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B-1 Visa Extension Application: Issues to Consider Before Filing

Shaun, an Australian national, came to the U.S. on B-1 visa two months ago. He was initially admitted for four months and he now has two months remaining on his I-94 card. After arriving in the U.S., Shaun and his foreign employer realized that the meetings Shaun came to the U.S. to attend will not be completed in the four month period granted to him and they may need at least another four months more to conclude them. They were unsure whether to seek an extension of stay or send him back to Australia and bring him back later. Their friends often gave them conflicting opinions, which made them more confused, leading Shaun to remark, “to file, or not to file – that is the question.”

B-1 business visitors who see a need to extend their stay in the U.S. beyond their initial period of admission often face this dilemma. Conflicting opinions on the standard of scrutiny involved with an extension of status, the impact of a denial on the validity of the visa and future admissions, etc. add to the confusion. This article aims to shed light on some basic and important things to consider when making the crucial decision about whether or not to file or when to file for a B-1 visa extension.

B-1 Visa Admission and Extension: An Introduction

B-1 Visa Admission: Regulations provide that a B-1 visa holder may be admitted initially into the U.S. for a period of up to one (1) year. In practice however, B-1 visa holders are admitted initially only for the period necessary to conduct their business, and are normally not granted a period of stay longer than six (6) months.

B-1 Visa Extension: Regulations also provide that a B-1 visa holder may be granted extensions of temporary stay in increments of not more than six months each. To seek an extension of stay in B-1 classification, Form I-539, Application to Extend/Change Nonimmigrant Status must be submitted to USCIS before the end of the stay given in the I-94.

It is important to note that that the grant of an extension of stay is highly discretionary and it is not automatic. USCIS will consider all the circumstances surrounding the applicant’s situation, including current status, the reasons for extension and ties to the home country in deciding whether or not to grant the extension of status. If USCIS decides that the circumstances indicate that an extension is not warranted, an extension will be denied. If an extension is granted, USCIS will also decide how long to extend the stay and will only grant up to the time that was requested on the extension application.

Things To Consider When Filing For A B-1 Visa Extension:

The application for the extension of stay must be filed before the current authorized stay expires. USCIS recommends that the extension application be filed at 45 days before the current stay expires.
If the application is filed with USCIS after the expiration of status and/or there has been an another violation of the terms of B-1 status (such as working without authorization), then the application for extension of status will be denied.
There are limited circumstances, beyond the control of the applicant, where filing for an extension of status after the period of stay has expired will be excused. The applicant must demonstrate that:
- the delay was due to extraordinary circumstances beyond the applicant’s control;
- the length of the delay was reasonable;
- there have been no other violations of status;
- the applicant is a still a bona fide nonimmigrant; and
- the applicant is not in removal proceedings.
If the B-1 extension application is filed before the I-94 expires, there have been no violations of the terms of the B-1 status and the applicant has met the basic eligibility requirements, then the applicant can continue previously approved activities in the United States for a maximum period of 240 days, or until the first of the following occurs:
- a decision is made on the application; or
- the reason for the requested extension has been accomplished.
  
  NOTE: If the applicant remains in the U.S. beyond the time requested in the B-1 visa extension application (even if the extension application is still pending), he/she will be considered “out of status” unless there are other applications pending that allow the applicant to remain in the U.S.
The normal processing time for B-1 extension application is generally about 2 to 3 months. However, processing times may vary. Check processing times before deciding on when to file the extension of status application.
The purpose for the extension of status should be justified and the application should not be frivolous. There should be a very good reason for the extension of status application. Examples of qualifying reasons for extensions are family or personal emergencies, medical treatment, unexpected business meetings or seminars, etc. A written must be submitted with the extension application which explain in detail:
- the reasons for the request;
- why the extended stay will be temporary, including what arrangement have been made to depart the U.S.; and
- any effect the extended stay may have on foreign employment or residency.
Evidence of sufficient funds or resources to cover living expenses should be included with the extension application.

