by Attorney Dwayne Braithwaite
Generally, every applicant for a non-immigrant visa must prove the following:
- You are a bona fide non-immigrant (temporarily going to the US);
- You are entitled to the visa being sought; and
- You are not inadmissible to the US (if you were, a waiver could be granted in some cases).
There is a presumption in law that every non-immigrant visa applicant, including B2, is an intended immigrant. Some immigration attorneys and advocates believe this may be an unwarranted presumption. Nonetheless, it is the starting point as the Foreign Affairs Manual(“FAM”) delineates this as one of the most significant parts of the issuance process.
The B2 visa category is defined under Immigration and Nationality Act (“INA”) 101(a)(15)(B) as “an alien [applicant] (other than one coming for the purpose of study or of performing skilled or unskilled labor or as a representative of foreign press, radio, film, or other foreign information media coming to engage in such vocation) having a residence in a foreign country which he has no intention of abandoning and who is visiting the United States … temporarily for pleasure.”
While tourists make up the vast majority of those persons seeking B2 visas, the classes of foreign nationals falling within the “visitor for pleasure” category is somewhat broader than that conception. INA 101(a)(15)(B) defines pleasure for the purpose of visa issuance of a B2 visa as “legitimate activities of a recreational character, including tourism, amusement, visits with friends or relatives, rest, medical treatment, and activities of a fraternal, social, or service nature.” Further, the Department of State classifies visitors for pleasure as for those entering the US for:
(b) Social visits to relatives and friends;
(c) Health or medical treatment;
(d) Participation in conventions, conferences, or convocations of fraternal, service, or social organizations;
(e) Participation in amateur musical, sports, and similar events without remuneration;
(f) Dependents of U.S. Armed Forces members temporarily assigned to U.S. duty; and
(g) Tourism combined with a short course of study.
9 FAM 402.2-2(B) outlines several factors used by consular officers to determine an applicant’s entitlement to visitor clarification. These include assessing whether the applicant:
(a) Has a residence in a foreign country [Guyana], which they do not intend to abandon;
(b) Intends to enter the United States for a period of specifically limited duration; and
(c) Seeks admission for the sole purpose of engaging in legitimate activities relating to business or pleasure.
If the aforementioned requirements are met, then 22 CFR § 41.31 allows for the issuance of the visa so long as “adequate financial arrangements have been made to enable the alien [applicant] to carry out the purpose of the visit to and departure from the United States.”
However, if the applicant fails to meet one or more of the above criteria, the consular officer must refuse the applicant under section 214(b) of the INA (the infamous yellow slip).
I believe the hardest requirement for an applicant is the entire issue of abandonment of their residence. I have heard comments like “I told the officer that I’m leaving my children here, I can’t go to the US and not return”. Unfortunately, 9 FAM 402.2-2(B)(b) states “if you [consular officer] doubt an alien’s intent to return abroad, the alien cannot satisfy your doubts by offering to leave a child, spouse, or other dependent abroad.”
I hope this article has helped you understand what the consular officer is looking for as he or she reviews your B2 visa application.
Disclaimer: This view does not and is not intended to constitute legal advice.
About the Author:
Dwayne Braithwaite is a Guyanese born practicing US Immigration Attorney for more than 6 years in the State of Georgia.
He represents clients from all States since Immigration Law is Federal Law. He also represents immigrants and intended immigrants from Guyana, the wider Caribbean, Brazil, Africa, Asia, and Europe.
Mr. Braithwaite has also completed his Legal Education Certificate (LEC) through the Transitional Law Programme at the Hugh Wooding Law School (HWLS) and is opening an office in Georgetown, Guyana. www.tb-lawgroup.com