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300                                                             IMMIGRATION & NATIONALITY LAW HANDBOOK, 2007–08all for ali...
STUDIES IN CHAOS THEORY                                                                                        301was enga...
302                                                       IMMIGRATION & NATIONALITY LAW HANDBOOK, 2007–08however, may be c...
STUDIES IN CHAOS THEORY                                                                                       303change. A...
304                                                        IMMIGRATION & NATIONALITY LAW HANDBOOK, 2007–08mean that a misr...
STUDIES IN CHAOS THEORY                                                                                         305riod of...
306                                                        IMMIGRATION & NATIONALITY LAW HANDBOOK, 2007–08subsequent depar...
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Badia tavas - studies in chaos theory


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Chaos theory, a term used by scientists in a variety of disciplines, refers to the study of systems that appear to lack order but actually obey certain laws or rules. Chaotic behavior has been observed, for ex- ample, in laboratory settings in electrical circuits, lasers, and fluid dynamics.

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Badia tavas - studies in chaos theory

  1. 1. STUDIES IN CHAOS THEORY: GUIDING CLIENTS THROUGH APPROPRIATE USES OF THE TEMPORARY VISITOR VISA CATEGORIES by Susan K. Wehrer, M. Mercedes Badia-Tavas, and Judy J. Lee* INTRODUCTION probably a good place to start in explaining to their Chaos theory, a term used by scientists in a vari- clients the many diverse categories, persons, andety of disciplines, refers to the study of systems that situations eligible for the temporary B-1 (businessappear to lack order but actually obey certain laws or visitor) and B-2 (visitor for pleasure or tourist) visarules. Chaotic behavior has been observed, for ex- categories.ample, in laboratory settings in electrical circuits, Temporary visitors comprise the largest group oflasers, and fluid dynamics. nonimmigrants admitted to the United States each This phenomenon should resonate with immigra- year. According to the 2005 Yearbook of Immigra-tion lawyers. From their perspective, chaos theory is tion Statistics, visitors accounted for 28.5 million, or 89 percent, of the 32 million foreign nationals ad-* mitted to the United States in nonimmigrant status © 2007 by Susan Wehrer, M. Mercedes Badia-Tavas, and during fiscal year 2005. Yet the B-1 and B-2 classi-Judy J. Lee. All rights reserved. Reprinted with permission. fications (and their close cousins, the WB and WT Susan K. Wehrer is a partner with Paparelli & Partners classifications under the visa waiver program) re-LLP in Irvine, CA, where she practices in all areas of em-ployment-based and business-related immigration law. Ms. main two of the more chaotic areas in immigrationWehrer is the author or coauthor of several articles on busi- law.ness-related immigration topics and was named in the 2007 Given the sheer numbers of visitors, an immigra-edition of Best Lawyers in America. Prior to joining the firm, tion practitioner must understand the rules governingMs. Wehrer practiced labor and employment law, held theposition of editor of The Labor Letters, Inc. and served as this vast and varied category and choose the categoryadjunct professor of labor relations at Woodbury University. that best fits the client. This article will review theShe can be reached at developed law of the visitor categories, will consider M. Mercedes Badia-Tavas is principal of Badia-Tavas unusual or obscure uses for the business visitor andLaw Group, Ltd. located in Chicago ( tourist classification, and will address common issuesHer practice focuses on business immigration for clients faced by prospective visitors at the visa applicationvarying from Fortune 500 companies to small companies and and admission stages.entrepreneurs. She is a member of the AILA Chicago Chap-ter since 1994, where she currently serves as chair of theCBP Liaison Committee. She is also a member of the AILA IS TEMPORARY VISITOR STATUSNational Business Immigration Committee. She has partici- APPROPRIATE FOR YOUR CLIENT?pated in many AILA-sponsored panels devoted to employ- The Basicsment-based immigration issues. Her published works includeseveral articles in various volumes of AILA’s Immigration & An individual eligible for temporary visitor statusNationality Law Handbook and other publications. She is defined as:graduated from Tulane University Law School in 1993 and An alien (other than one coming for the purpose ofearned a Bachelor of Arts degree from Agnes Scott Collegein Atlanta in 1986. study or of performing skilled or unskilled labor or as a representative of foreign press, radio, film, or Judy J. Lee is a shareholder with Quan, Burdette and Perezin Houston ( She received her law degree other foreign information media coming to engagefrom the University of Houston Law Center in 1980 and is in such a vocation) having a residence in a foreigncertified in the area of immigration and nationality law by the country which he has no intention of abandoningTexas Board of Legal Specialization. Ms. Lee currently serves and who is visiting the United States temporarilyas chair of the liaison committee with the USCIS Texas Ser- for business or temporarily for pleasure.1vice Center and vice chair of the Texas Chapter. Ms. Lee is afrequent speaker on immigration topics. The Department of State (DOS) acknowledges The authors wish to thank Angelo A. Paparelli, whose that the visitor visa classification is used as a “catch-comments and suggestions were extremely helpful in thepreparation of this article. 1 Immigration and Nationality Act (INA) §101(a)(15)(B). 299
