9. Where do I apply?
If you need to come to the U.S. to conduct business, the B-1 business visitor's Visa is usually the initial step. It is generally quick and inexpensive to procure. This visa permits entry into the U.S. for a period of time necessary to conclude your business activity. In general the B nonimmigrant visa category covers visitor visitors for business (B1) and pleasure (B-2). By far the vast majority of visitors who enter the United States each year do so as nonimmigrant visitors in the B visa category. This kit however, is intended for those wishing to enter in B-1 status (Tourist Visa for Business)
Generally, stays in the United States in this category are brief, and involve such activities as conducting business on behalf of an overseas employer. However, a B-1 visa can also be used for certain religious missionary. A B1 tourist cannot be involved in employment while in the United States and cannot undertake an academic study program (with a few limited exceptions, discussed later). This Kit sets out the legitimate activities that can be conducted in the B-1 visa category and the procedure for obtaining entry to the United States in this classification.
Unlike business visitors who enter with E or L visas, most business stays are short in the B category. It is however, in certain cases, possible to obtain a period of admission of up to one year on initial entry to this country. This exception to the six-month extension rule is made for certain missionaries. In addition, extensions of stay can be granted, but for no more than six months at a time. The total time in this category is limited to one year. The Bâ€‘1 family members may receive extensions coinciding with the authorized period of stay of the B-1 visitor.
In actual practice, the Bâ€‘1 visitor is normally granted only a period of entry necessary to conduct his or her business. Most such visits are approved for less than three months. It is rare for a stay of more than six months to be granted.
Note that visitors admitted to the United States as part of the Visa Waiver Pilot Program (VWPP) or the Guam Visa Waiver Program have different rules applicable to them regarding duration of stay and extension of stay. The visa waiver program has been put into effect for visitors from many countries. Natives of these countries do not need a visa to enter the U.S. See below, for an explanation of the program
The B category applicant, unlike other nonimmigrant categories, requires that an application be made at the U.S. consulate. There is no special permission to be obtained from the Immigration and Naturalization Service in the U.S. before a visa is issued. The visa application process is straightforward, and fast for many foreign nationals, particularly from Europe and Japan. The visa can be issued for long period of validity, such as ten years and for an unlimited number of entries.
Even before a B-1 visa is approved, the consular official has to determine whether or not the activity contemplated by the visitor falls within those allowed under a B-1 category. All consular posts have been provided by The State Department detailed listing approved activities. If there are any questions or concerns, the consular officers must look to the State Department for guidance. There are a few unclear areas in the listing. In most cases the Consular official resolves these concerns without the need to contact the State Department. If the Consulate were to contact the State Department every time there is a question, there would be a tremendous delay in issuing visas. Most times the traveler must arrive at the U.S. on a certain date in order to complete his or her assignment.
No Gainful Employment: The most important condition of the B category is that the visitor cannot engage in gainful employment (labor for hire) in the U.S. Notwithstanding anything you may believe, the B-1 visitor, in most cases, cannot engage in productive employment while in the U.S. Productive employment includes both services for hire on an independent basis (these are known as freelancers or independent contractors) and salaried work for any employer. It is the intention of this visa to have the principal benefit of the trip accrue to the foreign company. The B-1 activity should be associated with international trade or commerce. Engaging in business contemplated for B-1 visa classification generally entails business activities other than the performance of skilled or unskilled labor. Thus, the issuance of a B-1 visa is not intended for the purpose of obtaining and engaging in employment while in the United States. Specific circumstances or past patterns has been found to fall within the parameters of this classification and are listed below.
The decisive factor is: Will the visitor be paid a salary from a U.S. employer or otherwise engage in activity here that results in payment to the visitor of a fee for services rendered? Gray areas on this point can become a problem for some business visitors in the Bâ€‘1 category.
The B-1 Visa Holder must be paid from sources outside the U.S. If the B-1 visitor is planning to be paid in the U.S. or be paid for the performance of a service or contract in the U.S. most likely the visa application will not be approved. However, the business visitor may be paid his/her "ordinary and necessary" business expenses. The definitions of what are considered "ordinary and necessary" business expenses are vague.
