intent to enter the U.S. for a specifically limited period of time; and 3) that their sole purpose in the U.S. will be to visit.
As a general rule, visitors should adhere to the following tips to facilitate entry to the United States:
- Have a round trip ticket, with the return trip booked for a date no more than six months in the future;
- Confirm, if asked, that the particular project or visit with friends and family will be completed before the return date on the plane ticket (i.e. within six months at the longest);
- Confirm no intention to remain in the U.S. or to apply for a work visa (H, L, or immigrant visa/“green card”);
B visa holders (but not ESTA visa waiver visitors) should bear in mind that intentions may reasonably change after admission, and that status can be extended by petition to the USCIS. So, for example, it is perfectly legitimate to state at entry a desire to enter the U.S. for a three-month period of time, but once admitted, petition the USCIS for an extension of stay for an additional six months.
Business visitors are permitted to perform limited business purposes, including taking orders for goods manufactured abroad, negotiating contracts, consulting with associates, litigation, and participation in conferences or research projects. Examples of other specific fact patterns that fit the business visitor category include servants of U.S. citizens, professional athletes, missionaries and volunteers of international service organizations, investors, and board members.
On the employer’s side, there is no I-9 requirement, as a business visitor is not “working” in the United States.
In addition to the general tips mentioned previously, business visitors should also adhere to the following:
- Demonstrate that the employer is a non-U.S. employer and the particular project requiring a visit to the U.S. is a project that benefits the non-U.S. company and requires only consultation, training, negotiating or marketing in the U.S.;
- Demonstrate that salary and travel expenses are paid by a non-U.S. company on a non-U.S. payroll dispersed into a non-U.S. bank account, and that the profit center for the project is the non-U.S. company;
- Avoid using the words “work” or “employment” with regard to the U.S. location or company;
- If stating an intent to participate in an academic activity for which an honorarium payment will be awarded, have in hand a letter of invitation from the organization sponsoring the honorarium-related activity. The letter of invitation should clearly specify the honorarium-related event or activity and the date(s) and the location of the event. The letter must be produced for inspection if requested by an inspecting immigration officer at the U.S. port-of-entry where the visitor is applying for admission.
Tourist visas are generally used by foreign nationals who wish to travel to the United States for tourism, vacation, or to make social visits to relatives or friends. The tourist visitor category can also be used for foreign nationals coming to the U.S. for medical treatment; to participate in conventions, conferences, or convocation of fraternal, social, or service organizations; to participate in amateur musical events, sports, or contests if not being paid for participation; or to enroll in a short recreational course of study, not for credit toward a degree (for example, a two-day cooking class while on vacation).
In addition to adhering to the general tips mentioned previously, tourist visitors should also bring the following:
- A detailed itinerary with a specific return date, demonstrating that the length of stay is based on something real and not just on a desire to stay as long as possible;
- Proof of employment in their country of residence (an employer verification letter);
- Proof of property ownership in their home country;
- Printouts of bank account statements from banks in their home country.
Most importantly, tourist visitors must demonstrate a strong inducement to return to their home country, including permanent employment, meaningful business or financial connections, close family ties, or social or cultural associations.
Ultimately, U.S. consular officers and airport immigration inspectors have discretion to refuse a visa or deny entry. Certain facts are ‘red flags’ and require an overwhelming showing of nonimmigrant intent, such as U.S. citizen family members (particularly a spouse or child) who live in the U.S., or if the applicant previously applied for an immigrant visa. The best precaution is to prepare and carry proof of strong ties to the country of residence that will compel the applicant to return home.