  2. 2. 300 IMMIGRATION & NATIONALITY LAW HANDBOOK, 2007–08all for aliens who do not fit in any other nonimmi- as an H-3 (trainee) nonimmigrant who is employedgrant classification but whose admissibility as non- abroad and will continue to be paid by his or her for-immigrants seem[s] within the general intent of eign employer may enter the United States as a B-1Congress in distinguishing between immigrants and visitor to undertake training (also known as “B-1 innonimmigrants.”2 lieu of H-3”).What Is Temporary? Temporary visitor status is generally not appro- Although temporary visitor visas are issued to priate for professional entertainers, unless the enter-those who visit the U.S. for a “temporary” period of tainer is traveling to the United States to participatetime, DOS has stated that extended stays can meet in a cultural program sponsored by the foreign coun-this temporary requirement as long as the stay is fi- try, an international competition, or is a musiciannite. The DOS Foreign Affairs Manual (FAM) utilizing facilities in the United States to make a re-phrases the principle in the following way: cording that will not be distributed in the United States. Similarly, artists not under contract to a U.S. The period of time projected for the visit must be employer and who do not intend to regularly sell consistent with the stated purpose of the trip. The their works in the United States may be eligible for applicant must establish, with reasonable cer- B-1 classification, as are photographers traveling to tainty, that departure from the United States will the United States to take photographs if they receive take place upon completion of the temporary no income from a U.S. source. visit. Although ‘temporary’ is not specifically de- fined by either statute or regulation, it generally Amateur entertainers, however, may be eligible signifies a limited period of stay. The fact that for B-2 classification to participate in a “social and/or the period of stay in a given case may exceed six charitable context or as a competitor in a talent show, months or a year is not in itself controlling, pro- contest or athletic event … even if the incidental ex- vided the consular officer is satisfied that the in- penses associated with the visit are reimbursed.”4 tended stay actually has a time limitation and is Business Visitors not indefinite in nature.3 The determination of whether proposed activitiesWhat Are Appropriate Activities? fall within the scope of temporary visitor classifica- The FAM also instructs that the classification of tion, particularly with respect to business visitors, canan alien applying for a visa should be based on the be challenging. A B-1 visitor may not perform “ordi-“principal purpose” of the visit. This means, for ex- nary labor for hire,” but may perform a function thatample, that a temporary visitor could legitimately is a “necessary incident to international trade.” Theseek admission to the United States for a tourist pur- term “business” includes “legitimate activities of apose and engage in incidental study during the visit. commercial or professional nature such as meetings, conferences, or consultations in the United States in In general, the B-1 classification is not appropriate connection with the conduct of international businessfor aliens entering the United States for the primary and commerce.”5purpose of study. There are other circumstances,however, in which an alien may enter the United However, a B-1 visitor may not “perform servicesStates in temporary visitor status for educational pur- for which a U.S. worker would have to be fired,”poses. For example, aliens who wish to attend a voca- “services [that are] inherently part of the U.S. labortional or recreational school may be classified as B-2 market,” or services “primarily benefiting the U.S.visitors for pleasure. Also, an alien who is classifiable entity as local work for hire.” In perhaps the best-known published decision on the topic, Matter of Hira, the Board of Immigration2 58 Fed. Reg. 40024, 40025 (proposed July 26, 1993), citing Appeals concluded, and the attorney general af-Senate Report No. 1515 accompanying the 1952 Act, which firmed, that a tailor measuring customers in thestates: United States for suits to be manufactured abroad The term “business” as used in the section includes not only intercourse of a commercial character but any other 4 legitimate activity of a temporary nature classified 9 FAM 41.31 N13.7. within the ordinary meaning of the word “business” but 5 Immigration and Naturalization Service (INS) Interim Rule, not classifiable as pleasure or labor. “Change of Status from B to F-1 or M-1,” 67 Fed. Reg.3 9 Foreign Affairs Manual (FAM) 41.30. 18061 (Apr. 12, 2002).
