Visiting the United States

Generally, if you wish to enter the United States and to remain temporarily, you have to obtain a Non-Immigrant Visa in whatever category corresponds to the purpose of your visit. Under this heading, we’ll be dealing only with the categories B-1 (for those who wish to visit to conduct certain business or commercial activities) and B-2 (for tourists, social visitors, those coming to the US for certain medical treatments, or to take part in some cultural event). But we’ll first address the exception to the general rule, The Visa Waiver Program.

The Visa Waiver Program (VWP)

You may not have to get a visa to enter the United States if: A) you mean to visit the US for a period of 90 days or less, B) you’re a citizen of a nation that participates in the Visa Waiver Program, and C) you meet that programs many specific requirements. What follows is our own outline of the VWP; those interested in the official rendering of the same can visit here.

A. Visa Waiver Program Countries

Andora, Hungary, New Zealand, Australia, Iceland, Norway, Austria, Ireland, Portugal, Belgium, Italy, San Marino, Brunei, Japan, Singapore, Czech Republic, Latvia, Slovakia, Denmark, Liechtenstein, Slovenia, Estonia, Lithuania, South Korea, Finland, Luxembourg, Spain, France, Malta, Sweden, Germany, Monaco, Switzerland, Greece, the Netherlands, Taiwan, the United Kingdom, and Chile.

B. The Requirements of the VWP

First: Your US visit has to be for purposes covered as well by the B visas. In other words, business-wise you might come to consult or to negotiate with present or future associates, go to a conference or to a seminar or training; pleasure-wise you may come just to see the place, to travel, vacation, to see friends or family, or to take part in some sort of social event, cultural event or amateur sport. Study, but Not study- for-credit, such as you’d do if working toward a degree, is also allowed under the VWP. And the program also covers you if you have to visit for medical purposes.

Second: Your travel must be pre-authorized via the Electronic System for Travel Authorization (ESTA). ESTA is an automated, web-based pre-authorization system run by US Customs and Border Protection, an agency under the Department of Homeland Security. You may apply and (of course) pay the required fee here.

Third: You must travel to the US in or on an Approved Air or Sea Carrier. And, naturally, the US Department of State keeps an actual list of Approved Air or Sea Carriers, and you should consult it if you actually believe you might have trouble meeting this Third VWP requirement: Air & Sea Carriers.

Fourth: You must have a return-trip ticket in hand. What this means, practically speaking, is that you shouldn’t plan to arrive at a US port of entry in, say, your rich uncle’s private charter. Instead, you should buy your round- trip ticket (stay of no more than 90 days) from an airline or ticket agent.

Fifth: You must have the proper sort of passport, and that passport must be valid for at least 6 months after your planned departure from the US.  Your passport itself has to be machine-readable and it must be an “e-Passport,” meaning: it must be embedded with a computer chip on or within which is kept all the information from your passport’s data page. And you may be exempt from the 6 month’s validity requirement if you’re from a country which automatically extends a passport’s validity an additional 6 months beyond it’s stated expiration date. See the following list, also maintained by the US Department of State: The List.

And Finally: If you want to take advantage of the Visa Waiver Program, you have to be what we might as well call Clean. Here Clean means that a) You cannot ever have been denied a US visa; b) You cannot ever have been found ineligible to receive a US visa; and/or c) If you’ve ever before travelled the United States, whether you entered with a visa or via the VWP, you cannot have violated your “status,” the conditions of your stay. If you can’t meet this last requirement, you should probably consult with a lawyer.

In sum, the Visa Waiver Program is meant to provide a fairly quick and self-directed alternative to the visa process for citizens of participating nations. And it should be noted here as well that Canadians and Bermudans may also enter the United States without visas, for although neither Canada nor Bermuda participate in the VWP those countries have their own “programs” facilitating US travel and visitation. For further info regarding Canada and Bermuda see: Canada & Bermuda.

For those, however, who either cannot or choose not to take advantage of the VWP, we’ll now set out in as much detail as possible the requirements of the B visas. (Note: You might choose against the VWP if, for example, you want to visit the US for more than 90 days.)

