The B-2 Option - Your Family's Visit To The U.S.

May 2011 - By Shahzad Ahmed with NeJame Law

For those who have immigrated to the United States, there are loved ones in their country of origin, who long to reunite with them. However, bringing your relatives to the States for a visit is not necessarily easy. Unless your relative is a citizen of one of the countries belonging to the visa waiver program, or among those few exempt from a visa, he or she must apply for a visa at the U.S. Embassy in their country. Let's review the background and common problems in applying for this visa.

Why the Funny Name?

The Visitor Visa is referred to as the "B-1/B-2" visa. The authority for the visitor visa is found in Section 101(a)(15)(B) of the Immigration and Nationality Act. This is where the "B" comes from. Further, subsection (B)(i) permits visitors to come to the United States for a business purpose, while (B)(ii) permits visitors to come for pleasure.

Discretion

The first thing I advise clients about applying for a B-1/B-2 visa is that unlike the family based immigrant visas, the Department of State has a great deal of latitude in adjudicating these visas. In fact, a vast majority of these visas are refused on the grounds of Section 214(b). Section 214(b) of the Immigration and Nationality Act states that there is an automatic presumption that every applicant actually intends to remain permanently in the U.S. Thus, the applicant bears the burden to prove that his intent is only to visit the U.S. and not to immigrate to the U.S. Further, although the applicant may submit another application in the future, the law does not provide an appeal from the decision of the officer. Hence, the Department of State enjoys much discretion in the issuance of the visitor visa.

Intent to Return

In order to prove that the applicant does not intend to immigrate, but only visit the U.S., he or she must prove sufficient ties to his or her home country. Although the U.S. Embassies routinely make their decisions without examining the documentary evidence, I encourage my clients to be prepared to present any evidence establishing their ties to their country. This evidence may be in the form of a deed showing ownership of property, letter from the employer, or other ties showing the applicant's interest to return to his or her home country.

Purpose of Visit

In order to show your family's reason for the visit, the Embassy often requests a letter of invitation. Your letter of invitation, among other requirements, should explain the reason for the trip, whether it is a family reunion or touring Disney World, etc. A detailed and properly drafted letter of invitation can make a difference in whether the Embassy exercises its discretion favorably.

Once They Are in the U.S.

So if the Embassy grants the visa to your loved one, he or she is ready to visit you in the U.S. However, even then there is no guarantee that your relative will be able to visit you. Upon disembarking at the airport, your family will be greeted by the U.S. Customs and Border Protection (CBP) agent who will once again confirm your relative's purpose of seeking admission to the U.S. That is right! The issuance of a visa is not a guarantee of admission to the U.S. Upon entry, the applicant must again prove his eligibility for admission to the U.S. If the CBP determines that the applicant is inadmissible to the U.S. for any reason, whether it is for an intent to immigrate, fraud, criminal conviction, or any other qualified reason, then he or she may refuse admission to your family and remove them from the U.S. Unless your relative is permitted to withdraw his or her application for admission,or claims a credible fear of returning to his or her home country, he or she will be removed from the U.S. and in most cases, be barred from future admission for 5 years.

Presuming that your family is admitted to the U.S., they are required to return to their home country prior to the expiration of their stay. If they desire to stay longer, then they may apply for an extension of their visitor status. In support of their application, they must explain the purpose of their continued visit.

It is crucial for your relative to maintain status while in the U.S. since it may have implications on his or her ability to return to the U.S. in the future. For example, visitors are not permitted to earn income in the U.S. or overstay their status.

This article highlights some common issues faced by families seeking to visit their relatives in the United States. For advice specific to your immigration matter, it is necessary to consult with an experienced immigration attorney.