  3. 3. STUDIES IN CHAOS THEORY 301was engaged in a valid B-1 activity because it was certain requirements. In 2002, legacy Immigrationcommercial in nature, the foreign national had a and Naturalization Service (INS) issued proposedclear intent to maintain a foreign residence, accrual rules implementing the statutory provision allowingof profits took place abroad, the foreign national’s for honorarium payments. The rule defines an hono-stay was temporary (although the business activity rarium as “a gratuitous payment of money or anywas ongoing), and the foreign national’s salary came other thing of value to a person for the person’s par-from abroad. ticipation in a usual academic activity, for which no Examples of appropriate business activities for fee is legally required ….”7 Thus, an activity forvisitors include engaging in commercial transactions which a person may accept an honorarium under the(not involving employment in the United States); proposed rule does not constitute “employment.”negotiating contracts; consulting with business asso- Despite the general prohibition on remunerationciates; participating in litigation; taking part in sci- from a U.S. source, practitioners should be awareentific, educational, professional, or business con- that several specific categories of foreign nationalsventions, conferences, or seminars; or conducting may be paid during a B-1 stay in the United States.independent research. Also, a foreign national seek- Personal or Domestic Workersing investment in the United States who performs noproductive labor and does not actively participate in Personal or domestic employees of U.S. citizenthe management of the business is eligible for B-1 employers who have a permanent home abroad mayclassification. Foreign national directors of U.S. cor- travel temporarily to the United States in B-1 statusporations may “attend a meeting of the board or to and perform work for their employers in the Unitedperform other functions resulting from membership States. Likewise, personal or domestic employees ofon the board.” foreign nationals in B, E, F, H, I, J, L, M, O, P, or Q status are eligible for admission in B-1 status. Unlike An alien entering the United States “to install, other categories of business visitors, the “source ofservice, or repair commercial or industrial equip- payment to a B-1 personal or domestic employee orment or machinery purchased from a company out- the place where the payment is made or the locationside the United States or to train U.S. workers to of the bank is not relevant.” Given that these indi-perform such services”6 may, under certain circum- viduals will be performing work, personal or domes-stances, be classifiable as a B-1 visitor. Likewise, tic servants who qualify as B-1 visitors must applyalien commercial truck drivers may qualify for ad- for employment authorization.mission as B-1 visitors. Athletes and Sports-Related WorkersWill Your Client Receive Paymentfrom a U.S. Source? Professional athletes (such as golfers and auto rac- ers) “who receive no salary or payment other than Generally, a temporary visitor should receive no prize money for … participation in a tournament orremuneration from a U.S. source, although there are sporting event” are admissible in B-1 classification.several exceptions to this rule. A B-1 visitor may Additionally, members of foreign-based sports teamsreceive reimbursement for incidental expenses in traveling to the United States to compete with anotherconnection with the visit as long as the reimburse- sports team may be admissible in B-1 status. Like-ment “does not exceed the actual reasonable ex- wise, amateur hockey players may enter the Unitedpenses the alien will incur.” Also, a temporary visi- States in B-1 status for National Hockey Leaguetor may be paid indirectly through a U.S. source un- (NHL) tryouts pursuant to a memorandum of agree-der some circumstances. Moreover, visitors whose ment with the NHL, so long as the team will providetravel is funded by the U.S. government for partici- only for incidental expenses. Foreign nationals em-pation in programs that are not authorized exchange ployed by a foreign-based employer may travel to thevisitor programs may be issued B-1 visas (also United States in B-1 status to perform services as aknown as “B-1 in lieu of J-1”). jockey, sulky driver, trainer, or groomer. Likewise, a B-1 nonimmigrant may accept an Amateur athletes and entertainers traveling to thehonorarium and payment for incidental expenses United States to participate in athletic events or per-associated with “usual academic activities” that meet formances, for which they will not be compensated,6 7 9 FAM 41.31 N10.1. 67 Fed. Reg. 37727 (May 30, 2002).
