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OVER-USING YOUR VISITOR’S VISA COULD SPELL TROUBLE
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
before my extension expired. 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. You must also be able to show proof of employment.
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
port of entry, and she was put on the next plane out of the U.S.
She thought 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 on a vacation ordinarily do not take along with them.
- 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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