Extending Visitor/Tourist Visa Status: It’s Gotten Complicated
Published July 10, 2008

While the laws governing the extension of visitor/tourist visa status for foreign nationals visiting the U.S. have not changed, the manner in which the Department of Homeland Security’s Citizenship and Immigration Service (CIS) is applying the law certainly has. This change in approach is definitely reason for prospective applicants to think twice about seeking to extend their stay in the U.S. Firstly, as many of our readers know, for those required to obtain a visitor visa (B-1/B-2) to enter the U.S., the process and requirements for getting the visa in the first place are anything but easy. The most notable requirement, and the one that typically dooms most visa applicants chances, is the one where the foreign national is required to demonstrate their nonimmigrant intent, i.e. that they have a sincere intention to return to live in their home country. In sum, applicants with good jobs, significant family ties and personal and real property of substantial value (including nice homes and bank accounts) in their home country, have the best chances of being issued a visa. Those without at least a few of these goodies are generally turned down.

Once the visa is issued and the applicant has the freedom to travel to the U.S., additional restrictions come into play. No matter the term of validity of the visa issued by the U.S. consular post or the fact that is valid for multiple entries, visa holders must be aware of a strict, yet uncertain set of rules governing how and when they can travel and/or remain in the U.S. Most notably – as of late, foreign nationals visiting the U.S. who seek to extend their visa status beyond the initial 3 or 6 month period typically granted upon admission, have been greeted with a big surprise: outright denials, and without a chance to respond to a Request for Evidence or further explain their reasons for seeking a stay. Just a denial, and of course, with instructions to depart the U.S. within 30 days.

So, what used to be a fairly straight forward process, with little supporting documentation required, has become a minefield. Visitors to the U.S. seeking to extend their stay should know that CIS wants to have details, details and more details about why the initial grant of 3 or 6 months upon admission did not allow the visitor to accomplish the purpose of their visit in the first place. And maybe, with enough details the visitor status extension can be secured. In addition to demonstrating a) the financial ability to support themselves during an extended stay (by documenting their own personal funds or by way of a sponsor’s affidavit of support) and b) a firm plan to return to their home country following the extension, applicants must provide a detailed itinerary for their extended period being sought.

From my office’s experience sometimes details are not enough, and an applicant, after being issued a denial, is left with the choice of simply abandoning the effort, or seeking to have the decision overturned by way of a Motion to Reconsider. Motions to Reconsider indeed do work, but given the uncertain timetable and prospects for success, the overall environment is one where prospective applicants are being given the following messages: think twice about seeking to extend your stay, and if you nevertheless want to give it a try, you better have a really good reason.

Foreign nationals are also advised to consider that the more time a visitor visa holder spends in the U.S., the more scrutiny the individual will receive upon future attempts to reenter the U.S. Essentially, border inspectors are charged with the responsibility of evaluating the visa holders true intent, i.e. is the intending visitor truly just a visitor or are they using the visa to live/work in the U.S.. So, notwithstanding the term of validity of the visa, the prospective visitor needs to be aware that their visa does not grant them the right to travel and/or remain in the U.S. without limitation. Those who do not give due consideration to these restrictions, face the very real possibility of either being denied reentry or even having their visa cancelled.

Copyright © 2007-2008, By Law Offices of Richard Hanus, Chicago, Illinois