  4. 4. 302 IMMIGRATION & NATIONALITY LAW HANDBOOK, 2007–08however, may be classifiable as B-2 visitors for Further illustrating the temporary visitor classifi-pleasure and may be reimbursed for incidental ex- cation’s role as a “catch-all,” the DOS has stated thatpenses associated with their visit. aliens who otherwise meet the requirements of B-2Certain Religious Activities classification, including an intent to return to their residence abroad at the conclusion of a temporary Ministers engaging in evangelical tours of the stay, may obtain tourist visas to travel to the UnitedUnited States and supported by offerings received at States to marry a lawful permanent resident or non-each evangelical meeting in the United States may immigrant fiancé(e), to naturalize, or to acquire citi-be classified as B-1 visitors. In contrast, in a more zenship (in the case of an adopted child). Also, thetraditional B-1 activity, foreign clergy exchanging spouse of a nonimmigrant married by proxy maypulpits with U.S. counterparts may be eligible for enter the United States in B-2 status provided afterB-1 classification as long as they will draw no salary arrival and consummation of the marriage, thefrom the U.S. church and will be reimbursed by the spouse applies for a change of status to the appropri-foreign church. Also, as long as no articles are sold ate derivative category.and no donations are solicited or received, B-1 visaclassification may be appropriate for members of Following the terrorist attacks of 9/11, there werereligious groups wishing to enter the United States attempts to rein in the temporary visitor category. Intemporarily to engage in missionary work. Foreign 2002, legacy INS issued proposed regulations tonational members of religious or nonprofit charitable shorten the standard authorized stay of B-1 and B-2organizations may travel to the United States as visitors and to limit the ability of temporary visitors tobusiness visitors to participate in a voluntary service change to student status without appropriate disclo-program and receive an allowance or other reim- sure upon admission. This proposed rule was neverbursement for expenses incidental to the volunteer’s implemented, and the temporary visitor regulationsstay, so long as the volunteer receives no other sal- continue to state that B-2 visitors should be admittedary or remuneration. for a minimum of six months. Also, although all for- eign nationals seeking admission to the United StatesVisitors for Pleasure/Tourists must honestly state the purpose for their request for The B-2 visitor classification is appropriate for admission, there is no regulatory requirement that B-2aliens entering the United States temporarily for ac- prospective students visiting U.S. campuses wheretivities related to pleasure “such as touring, family they have been admitted must state their intent tovisits, or for the purpose of receiving medical treat- study to an admitting officer and present any relatedment.”8 B-2 visitors also may travel to the United Form I-20s. At the same time, an interim rule, whichStates to participate in “conventions, conferences, or has since been implemented, was issued requiringconvocation of fraternal, social or service organiza- B-1 and B-2 nonimmigrant visitors to obtain an ap-tions.”9 proved change of status to an appropriate student visa Members of extended families and domestic part- classification before commencing school attendance.ners of certain “long-term” nonimmigrants may alsobe eligible for B-2 classification. The FAM provides ADVISING YOUR CLIENT ABOUT THE B-1that B-2 classification is appropriate for cohabitating AND B-2 VISA APPLICATION PROCESSpartners and other household members who may not A foreign citizen who wishes to enter the Unitedqualify for derivative status. The FAM advises that if States temporarily must first obtain a nonimmigrantsuch foreign nationals plan to remain in the United visa (NIV) from a U.S. consulate or embassyStates for more than six months, they should request abroad. A personal interview is required of almosta one-year period of stay from the Department of all visa applicants. Some NIV visa classifications,Homeland Security at the time of admission. There- such as H-1B (specialty worker) and L-1 (intracom-after, if further extensions are needed, they may ap- pany transferee), require issuance of a Form I-797ply in increments of six months for the duration of approval notice from U.S. Citizenship and Immigra-the long-term nonimmigrant’s stay. tion Services (USCIS) prior to submission of a visa application at a U.S. consulate. B-1 and B-2 visitor visa applications can be made directly with the con- sular post, however.8 INS Interim Rule, supra note 5.9 Consular policies and procedures can be confus- 9 FAM 41.31 N13.3. ing for the uninitiated, and are subject to frequent
