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FILIPINA SENT BACK FOR OVER-USING HER VISITOR'S VISA
by Michael J. Gurfinkel, Esq.
Dear Atty. Gurfinkel:
I have a 10-year multiple B-1/B-2 visa. Recently,
I went to the U.S. for a vacation, and was given 6 months by the
Immigration Officer at the airport. I applied for an extension,
and was granted another 6 months.
I returned to the Philippines about 3 months ago,
and before my extension expired. So, I did not overstay. I would
now like to go back again to the U.S. Do you think that I will
encounter any problems if I go back to the U.S. so soon after
returning from my recent vacation? After all, I do have a 10-year
multiple, so shouldn't I be allowed to come and go to the U.S.
as often as I like without any hassles?
Very truly yours,
S.L.
Dear S.L.:
Even though a person has a valid visitor's visa,
a person is still subject to Section 214(b) of the Immigration
and Nationality Act. That law creates a presumption that
any alien wanting to go to America intends to immigrate, unless
that alien can prove otherwise (i.e. prove that he or she is not
intending to immigrate). In other words, you have to prove that
you have sufficient roots, ties, and connections to your home
country, and an incentive to return to the home country and not
overstay in America.
Many people who apply for visitor's visa, or those
who already have visitor's visas, run into problems when they
cannot overcome this presumption. It must be stressed that a visitor's
visa can be canceled at the port of entry, at the discretion of
the Immigration officer, if he believes you have "immigrant
intent".
In fact, I recently came across a case where a woman's
10 year multiple B-1/B-2 visa was canceled at the airport, and
she was put on the next plane out of the U.S. (which took her
through Amsterdam, Tokyo, and then, eventually, to Manila). She
gave us her permission to publish her story (without using her
name), so that other readers will learn from her experience. This
woman believed that because she had a 10-year multiple visa, she
could come and go to the U.S. as often as she pleased, without
any problems. However, at the airport, the INS Officers were able
to uncover the following facts and information:
- On a previous visit, she was given 6 months,
and applied for another 6-month extension. So she had just been
in the U.S. for almost one year.
- She tried to return to the U.S. about 4 months
later, for another vacation. When asked what she did on her
last vacation, she told the Immigration Officer that she took
care of her sister's children in America.
- When asked what she would be doing on this vacation,
she again said she would be taking care of her sister's children.
- When she was asked how long she planned to stay
on this vacation, she said "only about 2 weeks". However,
her luggage included two large balikbayan boxes full of clothes.
So, the Immigration Officer wondered why, when she was only
going to spend about 2 weeks in America, she needed so much
clothing. (The Immigration Officer concluded that the balikbayan
had contained all her worldly possessions, and this was going
to be her "final" visit to America.)
- She had not worked in the Philippines for over
2 years, showing that she had no stable employment in the Philippines.
Instead, she was relying on support from her sister in America.
- She owned no property in the Philippines. Instead,
she lived at an apartment in the Philippines owned by her sister
in America.
- She only had $200 in her possession, which would
not be enough for a person to support herself on a vacation.
- In her luggage, she had her job resume, which
people ordinarily do not take along with them for a vacation.
- This woman had in her possession an Application
to Extend/Change Nonimmigrant Status, along with information
on how to obtain a Social Security number.
- This woman's round trip ticket was "open-ended",
which would mean that she, could, potentially stay for a very
long time.
The Immigration Officer ultimately concluded that
this woman had been overusing her visitor's visa and was treating
it almost as though it were a greencard. In other words, she could
not overcome the "presumption" of immigrant intent.
Therefore, her visitor's visa was canceled, and she was sent back
to the Philippines.
If you have a visitor's visa, then it is certainly
permissible to come to America to visit. However, if you really
want to study or work in the U.S., then you must have the appropriate
visa to do so, such as a student visa (if you want to study),
or a temporary working visa (H-1B), which is a nonimmigrant visa
for college graduates, who will be working in a job requiring,
and related to, their college degree. You should seek the advice
of a reputable attorney, who can analyze your situation, advise
you of the various legal requirements, and determine if you are
eligible or qualify for the immigration benefit you seek.
The lesson to be learned is don't treat a visitor's
visa as though it were a greencard, because you may face the same
problems as this unfortunate woman. Get the right visa instead.
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