Publications

August, 2010

TEMPORARY VISITORS (B-1 BUSINESS, B-2 PLEASURE) AND EXTENSIONS OF STAY

A Chinese client recently entered the U.S. for vacation and at a party met someone who expressed interest in hiring the visitor as a computer programmer. The visitor’s education and experience indicated he was well able to fulfill the requirements for the offered job. He wished to accept the job offer because of its substantial pay and benefits. When he came to visit, we explained to him that he would be eligible for H-1 status as a computer programmer since he had graduated University and his visitor’s status allowed him to change status from B-2 visitor to H-1B status.

ADMISSION OF B-1, B-2

To obtain a B-1/B-2 visa, an applicant must demonstrate that he/she has a residence abroad and has no intension to abandon it. A maximum of a one year admission may be granted but normally the Immigration Service initially grants six months. An extension may be allowed after a showing of adequate financial capacity and that the proposed applicant does not contemplate an indefinite stay.

EXTENSIONS OF STAY

B-1s and B-2s are eligible for extensions. Visa Waiver entrants (mostly from Western Europe and Australia) are admitted only for 90 days without extensions; transit entrants, crewmen, fiancé(e)s, and exchange visitors if subject to a two year foreign residence requirement may not obtain extensions. If a J visa holder is not subject to ot obtains a waiver of the two year foreign residence requirement, then he/she may obtain a change of status and an extension.

CHANGE OF STATUS

B-2 TO F-1 – VISITOR TO STUDENT STATUS

If a request for a change of status from B to F is sought within 60 days after arrival, the Immigration Service will be skeptical, believing that the visitor had a preconceived intent to enter as a student. If the visitor applies for a certificate of eligibility from a school too close to the time of entry, the Immigration Service will also likely question the intent of the visitor, viz., to have come with a preconceived intent to enter school. However, one may change from visitor to a student status if one can show there was no plan to do this before coming to the U.S.

An application for extension must be filed before the applicant’s authorized stay expires.

B-2 TO H-1

A visitor who is offered a job in a specialty occupation (H-1) when visiting the U.S. and who has a college degree may change status from B to an H-1, provided the applicant is in status. The H-1 status can be granted for 3 years and then may be renewed for 3 more. During this period, the employer may process an application for the visitor’s permanent residence by filing for a Labor Certification by showing that the applicant will be paid the prevailing wage for the specialty occupation and that the employer has not been able to find a U.S. employee who is available and qualified to do the work the employer needs.

B-2 TO L-1

A change of status may be sought for a visitor from B status to L status (intra-company transferee) if within the past 3 years the visitor has worked for a parent, affiliate or subsidiary abroad of a petitioning employer in the U.S. The job must be in a specialized skill capacity or as an executive or manager. If the applicant worked in an executive or managerial capacity, he/she may receive up to 7 years authorization to work here; if in a skilled capacity, then only up to 5 years. As with the H visa, the employer may apply for permanent residence for the visitor.

B-2 TO E1 OR E-2

An E-1 (treaty trader) or E-2 (treaty investor) change of status may be applied for by a visitor if at least 51% of the offering employer’s equity belongs to nationals of the tourist’s country. For the E-1 category, more than 50% of the trade must be between the petitioning employer here and the tourist’s country abroad. The E-2 category is a treaty investor and for this category not less that 50% of the equity of the petitioning employer must be held by citizens of the tourist’s home country. The tourist must be employed as a manager or an executive or be in a highly specialized skill capacity. Like the H and L categories, the petitioning employer may apply for the tourist’s permanent residence. Also the period of extension of stay for the E visa may be granted for 3 or 4 year increments and may be extended for an additional 3 or 4 years.

Like the visa categories of E, F, H and L, a change of status may be authorized and extensions granted for the categories: I, journalist, O, persons who have extraordinary ability in the sciences, arts, education; business or athletics, P for athletes and group entertainers.

RELIGIOUS CATEGORY
B-2 TO R

A Minister, or persons working in a religious vocation or occupation for not less that 2 years abroad preceding the change of status application must have a bona fide non-profit religious organization’s offer in the U.S. and be of the same religion denomination as the Minister or Religious worker.

In all of the category heretofore mentioned, viz E, F, H, I, J, L, O, P and R spouses and children may accompany or follow to join the principal alien.

If you need help or advise, call us at 212-944-9420.

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New York Immigration Lawyers > Immigration Publications > August 2010