  5. 5. STUDIES IN CHAOS THEORY 303change. Accordingly, it is important to ensure that cants may have to wait months for an appointment.clients receive up-to-date information on visa proc- Moreover, in some cases additional security checksessing procedures and wait times. may cause delay in visa issuance. Accordingly, cli-Visa Application Documents ents should initiate the process well ahead of planned travel, if possible. The list of documents that are generally requiredfor a temporary visitor visa application includes: Additionally, clients should be aware of the re- quirements of the temporary visitor category and the Valid passport (must be valid for at least types of activities permitted. Counsel and the client six months); need to be comfortable that the purpose of the client’s Completed Application for Nonimmigrant Visa, visit is consistent with temporary visitor classification. Form DS-156, using the electronic version found Moreover, clients must understand that the con- at; sular officer must be independently satisfied that Completed Application Form DS-157 (required each applicant meets all requirements for the tempo- for male applicants between the ages of 16 and rary visitor visa status. Providing the necessary 45; some posts may require it for all applicants); documentation does not guarantee visa issuance. One passport-type photograph (taken within the Consular officers typically consider the following last six months, two inches square, in color with factors when determining whether an applicant is a white background) affixed to the Form DS-156 eligible for a B-1 or B-2 visa. Specifically, the ap- application for each applicant; plicant must: Machine-Readable Visa (MRV) processing fee, Have a residence in a foreign country, which he payable at a local bank designated by the particu- or she does not intend to abandon; lar U.S. consulate; Intend to enter the United States for a period of Documentation evidencing ties to home country, specifically limited duration; and purpose of travel, temporary stay, and financial Seek admission for the sole purpose of engaging support may be required by the consulate. Clients in legitimate activities relating to business or should prepare the following as applicable: pleasure. – Proof of employment in home country, e.g., Clients should be instructed about the importance letter verifying current employment and pay- of providing accurate documentation and truthful roll stubs; responses on application documents and at the visa – Proof of family ties to home country, e.g., interview. Additionally, counsel should discuss with marriage certificate and birth certificate(s) the foreign national his or her plans for several for children; months after admission as a visitor, for the conse- quences to the client of providing false or inaccurate – Proof of ownership of property; information are severe. – Invitation letter from a U.S. company stating An alien who engages in fraud or willful misrep- the reason for the visit and that no U.S. salary resentation of a material fact in order to procure a will be paid (if applicable); visa or to obtain admission is inadmissible. The – Copy of round-trip plane ticket or airline FAM provides that a misrepresentation requires af- itinerary; firmative conduct rather than “information merely – Financial documentation evidencing ability to concealed by the alien’s silence. Silence or the fail- support the stay, e.g., bank account statements ure to volunteer information does not in itself consti- or Form I-134 Affidavit of Support signed by tute a misrepresentation for the purposes of INA a relative or friend in the United States, if §212(a)(6)(C)(i).”10 necessary. Significantly, consular officers are instructed thatPreparing the Client for the Visa Interview the fact that the foreign national’s behavior in the United States is different than statements made in Counsel should instruct clients regarding several the visa application process does not necessarilyimportant concerns prior to commencing the visaapplication process. Initially, clients should under-stand that wait times for visa appointments vary 10 9 FAM 40.63 N4.2.from post to post and that in some instances appli-
