Client: Non-Immigrant Temporary Visitor
Client’s Country of Origin: Canada
Case Type: Request for Entry into the US as B2 Temporary Visitor; Humanitarian
Date of Application: August 2018
Date of Approval: February 2019
Herman Legal Group is retained by many Canadian clients and works with many Canadian immigration lawyers, too. In this case, our client, a citizen of Canada, comes from a wealthy, successful family. However, as a young man, he suffered from serious medical issues that consumed his day-to-day life. After seeking medical institutions and trying several treatments in Canada, nothing worked. Our client’s family burdened in distress over their son’s health. Finally, they came across a medical clinic located in Utah that would treat our client’s needs, and after trial, the clinic’s assistance was found successful.
Our client originally came to the US on a B-2 tourism visa in order to receive his medical treatment. For B-2 nonimmigrant visas, the applicant is admitted into the US for temporary duration for a specific purpose.
In this case, our client’s sole purpose to enter the US was to obtain treatment. However, our client was unaware that his admittance was limited to a six-month duration. Our client stayed at the medical facility for over the amount of time his visa was granted by 18 months.
This means that he was technically present as an undocumented immigrant in the states for over a year. Unaware of this issue, our client returned to Canada, and a few years later attempted to re-enter the US for treatment. Officials at the border denied his entry due to his overstay in the past, which deemed him legally inadmissible.
Furthermore, the officers instructed our client to file an I-192 Application for Advance Permission to Enter as a Nonimmigrant based on his urgent need for medical treatment. Immediately, our client filed the form and paid all fees there at the border. Six months went by without our client receiving treatment and still waiting upon approval of his application.
Fortunately, our client’s family knew Attorney Richard Herman and asked for his help. In immigration law, it is a difficult task to establish a successful case to waive a client’s inadmissibility when little to no evidence is present. Despite this circumstance, Attorney Herman provided his expert assistance in order to help our client attend to his serious health matter.
Attorney Herman assembled as much supplementary evidence in order to establish that our client is entitled to receive a temporary visa. The USCIS sets the standard in assessing an immigrant’s entitlement to a B-1/B-2 temporary classification:
“The consular officer must assess if the applicant: (1) has a resident in a foreign country, which they do not intend to abandon; (2) intend to enter the US for a period of specifically limited duration; and (3) seeks admission for the sole purpose of engaging in legitimate activities relating to business or pleasure.”
Upholding these requirements, counsel provided affidavits of our client and his family explaining the past overstay for treatment with no intention of violating US immigration laws—other than his prior overstay for intensive medical aid, our client has no other criminal convictions.
In addition, counsel established that our client had no intention to become a US permanent resident by demonstrating his residence and sole-employment in Canada, and showing that our client never attempted to work during his previous stay within the US. Attorney Herman also provided evidence that our client has sufficient funds and resources to subsidize his medical bills and temporary stay, therefore he will not become subject to the reliance on US welfare.
Lastly, Attorney Herman contacted congressional offices in Utah in order to obtain official good moral references and documentation from the medical clinic stating our client’s need for treatment is critical.
By meeting these requirements, our client was approved for B-2 status. Not only was Attorney Herman able to have the USCIS waive the inadmissibility factor due to the inadvertent overstay of visa, but our client was able to continue receiving medical aid from a creditable US medical clinic and potentially save his life.
Many B-1 and B-2 nonimmigrant visa holders may wish to change their status to F-1 student status. Holders of other nonimmigrant visas, such as J-2 exchange visitors, H-1B nonimmigrant visa holders (and spouses – H4 visas) may also want to switch. The desire to change has become more prevalent due to the COVID-19 healthcare crisis.
B-1 visas are temporary business visitor visas which, according to the USCIS, give the B-1 visa holder the right to participate in “business activities of a commercial or professional nature in the United States, including.” Examples of why people seek a B-1 visa are:
B-2 visas are used by foreigners who just want to travel. They can also be used for medical treatments and for some education reasons, according to Visa Guide World. Examples of why people seek a B-2 visa include:
There is no current cap on the number of B-2 visas that can be issued.
As hard as it can be to obtain US approval to enter the United States, there are challenges in returning to foreign countries during the pandemic. Some countries have denied reentry from America. Many B-1 and B-2 visa holders are concerned that long flights or long navigations may expose them to the disease.