The B-1 and B-2 Non-Immigrant Visas

The B Visas permit a visitor to arrive at a US port of entry and there to request permission to enter the country. This is an important point, and may be addressed elsewhere in greater detail, but the upshot is this: The grant of a US visa is Not A Guarantee that you’ll actually be admitted into the country. Rather, it affords you the privilege only of standing for inspection before a US Customs and Border Protection agent with the authority to decide whether or not to admit you and, if you’re admitted, how long you can stay. The B Visas permit a possible maximum stay in the United States of up to a year. The time you’re actually given, however, will be determined at your inspection and either stamped directly into your passport or onto a paper Form I-94 (though the practice of issuing these is dying out, the I-94 going digital). A 6-months’ grant is the usual, and, if you qualify, you may be able to get an additional 6-month extension. Which B Visa you’ll need is determined by the purpose(s) of your visit.

The B-1 Visa

The B-1 is the “business” variant of the category. It does Not Allow you to find actual employment in the US, that is, to work at a regular money-paying job, but you might do the such things as (straight from the Department of State site): Consult with business associates; attend a scientific, educational, professional, or business convention or conference; settle an estate; or negotiate a contract. It also covers non-business-person business, nonetheless related to professional activity. For instance, the B-2 would also cover a professional athlete coming for a try-out, as well as a med student coming for an unpaid internship or training. In addition to the general requirements one has to meet to obtain a visitor’s visa, the B-1 Visitor must be able to show that, whatever his or her activity, it benefits primarily a non-US interest. If this sort of purposeful travel is on your horizon, the following Department of State web page has more detailed information regarding what is and is not permitted travel under the B-1: Business Travel Our lawyer affiliates are available to help as well.

The B-2 Visa

The B-2 is the “pleasure” variant of the visitor visas, and you’ll want this if you’re not coming to do “business” as detailed in the B-1 category, but traveling for the sake of travel, of seeing, doing, experiencing. So touring, playing, watching or participating in amateur sport, visiting family or friends, going to a music festival, all these sorts of activities are subsumed under the B-2– though it also encompasses such pleasures as medical treatment. It goes without saying (but here we go), that a B-2 traveler, like a B-1, is Not allowed to work in the United States. A Visitor is supposed to be, is Required to be, just that: Someone who comes intending to travel, see, learn, or to engage in one or the other of the activities described above, but, most of all, to simply Pass Through. And thus we come to the specific requirements you’ll have to meet in order to get a Visitor’s Visa.

What Makes a Visitor?

First: You’ve got to be able to demonstrate that you are in fact a Non-Immigrant. In other words, by your actions, your actual ties to your home country, your aims and your commitments, you’ve got to make it clear that you Do Not Intend to Stay, which is to say, to Immigrate (reside permanently) in the United States.

Second: (and by way of meeting the first requirement): You’ve got to have a residence, a home elsewhere, which you don’t intend to abandon.

Third: You should be able to demonstrate that you mean to visit the United States only temporarily and for a purpose covered by the B Visa category.

And Finally: (and by way of meeting all these requirements): You’ve got to be able to show that you’ve got money enough to carry you through your US visit and back to home. This from the DoS Foreign Affairs Manual:

9 FAM 41.31 N1 TEMPORARY VISITORS

Factors to be used in determining entitlement to Temporary Visitor Classification are as follows: (1) In determining whether visa applicants are entitled to temporary visitor classification, you (the consular officer) must assess whether the applicants: (a) Have a residence in a foreign country, which they do not intend to abandon; (b) Intend to enter the United States for a period of specifically limited duration, and (c) Seek admission for the sole purpose of engaging in legitimate activities relating to business or pleasure. (2) If an applicant for a B1/B2 visa fails to meet one or more of the above criteria, you must refuse the applicant under section 214(b) of the INA. (See 9 FAM 40.7 for a complete discussion on Refusals Under Section 214(b)). Here’s the link (full of fun detail): The Link.

On the Question of Intent

At least one point, in all this, merits further comment here. Readers will have noted that at two crucial points along the way to a US visit they will be questioned as to their Intent. This has a somewhat sinister tone to it (and in fact it’s probably cousin to the mens rea of criminal law), but it comes to this: If you want to get a Non-Immigrant visa, you must make it clear in making your application and upon arriving at a US port of entry, that you Do Not mean to stay. Why? Because the law of the United States, by and through its consular and CBP agents, presumes that you absolutely Do mean to stay. So your motives are suspect. And in this effort at making your Non-Immigrant Intent clear, as in life itself, you must be aware that your actions are greater evidence of your aims than are your words. Come prepared to demonstrate that you’ve got meaningful ties to your home country: A house, a rent or mortgage; a bank; a job; extended family; plans for the future; all that or some unique variation thereof. For there may be no magic quantum of proof, but there must indeed be Proof.