Impact Of Denial Of Extension Application On Validity Of B-1 Visa

Denial of the extension of status request does not invalidate the I-94 card if it is still valid and there is still time remaining in the current term of stay. In such cases, the I-94 still controls and departure must take place before it expires.
If the application for extension is denied after the previously approved stay has expired (even if the extension application was filed on time), the applicant will be considered “out of status” as of the date the original period of stay expired. The applicant should depart the United States immediately so as to avoid accumulating excessive unlawful stay and/or presence. Also, any nonimmigrant visa in the passport granted in connection with the classification becomes void. Once the visa is void, a new visa application must be submitted at a U.S. consulate in the home country.
The period of time between the expiration of the I-94 and the date of the denial of the timely filed extension of status application is a period of stay authorized by the Attorney General. If you have timely filed an extension application, you have to leave no later than the date of the denial decision, in order for your visa not to be canceled.
Departure from the U.S. while the properly filed non-frivolous extension of status application is pending is considered abandonment of the application. The period of time until the departure is considered a period of stay authorized by the Attorney General. It is important to keep a copy of the extension application and more importantly, the I-797 Notice of Action, Receipt Notice as evidence of the extension of status filing. This is especially important upon a subsequent trip to the U.S. or when applying for another visa as the receipt notice will serve as proof that the applicant did not overstay on that particular visit to the U.S.
If the B-1 visa is cancelled, a new visa will only be granted if the applicant can satisfactorily explain any period of overstay and provide ample evidence of non-immigrant intent. A waiver may be required if any period of overstay exceeded 180 days, particularly in cases involving a Motion to Reopen or Appeal.

Circumstances Not Advisable For Seeking a B-1 Visa Extension

Before deciding to apply for a B-1 visa extension, there should be a bona fide reason for doing so. Here are some reasons not to extend the B-1 business visitor visa:

Getting Married: Getting married in the U.S. to a U.S. citizen is not a bona fide reason to extend business visitor visa status. Appling for the immigrant visa is preferable to extending the B-1 visa. Even if there are no plans to actually live in U.S., citing a future marriage ceremony to seek an extension may be seen as an excuse to extend one’s stay and is usually not granted.
Enrolling in School: Consider obtaining an F-1 visa or submit an application for Change of Status to F-1 when enrolling in a full time educational program. B-1 business visitors are not authorized to enroll in full-time study. Furthermore, the intent of a B-1 business visitor to come to the U.S. should not be to enroll in full-time study in the U.S.
Taking Up Employment: The B-1 visa/status allows individuals to engage in certain limited business activities in the U.S. The B-1 visa does not allow for productive employment in the U.S., including salaried work for a employer and services for hire on an independent basis. If an employment opportunity arises during the B-1 visit, consider a change of status to the appropriate work visa, if eligible.

Conclusion

As seen above, the decision to file for a B-1 visa extension and when to file is best taken based on the nature and purpose for which the extension is sought as well as the status and validity period of the controlling I-94. Unplanned extension applications have the possibility of resulting in a determination of unlawful presence and cancellation of the B-1 visa as well as other serious repercussions. An extension of stay denial cannot be appealed (motion to reopen can be filed). Considering the adverse impacts a denial could have on future requests for admission into the U.S., it is advisable that an immigration attorney be consulted once the need for an extension of stay is identified.

Keeping in view the array of things to be considered before filing for an extension, Shaun and his employer decided to consult an experienced immigration attorney to explore all suitable options that may be available to them in their current situation and take an informed decision.

If you have any questions about what steps you should take in your particular situation, consult a VisaPro immigration attorney. We will be happy to guide you through the process.

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Electronic System for Travel Authorization (ESTA): A Must For Visa Waiver Travelers

ESTA – another set of initials in an already acronym heavy immigration law. ESTA is the Electronic System for Travel Authorization. The ESTA (Electronic System for Travel Authorization) allows the US Department of Homeland Security (DHS) to pre-screen foreign national visitors traveling to the US under the Visa Waiver Program (VWP). This application system that is now a part of the Visa Waiver Program has made visiting the United States an easy and simple process for the millions of visitors with a machine readable passport (e-passport). Because of the increased security consciousness and related regulations, VWP visitors must now apply for a Travel Authorization in advance of their trip. The Travel Authorization application process is overseen and operated by the DHS.

Purpose of Electronic System for Travel Authorization (ESTA):

The Electronic System for Travel Authorization (ESTA) was developed to allow DHS to pre-screen all travelers who intend to come to the US on the Visa Waiver Program (VWP) before they leave their respective countries. Any travelers bound for the US are urged to apply for a Travel Authorization at least 72 hours prior to departure.

The ESTA Travel Authorization is not a visa. Thus, an approved Travel Authorization does not guarantee entry to the US, but it is a prerequisite for travel to the US by air or sea carrier. ESTA only pre-screens Visa Waiver Travelers in order to allow them to travel to the United States. Additionally ESTA is not an application for admission into the United States. But if you are not approved for a Travel Authorization, you must apply for a B-1/B-2 visitor visa. Moreover, foreign nationals from non-visa waiver countries should not even attempt to apply for a Travel Authorization.

More About the Electronic System for Travel Authorization (ESTA):

On January 12, 2009 a Travel Authorization became mandatory for all travelers under Visa Waiver Program (VWP) that intend to enter the United States by air or sea. Without an approved Travel Authorization, foreign nationals may be denied boarding, experience delayed processing at the port of entry, or even be denied entry at the US border.