Obey the State Department’s five broad requirements for issuance of a B visa to a foreign national. These establish non-immigrant intent. They are:
(1) The employee has a residence abroad which he or she has no intention of abandoning (notwithstanding the fact that the employer may be in a non immigrant status which does not require such a showing);
(2) The employee can demonstrate at least one year’s experience as a personal or domestic servant, and
(3) The employee has been employed abroad by the employer as a personal or domestic servant, for at least one year prior to the date of the employer’s admission to the United States; or
(4) If the employee-employer relationship existed immediately prior to the time of visa application, the employer can demonstrate that he or she has regularly employed (either year-round or seasonally) personal or domestic servants over a period of several years preceding the domestic servant’s visa application for a nonimmigrant B-1 visa.
(5) The employer and the employee have signed an employment contract which contains statements that the employer guarantees the employee the minimum or prevailing wages, whichever is greater, and free room and board and will be the only provider of employment to the servant.
Of primary concern for the B visitors, is the importance of demonstrating to the consular official that they have bona fide nonimmigrant intent. This means that the visitor is truly a non-immigrant who intends on departing at the end of the authorized stay. The visitor cannot have immigrant intent. With an immigrant intent the visitor does not intend to depart the U.S. but is planning to remain in the U.S. permanently or at least for an extended period of time beyond the period granted.
Establishing non-immigrant intent is a matter of compiling enough documentation so that the Consular officer feels comfortable that you intend to return to your country after your visit.
This is done by demonstrating to the consular official that:
The amount of the proof that is required to prove this point depends on the social, economic and employment situation at home as well as the nature of the visitor’s plan in the United States.
Special Conditions for Large Companies
When a business visitor is entering the U.S. on behalf of an established company that is likely to be known by U.S. consular officials, a letter from the company setting forth a legitimate business reason for the trip, specifying dates during which the business will be transacted, and including supporting documentation of the trip arrangements, will usually suffice to demonstrate bona fide nonimmigrant intent. Here’s why:
In this type of case, the company-supporting letter should contain the following statements:
A statement that the employee’s travel expenses and means of support during the trip will be paid by the employer.
Consider this Before You Begin: For small companies unknown to the U.S. consulate or for individuals who are selfâ€‘employed it is more difficult to obtain a B1 visa. In these cases it is recommended that more detailed documentation should be presented in order to increase probability to obtain approval.
4 Important Questions that can help get your B-1 Application approved
What we need here is to establish certain roots. Such as: having a steady, secure job, owning a profitable business or investments in real estate. These are some of the best evidence of a strong connection abroad that would assure the consulate that you intend to return to your home country. In addition if you are coming alone without your family, it would also go far in establishing that the applicant will be returning to his country. Maintaining a residence such as a house, condo or apartment is another important element of proof. Many times the B-1 application is denied because the applicant used the business address as his own for convenience instead of clearly indicating that he or she has a residence.
A nonimmigrant visa application can be made at any visaâ€‘issuing U.S. consulate, not just a consulate in the visitor's home country. However, if you have ever overstayed your visa you will surely be limited to applying in at the consulate in your home country.
You should generally apply at the consulate in your home country. It is State Department policy for a consulate not to deny a visa application when the applicant is not a national of the country where the consulate is located. But in real life, applicants who are citizens of countries with a high rate of visa refusals and overstay will probably have great difficulty in having a third country consular post accept the application. Even if they accept the application, they could hold the application in limbo while it sends a request for information (called a "visa alpha cable") to the U.S. consulate nearest to the visitor's residence. In these cases it is very easy for the consular post to refuse to issue the visa simply if they believe that the applicant has failed to provide sufficient proof to establish that he or she is a bona fide nonimmigrant.