  6. 6. 304 IMMIGRATION & NATIONALITY LAW HANDBOOK, 2007–08mean that a misrepresentation has occurred. To de- REQUESTING ADMISSION AS Atermine whether a misrepresentation was made to TEMPORARY VISITORobtain a visa or admission to the United States, con- Period of Admissionsular officers are instructed to assess the applicant’sprior conduct based on the 30/60-day rule. If within Legacy INS Operations Instructions provide that,30 days of visa issuance or entry, the foreign na- if admissible, a foreign national requesting B-2 clas-tional adjusts status or engages in unauthorized em- sification should be admitted for six months. An eli-ployment, “the consular officer may presume that gible alien requesting admission in B-1 classificationthe applicant misrepresented his or her intention in should be admitted “for a period of time which isseeking a visa or entry.”11 fair and reasonable for completion of the purpose of the trip.”12 If the conduct in question occurs after 30 daysbut within 60 days of visa issuance or entry, there is There are certain exceptions to these standard ad-no automatic presumption of misrepresentation. If mission periods. In general, foreign nationals request-the consular officer has a reasonable belief that that ing admission as nonimmigrants will receive a short-the applicant has misrepresented his or her intent, ened period of admission unless they have a passportthe foreign national has the opportunity to present valid for at least six months beyond the conclusion of“countervailing evidence.” After 60 days, the foreign their anticipated period of stay. Also, as noted in thenational’s activities in the United States do not sup- FAM, a B-2 domestic partner or extended familyport a finding of ineligibility. Given that the 30/60 member may request a period of admission of oneday rule is a creation of DOS, it is the authors’ un- year. Significantly, such individuals are unlikely toderstanding that the rule is not used by the Depart- receive this longer admission period unless it is spe-ment of Homeland Security to determine eligibility cifically requested. Thus in situations where a longerfor admission or other benefits. period of stay is appropriate, counsel may wish to provide clients with a letter for presentation at theChanges Since 9/11 port of entry, if necessary. In the years since the 9/11 attacks, temporary visi- US-VISITtor admissions have decreased significantly. Recog-nizing the importance of facilitating business travel in Temporary visitors should be aware that theysupport of U.S. commerce, in a series of cables in may be required to participate in the U.S. Visitor2004 DOS announced a new initiative to expedite and Immigrant Status Indicator Technology (US-visa applications of legitimate business travelers. VISIT)13 program of the Department of HomelandMany consular posts now have formal programs that Security (DHS). US-VISIT requires most foreignenable major companies to enroll by demonstrating nationals to submit to biometric scans (both indexthat they meet and will adhere to strict criteria. Em- fingers are scanned, and a digital photograph isployees of companies that have completed this proc- taken) when entering the United States and a similaress may receive expedited visa appointments and visa procedure is performed upon exit. Based on the in-processing. Posts with formal programs have imple- formation collected, the US-VISIT system then veri-mented a variety of procedures to simplify the visa fies that the individual requesting admission is theapplication process, including allocating a certain same person as indicated on the passport and visanumber of visa appointments each day to program stamp, and performs searches through anti-terrorismapplicants, allowing group appointments, assigning and criminal history databases to confirm that thespecific consular personnel to the program, or allow- foreign national is admissible. DHS has estimateding applicants to appear at certain times without ap- that this process will add only seconds to the admis-pointments. When instructing business clients on visa sion process.application procedures at a particular post, practitio- Visa Waiver Programners should research whether such a program exists Additionally, visitors who are citizens of certainand whether participation in the program would be countries may seek admission in WB or WT statushelpful to the client. under the Visa Waiver Program (VWP)14 for a pe- 12 INS Operations Instruction (OI) 214.2(13). 13 69 Fed. Reg. 467 (Jan. 5, 2004).11 9 FAM 40.63 N4.7-2. 14 INA §217.
