Here’s what foreigners with tourist visas can and cannot do if they want to stay longer
Foreign citizens who enter the United States with tourism or business visas for temporary stays sometimes want to remain beyond the periods authorized by U.S. Customs and Border Protection officers at ports of entry.
Whether there are issues that make it impossible for them to return home, changes in their non-immigrant visa status, family petitions or tying the knot with U.S. citizens, there are many reason for trying to extend their stay legally.
El Nuevo Herald interviewed immigration attorney Angel Leal on how to remain legally in the United States after entering on a visitor’s visa. This is an edited version of the conversation.
U.S. tourist visa conditions
U.S. visas for visitors — B-1 for Business and B-2 for Tourism — are restricted to foreigners who have an uninterrupted intention to return to a home abroad that they have not abandoned. It does not tolerate an immigration intention both when applying for a visa abroad and when entering the country.
If there’s suspicion that a citizen of a foreign country who wishes to enter the country intends to stay, they can be denied a visa or entry.
The application requires foreigners to show that they plan to return to their countries because of their homes, families and other factors. It is also important to stick to the places that tourist declare they plan to visit when interviewed by CBP at ports of entry.
In conclusion, it is illegal to use a tourist visa if the plan is to immigrate because it violates the terms of their admission.
The first 90 days after legal entry
Immigration officials look closely at the conduct during the first 90 days of the stays of foreigners who arrive on tourist visas.
If they notice that during that period a visitor studied or worked without a permit or gave hints of establishing a home in the United States, he or she runs the risk of being accused of immigration fraud.
It is important to be very careful during those first 90 days, even though most B-2 visa holders are commonly given a six-month length of stay.
Who qualifies for a visitor’s visa extension
An extension to remain in the United States longer than authorized is for short-term issues, such as a medical emergency, recovery from such an event, being unable to fly, a family problem or a situation where the foreigner plans to return home but needs more time to resolve an unforeseen issue.
The U.S. Citizenship and Immigration Services recommends that those who wish to extend their stay apply at least 45 days before the authorized stay expires. (Nationals of participating countries who enter with the Visa Waiver Program cannot apply to extend.)
Changing to a student classification
If foreign nationals arrive on tourist visas and later have the opportunity to pursue full-time academic or vocational studies in the U.S., they can request an extension of their tourist visas at the same time they apply for one of several student and exchange visitors visas.
This allows the applicants to stay in the country legally while awaiting the change of non-immigrant status.
Foreigners who want U.S. permanent residence
If someone enters with a tourist visa and wants to apply for lawful permanent residence based on one of eight categories, the worst thing they can do is to ask for a visitor visa’s extension.
Asking for an extension in order to apply for residence is evidence that the individual came to the United States with a tourist visa but with a plan to remain with an immigrant status.
Many people recommend applying for the extension to avoid remaining in the United States illegally, but sometimes that amounts to immigration fraud.
How to apply to extend tourist, business visa
Applicants need Form I-539, Application To Extend/Change Nonimmigrant Status, which is easy to fill and file online.
Foreign nationals who want to extend their stay in the United States can file the petition if they have the following types of non-immigrant visas:
▪ B-1 temporary visitor for business
▪ B-2 temporary visitor for pleasure
▪ F-1 academic student with a specific status expiration date
▪ F-2 spouse or child of an academic student with a specific expiration date
▪ M-1 vocational student
▪ M-2 spouse or child of an M-1 student
The first step is to create a personal account with USCIS by going to https://myaccount.uscis.dhs.gov and using an email address to register.
If you need help, these are the official instructions to fill Form I-539.
It is more difficult to figure out when the application should be submitted, because foreigners are swearing to the truth of the information they’re providing.
Read more: Here’s what it takes for an immigrant to get a green card — and not lose it
More options to stay legally in the U.S.
In addition to the academic F-1 and vocational M student visas, foreigners can apply to change their legal status to other non-immigrant visa categories such as:
▪ H-1B for temporary workers in a specialty occupation
▪ H-2A for temporary agricultural workers
▪ H-2B for temporary non-agricultural workers
▪ L-1A for intracompany transferee executives or managers
These changes are allowed as long as the person was lawfully admitted and their non-immigrant status remains valid.
Foreign relatives of American citizens
There are several channels to get a green card for foreign nationals who have family ties with U.S. citizens and lawful permanent residents:
▪ Immediate relatives, such as spouse, children who are minors or parents of a U.S. citizen 21 or older
▪Family-based preference immigrants categories, which include the unmarried children of U.S. citizens who are 21 or older, as well as spouses and children of lawful permanent residents.
▪ Other possibilities include: the fiances of U.S. citizens, the fiances’ children, widows of U.S. citizens and victims of abuse or extreme cruelty committed by spouses, former spouses, and parents or children who are U.S. citizens.
If the foreign national has immediate relatives who are U.S. citizens the law allows them to seek lawful permanent resident status based on their family relationship if they entered the country legally and are eligible.
If the petition is for other family members under the preference immigrant classifications, the law requires not only that they entered legally, but that they remain under legal status all the time until the adjustment of status, among other requirements.
Falling in love and getting a green card
The key questions are how they entered the country, how long ago and with what intentions. Let’s say a person just arrived, it’s a long-standing relationship and now there’s an opportunity to formalize it. They should be careful about the 90 days and not live together or marry so quickly.
But they do have to submit the application before the expiration of the period of stay, so they do not wind up accruing unlawful presence time.
If the foreign partners have been in the United States for years, and even if they have stayed beyond the authorized period, there’s no problem marrying and then applying for the change in status — unless there are other problems that cannot be condoned by authorities.
If there’s already a relationship, now is the time to start planning to apply for permanent residence. Immigration officials trying to corroborate the validity of the marriage focus on the intent at the time of the marriage. Save any evidence of joint financial responsibility.
Having a good immigration plan
If a foreign national arrives without a plan, he or she may wind up breaking U.S. immigration laws, creating inadmissible conditions such as immigration fraud or submitting a frivolous or non-meritorious asylum applications.
It’s best to tell the truth and look for the visa compatible with their goal.
Watch the complete interview in Spanish:
Daniel Shoer Roth is a journalist covering immigration law who does not offer legal advice or individual assistance to applicants. Follow him on Twitter @DanielShoerRoth or Instagram. The contents of this story do not constitute legal advice.
Read more: It is hard for foreigners to get immigration benefits. These USCIS digital tools help.
Read more about legal and immigration issues in Spanish at AccesoMiami.com
This story was originally published February 18, 2020 at 2:22 PM with the headline "Here’s what foreigners with tourist visas can and cannot do if they want to stay longer."
