By Attorney Nancy E. Miller
One of the most common means of entering the United States is through a visa for temporary visitor. An applicant for such a visa must be a foreign national who has a residence in a foreign country that is the actual dwelling place in fact. However, it is not necessary for the foreign national to own the home in which she lives. The nonimmigrant must have no intention of abandoning that foreign residence and must be coming to the United States to visit temporarily for business or pleasure. The visa for business is called a B-1 and the visa for pleasure is called a B-2.
A visitor for pleasure includes those coming to the U.S. as a tourist, for medical purposes, to participate in a convention of social organizations, to participate in amateur musical, sports, or similar events with no remuneration, a dependent of U.S. Armed Forces personnel, one accompanying a transit visa holder or a visitor for business, a non-spouse partner accompanying a principal E [treaty investor or treaty trader], F [student], H [temporary worker] or L [intra-company transferee] for duration of stay who can demonstrate eligibility for the B-2 (i.e. they do not have immigrant intent or other grounds of inadmissibility).
Visitors for business include those coming to the U.S. to engage in commercial transactions not involving gainful employment. Acceptable activities include negotiating contracts, litigation, consulting with clients or business associates. Making phone calls, giving employees instructions or accompanying clients to their cars are not considered gainful employment. However, full-time management of a U.S. enterprise is. A B-1 visa holder may study if it is part of work or recreational activities. She may participate in scientific, educational, professional, religious or business conventions. He may receive an honorarium and incidental expenses for usual academic activities from an academic institution as long as it does not last more than 9 days at a single academic institution and the foreign national has not accepted more than 5 such honoraria in a 6 month period.
One who would ordinarily qualify for an H-1 [worker] visa may enter the United States on a B-1 if he receives no salary or remuneration other than an expense allowance or other reimbursement incidental to a temporary stay. The time must not exceed 6 months and the applicant must engage in hands-on work that would require an H-1B. The work must meet the H-1B specialty occupation standard. And the applicant must show that he does not have immigrant intent.
As stated above, the applicant for a visitor’s visa must not have immigrant intent. That means that the applicant must intend to depart when the period of lawful stay expires. He must not be using the B-1/B-2 non-immigrant visa as a means of entering the United States when he actually intends to permanently live here. This type of visa differs from H-1Bs and L visas which allow the foreign national to have “dual intent”. Dual intent means that the alien has the intention to work in the United States temporarily on that non-immigrant visa but also intends to remain in this country permanently.
Foreign nationals seeking visitors’ visas must be “otherwise admissible”. That means that they must not be inadmissible under the various categories set out in the Immigration & Nationality Act. These categories include foreign nationals who have certain health disorders that may pose a threat to the alien or others, those who have been determined by the U.S. government to be a drug user or abuser, those convicted of crimes involving moral turpitude, those who the consular officer has reason to believe has engaged in or intend to engage in certain forbidden activities, such as controlled substance or human trafficking money laundering, violation of espionage laws or terrorist activities, those likely to become a public charge, those who have entered the United States without “papers” or whose visa has expired, those who have made a material misrepresentation in order to obtain an immigration benefit, stowaways, smugglers, those previously removed from the United States, those who incurred the “unlawful presence bar” by having been in the United States unlawfully for between 6months to one year and who departed the United States less than 10 years prior to the current application for admission, and those unlawfully present in the United States after previous immigration violations.
The list, which is not exclusive, appears daunting. However, a non-immigrant visa waiver exists for many of the grounds of inadmissibility. As with all things immigration, the waiver is more difficult to obtain than it would seem at first glance, but it is certainly possible. One interested in coming to the United States for any reason would be wise to consult an experienced and knowledgeable immigration lawyer before applying for a visa.
