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.
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.
The above article is brought to you by “VisaPro.com”. VisaPro’s US Immigration Lawyer Services include B-1 Visa, H-1B, L-1, E-2, Adjustment of Status, Green Card, and over 100 Immigration Serices.
Visit VisaPro regularly for updates and the latest immigration news at http://www.visapro.com/news