  7. 7. STUDIES IN CHAOS THEORY 305riod of no more than 90 days. The requirement of a Filing fee of $200 subject to periodic increases ;visa is “waived” for such individuals. To qualify, a Completed Form I-539 application including in-citizen of one of the designated VWP countries must formation regarding the foreign national’s sourceseek admission with a valid machine-readable pass- of support while in the United States;port (MRP) and possess a nonrefundable round-tripticket valid for no more than 90 days. The MRP Clear copy of the front and back of the foreignmust have all the required biometric identifiers in national’s I-94 Departure Record with entry andaccordance with its date of issuance. The VWP is an expiration dates clearly shown;extremely restrictive category, however, and does Copy of U.S. laser visa in the foreign national’snot allow a change of status or extension of stay. passport;Moreover, in exchange for the right to enter the Copy of the biographical information page fromUnited States without a visa, a VWP alien forfeits the foreign national’s passport;the right to have a determination of ineligibility re-viewed and the right to contest an order of removal. Letter from U.S. company (doctor, client, etc.) detailing the legitimate purpose of the visit to the WHEN THE VISIT LASTS LONGER THAN United States and need for an extension of stay; INITIALLY ANTICIPATED Letter from the foreign national’s foreign em- In some cases, the period of authorized stay ployer, if applicable, confirming employmentgranted to a temporary visitor is not sufficient time to abroad and salary or remuneration from abroad;complete the purpose of the trip. For example, a Copy of foreign bank statement showing avail-trainee may require more time in the United States for ability of funds for support in the United States;company training, a business person investing in a andnew venture may need to remain in the country to Evidence of permanent residence abroad that thefinalize negotiations, or a foreign national seeking foreign national does not intend to abandon.medical treatment may require more time to completethe treatment and attend follow-up appointments. In As a practical matter, the I-539 application willsuch situations, the foreign national must either depart take some time to be processed and is not currently aat the conclusion of the authorized stay and seek re- form for which premium processing (expedited ad-admission, risking a possible denial of entry, or file judication) is available. Clients should be instructedfor an extension of status with USCIS (unless admit- to submit such applications as soon as possible afterted under the VWP). it becomes apparent that an extended stay is re- quired. Early filing increases the probability that theRequesting an Extension of Stay extension request will be approved prior to the expi- USCIS regulations require that a Form I-539 Ap- ration of the original period of stay. In the event thatplication to Extend Nonimmigrant Visa Status be the extension is not approved in time, however, as-timely filed prior to the expiration of the foreign na- suming that the extension is timely filed and non-tional’s B-1 or B-2 visa status as indicated on his or frivolous and that the foreign national has not en-her Form I-94 Entry/Departure document. The I-539 gaged in unauthorized employment, the applicantapplication should be submitted at the USCIS ser- will have authorization to remain in the Unitedvice center with jurisdiction over the place in which States while the extension is pending. Clients shouldthe foreign national is temporarily residing, and it be aware that they must depart the United Statesshould include documentation establishing the pur- immediately if the extension request is denied be-pose of the foreign national’s extended stay and evi- cause unlawful presence will begin to accrue on thedence that he or she will have adequate financial date of the denial.resources during the requested additional period of Sometimes the temporary visitor may wish to de-stay. It is a generally accepted practice that USCIS part the United States after the expiration of his or herwill grant one extension of stay to a foreign national Form I-94 but before adjudication of a request forin the United States in temporary visitor status; how- extension of stay. An applicant who has filed a non-ever, this decision is discretionary, and there is no frivolous request for extension will not be deemed toguarantee of approval. Thus it is imperative that the have overstayed and thus will not be subject to theapplication be well documented. automatic visa voidance provision of INA §222(g). In Generally, the I-539 Application to Extend Non- order to ensure that the temporary visitor possessesimmigrant Status should include the following: sufficient documentation of the extension filing and
  8. 8. 306 IMMIGRATION & NATIONALITY LAW HANDBOOK, 2007–08subsequent departure, for any future visits to theUnited States or U.S. visa interviews the foreign na-tional should be instructed to carry a copy of theForm I-797 Notice of Receipt confirming extensionfiling, a copy of the Form I-539 application, and acopy of relevant departure documents (such as airlinetickets and boarding passes). CONCLUSION U.S. immigration law attempts to balance often-conflicting policy priorities such as ensuring nationalsecurity, facilitating trade and commerce, protectingpublic health and safety, and fostering internationalcooperation. The patchwork of rules and exceptionsin the temporary visitor categories—as close as ourturbulent and at times seemingly nonsensical field oflaw comes to chaos theory—are clearly an effort toreconcile these varied interests and build flexibilityinto the immigration system. Knowledgeable practi-tioners can find order in the apparent unruliness of thetemporary visitor classification and assist clients tooptimize their appropriate use of these important visaclassifications.