By Brandon Meyer
The B-1/B-2 visa may be an attractive option for those interested in coming to the United States temporarily or for those who have considered other U.S. visa options, but fall short of meeting other more stringent visa eligibility criteria. Whether the B-1 or B-2 visa is appropriate depends on the intent and purpose of the visitor’s travel and strong ties to their home country.
What is the B-1/B-2 Visa?
Both the B-1 and B-2 visas are visas for temporary visitors who wish to enter the United States for a short duration, either for business (B-1) or for pleasure (B-2). The rules allow for business visitors with legitimate commercial or professional activities to enter the United States for a specific purpose. Visas for visitors for pleasure (also known as the tourist visa) are reserved for individuals who wish to enter the United States for recreational purposes, such as amusement, or visiting friends/relatives. B-1/B-2 visa holders may enter the United States for business or as a tourist, but may not perform skilled or unskilled labor, and generally may not engage in student studies without the appropriate visa, such as the F-1 or M-1. Furthermore, the B-1/B-2 is not intended for those seeking permanent residency at a later date while in the United States, as this conflicts with the visa’s nonimmigrant (temporary) intent requirement.
Eligibility for Temporary Visitors
Foreign nationals seeking entry on a B-1/B-2 visa must maintain foreign residency in their home country, have no intent of abandoning their foreign residence, and either be visiting the United States temporarily for business or pleasure.
The foreign national must establish they are only visiting temporarily either for a specific business or tourist purpose. They must demonstrate their intent to depart at the end of their requested stay. The B-1/B-2 visa cannot be used as a means to create permanent residency by leaving and returning every six months to the United States, because the visas are temporary by nature and not intended to allow long-term residency in the United States. Parents often apply for B-1/B-2 visas to visit their son/daughter on F-1 student visas and re-enter the U.S. every six months. This may alarm an immigration officer as to the parents’ true intentions although they may be able to show proof that they actually maintain a foreign residence.
How to demonstrate intent to depart
The foreign national can provide documentation of employment, or family and social ties to their residence abroad (examples include: paystubs from the foreign country, mortgage payments, copy of a lease for a rental home or apartment, proof that the rest of the family is still living and working in the foreign country, etc.). Evidence of adequate resources for traveling and staying in the United States may also be used to support this requirement. Other binding ties to ensure that the foreign national will return abroad at the end of the visit can be used as well.
Business Visitor (B-1)
The rules define “business” for the purpose of B-1 eligibility as engaging in legitimate commercial or professional activity that is not local employment or labor for hire. As a temporary business visitor, the visa holder must establish the clear intent to continue foreign residence and show that the principal place of business and actual accrual of profits will occur predominantly in the foreign country.
Permissible business visitor activities a B-1 visa holder may engage in include (but are not limited to): Engaging in commercial transactions not involving gainful employment (some examples of permissible activities: consulting with business associates; consulting with clients or business associations; negotiating contracts) and participation in scientific, educational, or professional conventions or conferences. Please keep in mind that the temporary visitor B-1/B-2 visas do not allow the visa holder to work or perform any skilled or unskilled labor.
Upon entry to the United States, a customs officer may ask the purpose of the individual’s visit, and the response is important.
– Response 1: “I work for a technology start-up company in Greece and I am here to attend a week-long conference, arrange meetings with investors, and meet with potential business partners.” [B-1 visitor may be admitted]
– Example 2: “I will be attending some training events for my company at its U.S. office location three days a week, for the next two months. The other two days a week I will be testing and writing code.” [B-1 visitor may be denied for engaging in impermissible skilled labor]
The customs officer has sole discretion to deny a foreign national entry. Therefore, documents that may explain the visit to the United States will be helpful to sustain any questions an officer may have as to the temporary nature or legitimacy of a business trip.
Visitors for Pleasure (B-2)
“Pleasure” is defined as legitimate activities of a recreational character, including tourism, amusement, visits with family and friends, rest, medical treatment and activities of a fraternal, social or service nature. Persons generally admissible in the B-2 category include: tourists, participants in conventions of social organization, persons visiting friends or family, participants in amateur musical or sports events
Dual Intent Issues
B-1/B-2 visas do not allow dual intent. This means the visitor cannot pursue permanent residency in the United States while in B-1/B-2 status. For those investors that have filed an I-526 petition for an EB-5 visa, issues relating to entry may arise when applying for the B-1/B-2 visa. While an applicant with a pending I-526 can apply for a B-1/B-2 visa for a stated business/pleasure purpose and have temporary intent, it’s ultimately up to the consular officer to decide whether the purpose of the entry is legitimate. Seeking the assistance of legal counsel prior to filing an I-526 is always recommended.
Visa Validity and Duration
Customs officers determine a visa holder’s duration of stay at the time of entry into the United States. The officer has discretion to grant a duration of stay up to one year, but most approved visits are authorized for shorter periods between six months and one year. The amount of time authorized will be indicated on the Form I-94 Arrival/Departure Record. B-2 visitors are typically granted a duration of stay of six months.
Foreign nationals may apply for an extension, if necessary. Extensions of stay can be granted in increments of up to six months. In practice, extensions require extensive documentation explaining why the extension is necessary.
The B-1/B-2 visa holder must depart the United States on or before the last day he/she is authorized on the Form I-94. Failing to do so will result in being out-of-status, which may cause the individual to be ineligible to receive a visa in the future.
Applying for a B-1/B-2 visa
Interested individuals can apply for a B-1 or B-2 visa by filling out a Non Immigrant Visa Application (Form DS-160). Applicants will then complete the remaining steps of the application process—most times including an interview—at their local U.S. Embassy or Consulate.