April 2002 Newsletter*   (Updated October 2005)

    By James A. Bach, Esq.

 

On April 12, 2002, the INS published two rules that will significantly limit visits to the United States using B-1 (“Visitor for Business”) and B-2 (“Visitor for Pleasure”, or tourist) visas.  One rule is effective immediately, and the other will become a final rule only after the public has had a chance to comment on it, perhaps as early as this summer.

The rule that is effective immediately prohibits those in B-1 or B-2 status from beginning a “course of study” in the U.S. before obtaining an approval from the INS to change from B-1 or B-2 to F-1 (student) status.  Previously, the visitor could begin the course of study while waiting for the INS to change his or her status to F-1 status, a process that often takes several months.

“Course of study” does not include casual, short-term classes that are not the primary purpose of the visitor’s presence in the U.S.  For example, a single English language or crafts class would not be a “course of study” and could still be taken while in B-1 or B-2 status.

The proposed rule that may become effective during the summer of 2002 will severely limit the length of time a visitor may stay in the U.S.  Currently, it is standard to admit a visitor for an initial period of six (6) months, and to allow additional extensions of six (6) months upon application to the INS.  The maximum period of initial admission for B visitors is currently one year.

The proposed rule would limit the initial period of admission for visitors for business (B-1) and visitors for pleasure (B-2) to thirty (30) days, unless the visitor can prove to the immigration official at the border or airport that more time is needed.  The maximum period of initial admission will be reduced from one year to six (6) months.   The INS has explained this proposed rule as follows:

“Because the vast majority of B-1 and B-2 nonimmigrants do not have a stated need to remain in the United States for more than 30 days, it is reasonable to expect that most will depart within that time frame.  Accordingly, in any case where there is any ambiguity whether a shorter or longer period of admission would be fair and reasonable under the circumstances, a B-1 or B-2 nonimmigrant should be admitted for a period of 30 days. This period is neither a minimum nor a maximum, and the inspecting Service officer will be authorized to admit a B nonimmigrant for a shorter period or for a longer period (not to exceed 6 months), depending on the circumstances and the stated purpose of the alien's visit to the United States.”  (Federal Register: April 12, 2002 (Volume 67, Number 71), pages 18065-18066)

Also, the proposed rule greatly limits the ability of visitors to apply to extend their stay beyond the time initially granted at the border or airport when they enter the U.S.  Instead of the current practice of fairly automatic extensions of six (6) months, the INS will grant extensions only in unusual circumstances such as “an event that occurs that is out of the alien's control and that prevents the alien from departing the United States [and] compelling humanitarian reasons, such as for emergency or continuing medical treatment.” (Federal Register: April 12, 2002 (Volume 67, Number 71), page18066).  Other circumstances that may support an extension of greater than six (6) months include the following:

·        The visitor owns a home in the U.S. and occupies the home on an occasional or seasonal basis only.

·        The visitor is performing religious missionary work in the U.S. (but not sales of religious articles).

·        The visitor is the employee of a foreign airline.

·        The visitor is a servant of another nonimmigrant (for example, the servant of an investor who has an E-2 visa).

·        The visitor is setting up a new office for a foreign company.

The proposed rule will also eliminate a change of status from visitor (B-1/B-2) to student (F-1) status unless the visitor notifies the immigration inspector at the time of entry into the U.S. that he or she intends to find a school and begin a course of study.  Often a prospective student will communicate this intention to the official at the U.S. Embassy or Consulate at the time of applying for the B visa, and the consular official will write “prospective student” in the passport.  However, under the proposed rule that is not enough.  To be eligible for a later change to student status the visitor must also inform the INS official at the border or airport at the time of entry.  [Note:  As of October 2005, this proposed rule was never finalized, but it still reflects some of the criteria currently used for admitting and extending the status of visitors]

 

* The purpose of this newsletter is to inform potential clients of the type of legal issues our firm handles. It is not intended to establish any attorney/client relationship, and we accept no responsibility for the accuracy of the information provided. We cannot discuss or clarify any of the information contained in our newsletters, except with our existing clients.

 

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