There are three types of F visas:
F-1 students may apply at the schools of study through Form I-20 – to obtain an F-1 visa
According to the USCIS, people who hold a B-1 or B-2 visa cannot enroll in school unless they first acquire F-1 status. F-1 status is for academic students. M-2 status is for vocational students. Holders of other visas may be able to enroll in course of a study, depending on the type of visa. For example, holders of E status visas can enroll in school – provided the enrollment doesn’t interfere with the ability to keep their E status.
If you hold a visa that does not permit you to enroll in a class and you enroll in class anyway – your visa status will be in jeopardy. These visas holders will not be able to extend their status. Nor will they be able to change their status to F-1 or F-2 status.
The United States Citizenship and Immigration Services (USCIS) agency has specific requirements for changing your nonimmigrant status.:
You should review your change request with experienced immigration and non-immigration lawyer who:
If you are seeking a change in status to F or M visa status, don’t assume the request has been approved. Approval requires the following steps:
According to the Student Life International Center at the University of Michigan, you also need to include in your application:
Make a full copy of your entire application and supporting documents.
Don’t enroll in a course of study until your authorization is clear based on your current visa status or your approval of F or M student status.
You must keep a valid nonimmigrant status – while your Form I-539 request is pending. Enrollment in class or course of study can make your current nonimmigrant status (such as B-1 or B-2) invalid.
The timing for making the switch and enrolling in a class is very complex. Work with an experienced immigration lawyer who can guide you through the change in the status process, the timelines, and answer all your questions.
If you are an M-1 student, you can’t change to an F status while you are in the United States.”
Applicants for an F or M student status from a B-1 or B-2 status often have difficulty obtaining the approval to switch because of a unique requirement. The USCIS can approve the switch – up to 30 days before the course of study begins. This 30-day rule is based on 8 CFR § 214.2(f)(5)(i), which provides that “[a]n F-1 student may be admitted for a period up to 30 days before the indicated report date or program start date listed on Form I-20.”
If, according to the USCIS, “your current nonimmigrant status will expire more than 30 days before your F-1 or M-1 program start date and you wish to remain in the United States until your start date – you must find a way to obtain status all the way up to the date that is 30 days before your program start date (“bridge the gap”).
Bridging the gap involves filing a Form I-539 so you can request an extension of your current nonimmigrant visa (such as the B-1 or B-2 visas) in addition to the other Form I-539 application to change to student status. If you don’t file the extension request, your Form I-539 request to change to F-1 or M-1 status will be denied.
The bridge requests are complicated because it can take a while for the extension to be approved. You may need to file multiple extension requests.
According to the Maryland State Bar Association, due to the lengthy processing times for the separate Form I-539 requests, “your F-1 or M-1 program start date may be deferred to the following academic term or semester because USCIS did not make a decision on your Form I-539 change of status application before your originally intended F-1 or M-1 program start date.” This means you’ll need to obtain extensions – “up to the date which is 30 days before your new program start date.” You’ll need to pay separate filing fees for each Form I-539 request.
There’s a major complication though in seeking the extension of your B-1/B-2 visas so you can seek the change in status. One you seek to change your status to F-1 (through Form I-539) – if the application isn’t approved within 60 days from the requested start date in SEVIS – it will be canceled unless – the Designated School Official (DSO) manually defers the date of admission to either:
According to the Maryland State Bar Association, “on April 5, 2017, USCIS issued a new policy requiring that the applicants in B-2 status extend their status to cover any “gap” between the expiration of their previous B-2 status and the program start date.” “On February 6, 2018, USCIS revised its instructions to include applications filed by applicants in all other initial nonimmigrant statuses.”
USCIS applicants need to find a way to bridge the gap from the end of their current visa status up to 30 days before the “deferred” program start date.
Generally, B-2 applicants can file for an extension of their status through a second I-539 Form request. The extension request can only be for up to six months. Given that the F-1 request may take up to a year or more, several B-2 extension requests may need to be made – in order to fully bridge the gap. Essentially, USCIS is now making it as difficult as possible to request a change of nonimmigrant status to F-1.
Yes. According to the USCIS:
You can leave the US and then apply for an F-1 nonimmigrant visa through a US embassy or consulate. You’ll need to:
Call Herman Legal Group at +1-216-696-6170 or complete our contact form to speak with us about helping you prepare and file your I-20 and I-539 change to F-1 nonimmigrant visa status.