It is therefore particularly advisable for nationals of countries with high rates of visa refusals and overstays, such as Brazil, Mexico, Ecuador, Peru, Central America India, Hong Kong, Taiwan and the Philippines, to file in their home country. All consulates that issue visas have a special section for nonimmigrant visa applications and issuance, and the intending visitor generally waits in line at that office to submit the papers to a consular official who reviews the papers for completeness. After a wait, during which a consular officer completely reviews the papers being submitted the applicant will be called to a front counter or desk to be questioned about the application. If the consular officer is satisfied that the visa should be issued, the visa applicant simply waits while the visa is attached to the passport.
In countries where the visa refusal rate is low, such as in Western Europe consulates do not require that a visa application for Bâ€‘1 visas be made in person. Instead they permit the visa applicant to mail the visa application to the consulate or to have it delivered by a company representative. The consulate will review the application and make a decision. They will then return the applicant's passport by mail or hold it to be picked up by the applicant. In most cases this procedure only applies to citizens of the country where the consulate is located. To determine whether the consulate will accept a mail in application, you should call the consulate and ask to speak with the Vice Consul in charge of nonimmigrant visas. Use these types of application if the application is perfectly clear and you do not believe the consul will have any questions. If it looks like there could be any possible questions that may come up it would be much better for the applicant to make a personal appearance in order to be available to respond to any question that may be brought up. In this way you could get a quick resolution to a problem. But as you can imagine, only employees of large or well-known companies will be able to apply in this manner. Most every one else is required to apply in person.
When you entered the United States a white card was attached to your passport by U.S. Immigration. This card is called an “I-94.” An extension of stay can only be granted if the time on the Iâ€‘94 has NOT expired. It also cannot be granted if the applicant has violated the terms of his visa category. For example is the person entered as a Bâ€‘1, a tourist, he would be in violation if he worked without permission of the immigration service. The application of extension should be submitted no less than 15 days before the end of the authorized stay nor more than sixty days prior to the expiration of the visa. However, the application will generally be accepted as long as it is filed anytime before the expiration of the visa.
Look carefully at the form Iâ€‘94 attached to your passport. There is a red stamp on it which has written within it a date. This is the last day you are authorized to stay in the United Sates. Do not confuse this with your visa, which you received at a U.S. consulate abroad. The date on the visa stamp in your passport indicates the last that you may enter the U.S. Each classification of nonimmigrant visa has its own individual maximum stay period. For example B visas can only remain the United States for up to one year, H visas only 6 years, and students eight years.
If you entered as a B-1 tourist for business, you may apply for an extension of stay. You may include your spouse and your unmarried children under age 21 as co-applicants in your application for the same extension of status if you are all in the same status now or they are all in derivative status.
The application for Extension of Temporary Stay is filed on form Iâ€‘539 and must be accompanied by a filing fee. The application is submitted to the district director in the district where the applicant is staying. Processing can take approximately 60 to 90 days. If the application for extension is approved it you will receive a written notification of the extension as well as a new I-94. If denied you will still be granted a short while to leave the U.S. without being out of status. There is no appeal from a denial of an application for extension of temporary stay. To download the forms click here.
The application for extension must be filed directly with to the USCIS. More detailed information here.
The application packet should consist of the following:
1. The reason for the request of extension. In it explain what the original purpose of the trip was and why there is a need for extension of time. (Such as – more meetings, more presentations, more consultations or negotiations).
2. What are the arrangements for departure and that the need to stay is still temporary.
1. Negotiations with U.S. Company have not concluded.
2. Additional sales or marketing opportunities are available.
3. Meetings have been rescheduled.
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Moses Apsan and his staff, based in New York City and Newark, NJ provide exceptional legal services throughout the world, in all aspects of immigration to the United States, including non-immigrant (temporary visas), immigrant visa (Green Card) and deportation defense. In addition Mr. Apsan, has been practicing Bankruptcy law and Divorce laws for over 35 years, He was the President of the Federal Bar Association, New Jersey Chapter (1997-2002). He speaks Portuguese and Spanish..