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The ABC's of Immigration: - B-1/B-2 Visas, Visa Waivers, & ESTA - What Visitors to the US Need to Know for 2009

The most common nonimmigrant visa is the B visa.  It was created expressly for foreign visitors to the United States, and covers both visitors for business (B-1) and visitors for pleasure (B-2).  However, it is not the only way to gain visitor entry into the US.  The Visa Waiver program, which allows visitors from authorized countries entrance to the US, is another method.  Beginning in January 2009, any visitor from a Visa Waiver country must complete an Electronic System for Travel Authorization form (ESTA), if they wish to travel under the Visa Waiver Program.  Below, we discuss the differences between B Visas and Visa Waivers, and the conditions, advantages, and disadvantages for both. 

 

What countries have been accepted into the Visa Waiver Program for 2008? 

Following two Department of Homeland Security final rules, the Visa Waiver Program (VWP) has been expanded to include a further eight countries.  From November 17, 2008, eligible citizens from the Czech Republic, Estonia, Hungary, Latvia, Lithuania, the Republic of Korea, and the Slovak Republic may apply for admission to the US as a visitor under the VWP.  From December 30, 2008, eligible citizens from Malta may apply for admission to the US as a visitor under the VWP.  Citizens from these countries must satisfy passport requirements and the new ESTA clearance, as detailed below. 

 

What countries are currently eligible for Visa Waiver travel? 

The 35 countries whose citizens are now eligible for Visa Waiver travel are: Andorra, Australia, Austria, Belgium, Brunei, Czech Republic, Denmark, Estonia, Finland, France, Germany, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, the Netherlands, New Zealand, Norway, Portugal, Republic of Korea, San Marino, Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom. 

 

What is the Visa Waiver Program?

The VWP allows certain individuals to enter the US for business or tourism visa-free provided that certain conditions are satisfied. These conditions require that the traveler is: 

·         staying in the US for 90 days or less

·         travelling for business, pleasure or transit only

·         holding a return or onward ticket

·         in possession of a compliant passport

·         not inadmissible to the US 

 

What passport requirements must a visitor from a VWP-authorized country meet? 

Individuals applying for admission as a visitor to the US under the VWP must carry passports which meet certain criteria.  All passports must be machine-readable.  Machine-readable passports contain two lines of text and characters at the bottom of the biographic details page. Further passport requirements apply depending on the date the passport was issued/renewed. Passports issued on or after 26 October 2005 must contain a digital photograph. In addition, passports issued on or after 26 October 2006 must be e-Passports for the traveler to be eligible to enter the US under the VWP.  

 

What is ESTA, and how does it affect visitors from countries with Visa Waivers? 

The US Department of Homeland Security (DHS) has announced the new online travel system for air and sea travelers on the Visa Waiver Program (VWP).  This new system, called the Electronic System for Travel Authorization (ESTA), became accessible for voluntary completion on August 1, 2008.  Under the new system, travelers for business or pleasure who plan on entering the US on the VWP will be required to log on to the ESTA website and obtain a clearance for travel to the US.  ESTA will become mandatory for VWP travelers on January 12, 2009. 

On January 12, 2009, the date ESTA becomes mandatory, failure to complete the on-line application and obtain travel authorization may result in the traveler being denied boarding, experiencing significant delays on entry to the US or being refused admission at the port of entry.  Similarly, travelers who complete an ESTA application and receive an Authorization Approved message are not guaranteed entry to the US – the approval only authorizes the traveler to board the aircraft. 

 

Where can I submit an ESTA application? 

VWP travelers may complete their ESTA application and find more information on ESTA at https://esta.cbp.dhs.gov/esta.

 

What information do I need to submit in my ESTA application?

Visitors to the US who are entering visa-free under the VWP will be required to visit the ESTA website and complete an on-line application.  Individuals entering the US with a visa will not be required to complete an ESTA application.  DHS recommends that the on-line application be completed no later than 72 hours prior to travel.  The application contains questions similar to the I-94W, such as name, date of birth, duration of trip and address in the US, and whether the applicant has been convicted of a crime. 

