Overusing your visitor’s visa could spell trouble

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.