According to the Foreign Affairs Manual provided by the US State Department, “Visitor visas are nonimmigrant visas for persons who want to enter the United States temporarily for business (B-1), or for pleasure (B-2), or a combination of both purposes (B-1/B-2).”
The factors that are considered in determining whether someone qualifies for temporary visitor classification are whether the applicant:
Applicants who fail to meet one or more of the above criteria must be refused a B1 or B2 visa (or combination visa) based on section 214(b) of the Immigration and Nationality Act (INA).
These directives are for the USCIS officer. Experienced immigration lawyers can also explain what these directives mean.
“An alien proceeding to the United States to marry a U.S. citizen petitioner within 90 days of admission is classifiable as a K-1 nonimmigrant under INA 101(a)(15)(K). (See 22 CFR 41.81.) The fiancé(e) of a U.S. citizen or lawful permanent resident (LPR) may, however, be classified as a B-2 visitor if you are satisfied that the fiancé(e) intends to return to a residence abroad soon after the marriage.
A B-2 visa may also be issued to an alien coming to the United States:
“Fiancé(e)s who establish a residence abroad to which they intend to return, and who are otherwise qualified to receive visas, are eligible for B-2 visas if the purpose of the visit is to marry a nonimmigrant alien in the United States in a valid nonimmigrant F, H, J, L M, O, P, or Q status.”
“You should advise the fiancé(e) to apply for a change in nonimmigrant status to that of the derivative of the alien spouse soon after the marriage to the nearest office of Department of Homeland Security (DHS). B status is not appropriate if the fiancé(e) intends to remain permanently in the United States after admission, even if he or she would seek to do so by filing an adjustment or change of status application.
“A spouse married by proxy to an alien in the United States in a nonimmigrant status may be issued a B-2 visitor visa in order to join the spouse already in the United States. Upon arrival in the United States, the joining spouse must apply to the DHS for permission to change to the appropriate derivative nonimmigrant status after consummation of the marriage.”
There are additional guidelines for the spouse or child of a foreign applicant. These guidelines apply to adopted alien children too.
B2 status may also be available for:
Call Herman Legal Group at +1-216-696-6170 or complete our contact form to learn more about B-1 and B-2 extensions and change requests.
According to Path2usa, B1 and B2 visa holders can extend their stay if:
You’ll need to:
Be sure to read the extension checklist and to follow the sample cover letter that the USCIS provides.
The USCIC recommends that you request an extension at least 45 days before your visa expiration date ends. Generally, USCIS must receive your completed application and fees by the day your authorized stay ends.
The USCIS will send you a receipt with a 13 digit case number. “The approximate processing time will be indicated on the receipt.” You may be given a biometrics appointment so you and anyone else on the application can be fingerprinted and photographed
If you file your extension request on time, you may be permitted to stay in the US for up to an additional 240 days depending on the reasons behind your request and other factors.
You can check the status of your request online through the receipt case number.
If the visa extension is approved, you will be given a replacement I-94 with the new expiration/departure date. You should make copies of this I-94 so you’ll have them for subsequent trips to the United States.
If the visa extension request is denied, you’ll receive written notice of the denial. You will need to leave the US immediately.
Be sure your travel medical insurance is current and covers the extended stay.
Generally, you should be prepared to leave so you’re ready if the visa extension is denied. If the extension request is granted, you can follow through with your alternate plans.
“B1 and B2 visas are usually issued for a term of 10 years. Each visit may last up to six months, although some categories of visitors may apply to extend their visit for an additional 6 months. During your visit to the U.S., you may visit Canada, Mexico, or the Caribbean islands (not Cuba)for up to 30 days and re-enter the U.S. as long as you re-enter within the period noted on Form I – 94 which you received when you first entered.”
“If USICS receive your application before your status expires (or, in exceptional cases, we excuse filing after your status expires due to circumstances beyond your control), and if you have not violated the terms of your status and meet the basic eligibility requirements, then you may continue your previously approved activities in the U.S.( including previously authorized work, for a period of up to 240 days), until we make a decision on your application or until the reason for your requested extension has been accomplished- whichever comes first.”
“If you leave the US before a decision is made on your application to extend and you plan to return to the U.S. in the future, please keep a copy of your application plus the receipt notice to show to the Immigration Inspector on your return travel to the U.S. Otherwise, you may be denied entry for overstaying on your last visit.”
Call Herman Legal Group at +1-216-696-617 or complete our contact form for answers to all your B-1 and B-2 extension requests and change of status requests.
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