An approved Travel Authorization is only required for the purpose of traveling to the US for travelers on the Visa Waiver Program (VWP). However, foreign nationals from VWP countries transiting through the United States must also possess an approved ESTA application number.

While the ESTA is an additional step in coming to the US, it has not become a major bar for most applicants. According to DHS records over 96% of all ESTA applications are approved.

Validity of Authorization:Applying for a Travel Authorization is not related to any visa process. It is a separate requirement that applies only to foreign nationals traveling to the US under the Visa Waiver Program. Once issued the Travel Authorization is valid for 2 years unless the foreign national’s passport expires earlier.

Requirements: The USA-PATRIOT Act requires that all the travelers under Visa Waiver Program (VWP) have a machine-readable passport. To apply for Travel Authorization through ESTA you must have a machine readable passport with a digital photograph printed on the page that contains your biographic data. Alternatively, if you have a passport from one of the 8 new visa waiver countries, the passport needs an integrated chip containing the information from the data page. If you are from a Visa Waiver Country but hold an old passport (non-machine readable), you must now apply for a visitor visa in advance.

ESTA and Form I-94W: VWP travelers must still complete Form I-94W (the green form). However, while a Travel Authorization must be completed in advance, Form I-94W is normally provided to you by the airline. If not, Form I-94W is available at the US port of entry. Your ESTA information should match what you write on Form I-94W.

Many airline carriers that fly into the US are working on implementing an ESTA system which eliminates the need to complete the Form I-94W. However, this is a certification process which is time-consuming. While some carriers may already have an ESTA system implemented, others will not. Therefore, follow the instructions from the airline carrier and complete Form I-94W if necessary. After January 12, 2009 a Travel Authorization must be obtained in advance regardless for all Visa Waiver travelers.

Conclusion:

All persons traveling to the US under the Visa Waiver Program must now apply for Travel Authorization under the ESTA (Electronic System for Travel Authorization). The ESTA is occasionally mistaken by some travelers for being the same as a US visitor visa.

The ESTA, or Travel Authorization, is only for Visa Waiver travelers and is only related to "travel authorization." A US visitor visa is still necessary for any other visitor to come to the US who does not qualify for VWP. ESTA is a simple online application system where Visa Waiver travelers can apply for a travel authorization. While the Travel Authorization is a requirement now for Visa Waiver participants, an approved authorization does not guaranty entry at the US border.

The ESTA process has enhanced the security of the VWP and has allowed the State Department and DHS to expand membership in the program, which, in turn, enables members from Visa Waiver Program countries to easily travel to the US for business or pleasure for 90 days or less without obtaining a visa.

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The information in this article is not intended to be legal advice. If you have questions specific to your case, we suggest that you consult with the experienced immigration attorneys at http://consultattorney.visapro.com

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Does Your Passport Qualify for Travel Under the Visa Waiver Program (VWP)?

Visa free travelers, including children, entering the United States under the Visa Waiver Program (VWP) require individual machine-readable passports (MRP). This requirement has been in place since October 26, 2004.

How do I know if I have a machine-readable passport?

Machine-readable passports allow data in the passport to be scanned automatically by a machine. There are two lines of letters, numbers and ´>´s printed at the bottom of the personal information page, that is, the page with photograph and personal details. (circled in red in the image of a U.S. machine-readable passport shown below) If you are in any doubt as to whether or not your passport is machine-readable, you should check with the passport issuing authority of your country.

An example of a machine-readable passport

The text circled in red indicates the two lines of machine-readable data.

Click the image for a larger view.

I know people who have traveled under the VWP without a machine-readable passport after October 26, 2004.

For a limited period that started on October 26, 2004, immigration inspectors at U.S. ports of entry had the authority to grant an exemption of the machine-readable passport requirement to nationals of 22 of the 27 VWP countries. This ends on June 25, 2005. From June 26, 2005, all VWP travelers must be in possession of individual machine readable passports. If not, the traveler will be required to either apply for a U.S. visa, or obtain a new passport which is machine-readable.

Note: The passport exemption does not apply to passport holders from Andorra, Brunei, Liechtenstein, Slovenia and Belgium.

I do not have a machine readable passport.

If you do not have a machine readable passport you will either be required to apply for a U.S. visa, or if you wish to continue traveling visa free under the VWP, obtain a new passport which is machine readable.

I have recently read about additional passport requirements which will come into effect on October 26, 2005.

The additional passport requirements will affect only those VWP travelers whose passports are issued on or after October 26, 2005. If your passport is issued before this date, you need only be concerned that it is machine-readable.

What are these additional requirements?

