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Edition:  þ FLORIDA   o  METRO (DC-MD-VA-NY)
US IMMIGRATION UPDATES IMMIGRATION UPDATES / 25 JAN 2002
Tips on how to prepare your "B" visitor extension requests
By Vanessa S. Barcelona
The B classification is defined in Section 101(a)(15)(B) of the Immigration and Nationality Act (INA) as “an alien (other than one coming for the purpose of study or of performing skilled or unskilled labor…) having a residence in a foreign country which he has no intention of abandoning and who is visiting the United States temporarily for business or temporarily for pleasure…”.
Those entering the United States as visitors for pleasure are given B-2 status; and those entering for business purposes are granted B-1 status. Depending on the stated length of stay at the port of entry, the B visa holder entering for pleasure purposes is usually granted six (6) months, and such permitted duration of stay is stipulated in the I-94 Arrival/Departure record. Status to B-1 visitors for business are usually much shorter, depending on the reasons for the business trip as stated at the port of entry. The I-94 card then determines the length of stay permitted by the U.S. Immigration and Naturalization Service. Unless an application for extension of status or an application for change of status is filed prior to the expiration date on the I-94 card, the visitor falls out of status, and is thus unlawfully present in the United States. Note that you don’t have to obtain an approval on your request for extension or change of status before your I-94 expires. You simply must have had the request (filed on form I-539) submitted to the INS (i.e., received by the INS) by the expiration date of your permitted stay. The I-539 form, filed with a filing fee in the amount of $120.00 (Caveat: INS filing fees are scheduled to increase across the board as of February 19, 2002. For Form I-539, the fee will increase to $140.00 Make sure you file with the correct filing fee if filing prior to or after the cutoff date. Check the INS website at www.ins.usdoj.gov for up-to-date information on the matter. You may also download the I-539 form on the same website, or call 1800-870-3676 to request the form.) The application, and the supporting documentation and corresponding fee, are filed with the INS regional office with jurisdiction over the place of temporary residence. You don’t file this form with the local INS office in your area! Many new policy measures have been implemented by the government as a result of the terrorist attacks of September 11, 2001. Passports and visas have been carefully monitored at our borders, and our ports of entry.
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Similarly, INS offices are looking more closely at applications for extensions of stay by B visa holders, in an effort to ensure that the stated reasons which led to issuance of the B visa, and the subsequent permit to enter, still hold true. More and more, it has become clear that certain documents must be presented now which may not have been necessary for an approval in the past: 1. Return ticket is required. You must submit a copy of your return transportation ticket, one that identifies your exact departure date. Tickets showing a prior flight not taken, or an open ticket are no longer acceptable, and insufficient to establish intent to depart the United States. 2. Submit a separate statement explaining in detail the reason for the request for extension and why your extended stay is only temporary. Include a statement of what arrangements have been made to facilitate the extended stay, including the effect of the additional time abroad on foreign employment or business obligations. In other words, provide evidence of what you have done to make sure that your obligations in your native country have not been compromised by the additional time spent abroad. 3. Similar to Item 2, you may have to explain what arrangements have been made with your children’s school if there are minor school- age children traveling with you if the extension request will also cover your dependent minor child(ren). 4. Submit proof of your ability to financially cover the additional expenses posed by your additional stay. If submitting a bank statement from a foreign country, make sure that it is current (i.e., issued within 30 days of the request). It is also a good idea to submit proof of the current exchange rate at the time of filing the request, if the statement reflects funds in a foreign currency. If you are submitting copies of a bank statement for a U.S. dollar account abroad, then make sure this is specified. In the alternative, an Affidavit of Support (Form I-134) can be filed by a family member who is a US citizen or USLPR, confirming that your financial needs will be taken care of during this extended stay. The form I-134 will be submitted with proof of the affiant’s immigration status, their most recent income tax returns, employment letter and most recent paystub – documents to prove the income as stated in the I-134. 5. If you are married and/or with children, and they are abroad, submit proof of your family’s presence abroad (current employment letter for spouse and school records for children). This is good evidence of your intent to return abroad at the expiration of the extended stay requested. 6. Submit a letter from your current emloyer confirming that they are aware of your need to stay for a longer period of time; and that your position is secure until your arrival. If applying for an extension of your business trip, provide proof of the business reasons for the additional time requested. This may include a letter from the foreign employer confiming the need to “finish up” some projects in the United States.
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The list above is not all-encompassing. Use your judgment when submitting documents. Just remember that you must successfully prove two (2) things: (1) your stay is temporary (i.e., you will depart within a definite amount of time as stated in your request); and (2) you have the financial means to stay for the additional time requested. Clearly, the key to a successful application is the submission of documents that will demonstrate your awareness of the limitations of your stay, and your intent to abide by such limitations. Establish clearly that you have not accomplished the reason for your trip in the first place. Establish clearly that the additional time you are requesting is sufficient to accomplish your goals; and that you have made clear and definite plans to effectuate your departure at the end of the time you request. Establish clearly that you are not merely seeking an extension to indefinitely prolong your stay in the United States. If approved, you should depart prior to the new expiration date which will be granted to you and which will be noted in your new I-94 card included in your approval notice. If approved, you may use the new expiration date as your guide should you eventually decide to prolong your stay in the United States and apply for another status (ex., H-1B worker, student, etc.). You should apply for such change, if applicable to you, prior to the expiration date of your new I-94. Note, however, that should your plans change while your application is still pending, you may submit an application for change of status even while your request for extension is pending. However, you will need to submit proof that the extension request was filed prior to the expiration of your initially approved stay (as indicated in your original I-94 card). If your application is denied, you will accrue unlawful presence in the United States as of the date of your denial. You are also in possession of a B visa that is cancellable. This means that your visa may be cancelled the next time you present it at a U.S. port of entry, if it is discovered at that time that you overstayed your previous stay with that same visa. It will be very difficult to have another one issued at the U.S. consulate abroad if your visa is cancelled for this reason. Moreover, you will not necessarily be told of the cancellation until you have already made another trip to the United States and have gone through the expense and time taken to travel to the United States. If you are present in the United States for 180 days or more (but less than 365 days) following your denial, then departing from the United States after that time will subject you to the 3-year bar. You will not be allowed to re-enter the United States within 3 years of your departure. If you are unlawfully present for 365 days or more, you may not re-enter, following your departure, for 10 years. These are very harsh consequences, if you find yourself in this predicament you should immediately seek the advise of a competent immigration attorney to explore any avenues of relief, if any.
VANESSA BARCELONA is a partner with the law offices of Barcelona & Pilarski, P.A. She obtained her law degree from the University of Florida. She is a member of the American Immigration Lawyers Association, the American Bar Association, and the Florida Bar. Please send all e-mails to: vsbarcelona@earthlink.net
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