 

How will I know if my ESTA application has been approved? 

Once a traveler completes the application, they will usually receive a response within seconds.  The response will be one of the following: 

  1. Authorization Approved – travel authorized
  2. Travel Not Authorized – applicant must apply for a visa at an Embassy or Consulate prior to travel to the US
  3. Authorization Pending – traveler will need to check the ESTA website within 72 hours to receive a final response

 

What type of travel does ESTA allow?  How long does my approved ESTA submission stay valid? 

ESTA approvals will be valid multiple entries to the US for two years or until the applicant’s passport expires.  The applicant should log on to the website to change destination addresses and itineraries for future trips. 

 

What if my ESTA application gets turned down, or my request for Visa Waiver Travel has been previously denied? 

If you are not from a country that is on the Visa Waiver Program list, or if your returned ESTA application deemed you ineligible to qualify to travel to the United States, you are still able to apply for a B-1 or B-2 visa.  The ESTA application results have no bearing on if you can receive a B Visitor Visa.  ESTA is exclusively for individuals who visit the US with a passport from a Visa Waiver Country only.  If you want to visit the US and are not from one of these approved countries or if you have applied for travel authorization previously and was denied, you must apply for a B Visitor Visa. 

Note that if you are from a country on the Visa Waiver list and you were not approved on a past ESTA admission, you are still able to reapply to ESTA after a minimum 10-day wait. 

All Canadian citizens are also exempt from getting a visa under a different law. 

 

What if my passport indicates that I am not from a Visa Waiver country? 

If a passport does not qualify for travel under the VWP or the individual is inadmissible to the US, then the individual must apply for a B-1/B-2 visa to enable them to enter the US for tourist or business purposes. Individuals who already have B-1/B-2 visas, or who posses another valid nonimmigrant visa, are not required to comply with the e-passport/digital photograph/machine-readable requirements. 

Visitors admitted to the US under the VWP are not permitted to change their nonimmigrant status, except in very limited circumstances.  If a traveler anticipates that a change of status petition will be submitted during their time in the US, they should apply for a B-1/B-2 visa and enter the US as a visitor pursuant to the B-1/B-2 visa.

 

How can I qualify for the B-1 Business Visitor Category?

The B-1 Business Visitor category is available to persons who can demonstrate that they 1) have no intention of abandoning their residence abroad and 2) they are visiting the US temporarily for business. Entry is, theoretically, granted for up to a year, but most B-1 admissions are approved for just the period necessary to conduct business and are normally permitted to stay no longer than 3 months.

 

What limitations are associated with business visitors? 

Business visitors are quite limited in the activities in which they are permitted to engage. B-1 visa holders must not be engaging in productive employment in the US either for a US employer or on an independent basis. Any work done in the US must be performed on behalf of a foreign employer and paid for by the foreign employer. The work should also be related to international commerce or trade. The US consular officer reviewing the case will consider several factors when deciding whether to issue a visa including 1) whether a US worker could be hired to perform the work, 2) whether the work product is predominantly created in the US, and 3) whether the work is controlled mainly by a US company. If the answer to any of these questions is "yes" then the B-1 visa is likely to be denied. An exception may be made in the “B-1 in lieu of H-1B” scenario where a worker would qualify for H-1B status except that the employer is not located in the US. But note that many consulates will not consider B-1 in lieu of H-1B filings.

The following are some activities normally considered appropriate for the B-1 visa:

· employees of a US company's foreign office coming to the US to consult with the US company

 

· an employee of a foreign company coming to the US to handle sales transactions and purchases and to negotiate and service contracts

 

· coming to the US to conduct business or market research

 

· coming to the US to interview for a professional position in order to gain experience to help in finding a position in one's home country

 

· attending business conferences, seminars, or conventions

 

· an investor coming to set up an investment in the US or to open a US office

 

· personal or domestic servants who can show they are not abandoning a residence abroad, have worked for the employer for a year and the employer is not residing in the US permanently

 

· airline employees who are paid in the US but an E visa is not available because no treaty exists between the US and the airline's country

 

· professional athletes who are not paid a salary in the US and are coming to participate in a tournament

 

· a member of a board of a US company coming to a board meeting

 

· coming to the US to handle preliminary activities in creating a business (opening bank accounts, leasing space, incorporating, etc.)

