AVOIDING THE B-1/B-2 EXTENSION TRAP

By Attorneys Robert L. Reeves

B-1/B-2 visas are the most common nonimmigrant visas used for temporary entry into the United States. B-1 visas are typically used for business-related visits while B-2 visas are used for pleasure-related visits. With few exceptions, those who enter the U.S. must be in possession of a visa granted by a U.S. consulate abroad.

A visa merely permits one to apply for entry at a U.S. port of entry; it does not guarantee entrance. Immigration officials at the ports of entry determine whether a foreign national can enter the U.S. on the visa, and will set a definite period of time in which that person is authorized to remain in the U.S. (usually six months for those visiting for pleasure and 30-60 days for business visitors). The date by which one must depart from the U.S. is stamped on a document known as an “I-94 card”. The time restriction applies even to foreign nationals who possess multiple-entry visas. Under the Immigration and Nationality Act (INA), visas are automatically voided when the foreign national remains in the U.S. beyond their I-94 departure date.

For nonimmigrants who wish to remain beyond the period of time authorized to them, extensions must be filed within the time period authorized on the I-94 card with the U.S. Citizenship and Immigration Services (USCIS). However, foreign nationals should be advised that the USCIS rarely grants requests to extend a tourist visa without a very good reason. Because the time required to adjudicate an extension requests can take three months or more, applicants often do not receive a decision prior to the date on which they are required to depart.

Serious immigration consequences arise when applicants file for extensions after their I-94 departure date, as well as when applicants timely apply for extensions, but remain beyond their I-94 departure date. If the extension request is denied, the applicant is immediately determined to be out of status and the B and or B-2 visa is automatically cancelled under INA Section 222(g). Even if the applicant departs from the U.S. immediately upon receipt of the extension denial, he or she has already been out of status and this cancels their visa and may prevent future entries into the U.S.

If such an applicant attempts to return to the U.S. in the future with the same B-1 or B-2 visa, due to their prior period of unauthorized stay (even one day), the applicant will likely be refused entry unless they can present evidence of extenuating circumstances that prevented an earlier departure during their last trip to the U.S. In addition, many U.S. consulates will refuse to grant future visas on the ground that the foreign national overstayed their last visit to the U.S.

Most importantly, if an extension request is denied and the applicant remains in the U.S. beyond the denial date, unlawful presence will begin to accrue. Accrual of more than 180 days of unlawful presence will preclude the foreign national from reentering the U.S. for three years. One year or more of unlawful presence will bar reentry for ten years. The law does afford a 120-day grace period regarding the accrual of unlawful presence where an applicant timely filed an extension request; that is, unlawful presence will not begin to accrue until the extension request is denied, or until it has been pending for 121 days, whichever occurs first. This should not be confused with failure to maintain nonimmigrant status, i.e., staying beyond the authorized period of stay stamped on the I-94 which will result in automatic cancellation of a multiple entry visa.

Because most extension requests for tourist visas will be denied, one should not apply unless a very good reason exists. Examples of qualifying reasons for extensions are family or personal emergencies, urgent medical reasons, unexpected business opportunities, seminars or conferences. Extension requests should always include evidence to show that the applicant has sufficient funds to sustain himself or herself while in the U.S. Extension requests based on medical reasons must include proof of a medical condition, including current treatment, the proposed length of the treatment, and how the treatment will be paid for. If an applicant does not have a good reason for an extension, the request will almost certainly be denied. Timely departure will ensure that their B visa remains valid for future use.