Monday, June 02, 2008 Reeves: Avoiding the B-1, B-2 extension trap By Robert L. Reeves
B-1/B-2 visas are the most common non-immigrant 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 United States 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. Since 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-1 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 he or she can present evidence of extenuating circumstances that prevented an earlier departure during his or her last trip to the US. In addition, many US consulates will refuse to grant future visas on the ground that the foreign national overstayed his 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 re-entry for 10 years.
The law does afford a 120-day grace period regarding the accrual of unlawful presence where an applicant timely filed an extension request; that is, 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 should not be confused with failure to maintain non-immigrant 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.
Since 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 his or her B visa remains valid for future use.