 

How can I qualify for the B-2 Pleasure Visitor Category?

Of the more than 20 million nonimmigrants admitted annually to the US, more than three fourths come as tourists. The appropriate visa category for a tourist is the B-2 visa (a B-2 visa actually covers tourists, visits to relatives or friends, visits for health reasons, participation in conferences, participation in incidental or short courses of study and participation in amateur arts and entertainment events). Prospective students can also obtain a B-2 visa, but they often will be denied the change to student status in the US unless they announced their intention to do so to the INS inspector at the border and/or informed the consular officer at the time of the B-2 application.

The process for obtaining the B-2 visa can be quite simple or very difficult depending on the national origin of the applicant, the age and marital status of the applicant, and the applicant's ties to the US and his/her home country.

 

What limitations are associated with the B-2 Pleasure Visitor Category? 

Tourists are normally given a six-month visa which can be extended in some circumstances for an additional six months. Unlike some other nonimmigrant visas, application is made at a US consulate and no INS approval is necessary. Also, the applicant's spouse and children must independently qualify for the B-2.

In order to qualify for a tourist visa, an individual must meet a few broad requirements necessary to show nonimmigrant intent:

· The alien is coming to the US for a specific period of time

· The alien will not be engaging in work and will engage solely in legitimate activities relating to pleasure

· The alien will maintain a foreign residence that he or she has no intention of abandoning during the period of his or her stay in the US

For a tourist to show nonimmigrant intent and demonstrate compliance with the above tests, the key issues are financial arrangements for the trip, specificity of trip plans, ties to the alien's home country and ties to the US.

More specifically, consular officers are instructed to consider the following factors:

· whether the arrangements for defraying expenses during the visit and return passage are adequate to obviate the need for obtaining employment in order to provide the funds to return home;

 

· if relatives or friends are sponsoring, whether the ties between the alien and the supporter are compelling enough to make the offer credible;

 

· whether the alien has specific and realistic plans for the visit (not just vague and uncertain intentions) for the entire period of the contemplated visit;

 

· the period of time planned for the visit is consistent with the purpose of the trip and the alien has established with reasonable certainty that departure from the US will take place when the visit is over;

 

· the applicant's proposed length of stay is consistent with the timeframe limitation offered by the hosting relative or fried (an alien's stated intention to remain in the US for the maximum period allowable by US authorities will be looked upon negatively);

 

· whether the applicant can show reasonably good and permanent employment, meaningful business or financial connections, close family ties, or social or cultural associations which indicate a strong inducement to return abroad.

Generally speaking, an applicant’s chances for getting a visa will be improved if the planned trip is short, the itinerary is clearly listed, the applicant can easily prove he or she has the money to pay for the trip and the applicant has a job at home and can show that the time away has been approved by the employer. Retirees will have a better chance if they can show strong family and economic ties to the home country and finances to support the trip. Of course, in all cases the home country makes a big difference. The lower the visa overstay rate for nationals of a particular country, the better the chances overall that the application will be approved.

 

What limitations does Travel Authorization under a Visa Waiver have versus a B-1 or B-2 visa? 

While being able to travel without a visa is convenient for many, it is important to be aware of a few key restrictions on people from Visa Waiver countries who are authorized to travel.  First, unlike a normal B-2 visa under which a visitor would be authorized to stay for six months, Visa Waiver entrants can only stay a for a maximum of 90 days.  Second, it is not possible to apply for an extension of stay or a change of status to another non-immigrant or immigrant classification.  Finally, A Visa Waiver entrant will typically be unable to apply for a new visa at a US consulate in Mexico or Canada for reentry into the US.  

 

Do I need to submit an ESTA application if I have a B-1 or B-2 visitor visa? 

No.  As long as a traveler’s B visa remains valid, they are exempt from filing an application.

 

 

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Siskind Susser
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Memphis, TN 38119
T. 800-343-4890 or 901-682-6455
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Email: info@visalaw.com

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