Passports issued on or after October 26, 2005, must include a biometric identifier based on applicable standards established by the International Civil Aviation Organization (ICAO). The Department of Homeland Security has announced that from October 26, 2005, a digital photograph of the passport holder's face printed on the data page of the passport will be the acceptable standard. Passports issued on or after October 26, 2006, must also include an integrated circuit chip capable of storing the biographic information from the data page, a digitized photograph and other biometric information.

How do I know if I have a biometric passport?

You need only be concerned about the biometric passport requirement if your passport will be issued on or after October 26, 2005, and you intend traveling visa free under the Visa Waiver Program.

Passports issued on after October 26, 2005, must contain a digital photograph of the passport holder's face on the data page of the passport. Many VWP countries already produce such passports. If you are in any doubt as to whether or not your passport contains a digital photograph, please check with the passport issuing authority of your country.

Passports issued on or after October 26, 2006, must also contain an integrated circuit chip capable of storing the biographic information from the data page, a digitized photograph and other biometric information.

What is an E-passport or Smart passport?

It is a biometric passport which is capable of storing the biographic information from the data page, a digitized photograph and other biometric information.

Avoid confusion at US Port of Entry

Approximately 28 million nonimmigrants enter or leave the U.S. annually to conduct business, study, visit family, or tour the country. Legitimate visitors are always welcome and the U.S. government is committed to facilitating their travel. However, a critical need for tighter security requires strict entry and exit procedures at the Port of Entry.

Careful planning and preparation by visitors can ensure that the delay based on these procedures is minimal.

If you are a nonimmigrant visitor, here are some things you should do:

Before leaving your country, confirm that your passport and visa are still valid for entry into the U.S. The passport should be valid for at least six months beyond the date of your expected stay. The visa must be valid at the time you apply for admission.
Check to see that your visa accurately reflects your correct visa classification. If you do not have the correct visa for the stated purpose of your trip to the U.S. you will be denied entry and sent back to the origination point of your flight.
When you travel, you should carry some specific documents on you. Do not check them in your baggage. If your baggage is lost or delayed, you will not be able to show the documents to the immigration officer and, as a result, may not be able to enter the U.S.

Primary Inspection at Port of Entry

Upon arrival at the Port of Entry, Immigration Inspectors conduct initial examinations of all arriving visitors at ‘primary inspection’. The primary inspection is the only inspection needed for those who are ‘clearly admissible’. Although the inspectors on average have only one minute per person, each person is checked through a centralized computer system. The vast majority of individuals are ‘clearly admissible’ and are coming to the U.S. for legitimate purposes with legitimate documents.

Secondary Inspection at Port of Entry

If there appear to be discrepancies in documents presented or answers given, or if there are any other problems, questions, or suspicions that cannot be resolved within the exceedingly brief period allowed for primary inspection, you must be referred to a ‘secondary inspection’ procedure, where a more thorough inquiry may be conducted. Secondary inspection allows inspectors to conduct additional research in order to verify information.

At secondary inspection, you are not permitted representation or the right to consult with an attorney unless you have become the focus of a criminal investigation and have been taken into custody for that purpose. You do not have a specific right to telephone or contact friends, relatives, or other persons who might assist you. Historically, the great majority of these secondary inspections result in the admission of the person being inspected.

US-VISIT Program

On January 5, 2004, US-VISIT, a comprehensive entry-exit registration system was implemented at all international airports throughout the U.S. Nonimmigrant visitors holding visas will be participating in the program which involves obtaining a scan of two index fingerprints and a digital photograph. US-VISIT is part of a continuum of security measures that begins overseas, when a person applies for a visa to travel to the U.S, and continues on through entry and exit at U.S. air and seaports and, eventually, at land border crossings. The US-VISIT program is meant to:

Enhance the security of U.S. citizens and visitors
Expedite legitimate travel and trade
Ensure the integrity of the immigration system
Safeguard the personal privacy of nonimmigrant visitors

Exit Procedures

Under the US-VISIT program, a departure confirmation program using automated kiosks is being tested at Baltimore-Washington International Airport and at selected Miami Seaport cruise line terminals. Currently, if you leave from either of these ports, you are required to confirm your departure at the kiosk. You will see automated, self-service kiosks where you can ‘check out’ by scanning your visa or passport and repeating the simple inkless fingerprinting process. These are compared to the prints and information taken at the time of your entry to ensure that the person leaving is the person who entered the U.S.

By combining these entry and exit processes, and by securely storing the travel records, the U.S. Government has been working to ensure the integrity of the borders and the privacy and well-being of citizens and visitors.

Conclusion

At VisaPro, we appreciate the efforts being taken by the U.S. government to ensure the privacy of citizens and visitors. We are constantly keeping track of all the developments related to entry-exit procedures and will continue to update you on the latest happenings.

Contact VisaPro if you have any questions regarding visas, or need help in filing with the USCIS or Consulates. Our experienced attorneys will be happy to assist you.

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