April 11, 2002 - The Immigration and Naturalization Service (INS) has released proposed rules that will make three significant changes to the B visa program. Proposed changes include the elimination of a minimum admission period for B visitors, the reduction of the maximum period of admittance for B visitors from one year to six months, and the creation of stricter rules governing extensions of B status and changes of status from B to F-1 and M-1 status. Each of these changes is discussed in more detail below.

B nonimmigrant visas are available to temporary visitors to the U.S. who are engaged in business such as conferences, consultations and training (B-1) and to visitors for pleasure (B-2). In the past, B-2 visitors would automatically be admitted for six months. Proposed rules will eliminate the minimum period of admission, and instead B visitors will be admitted for thirty days, unless the purpose of the visitor's trip reasonably requires a longer duration. In cases of ambiguity, the inspecting officer will admit the visitor for thirty days only. Further, regardless of the circumstance, B visitors will be admitted to the U.S. for no more than six months. Under previous rules, visitors could be admitted for a maximum period of one year when projected activities could not be completed in less time.

Visitors may file extension of status applications, however, proposed rules would only allow the INS to approve extensions in the event of an unexpected occurence (e.g., out of alien's control), compelling humanitarian reasons (i.e., ongoing medical treatment or emergency), or if INS policy directs it. As always, applications to extend status must be filed prior to the expiration of the initial status and visitors must be able to demonstrate adequate funding for the duration of their trip, and that they are maintaining a residence abroad.

These new rules lend an additional element of uncertainty for B-1 business visitors who need to travel to the US for periods of more than 30 days. Whether the INS would approve the extension of a B-1 application where a B-1 was incorrectly admitted for less time than needed is questionable. As a result, we advise that clients consider using L-1 intracompany visas when sending qualifying overseas employees to the U.S. for extended periods of time. For more information on the L-1 visa program, please click on the following link:

http://www.usabal.com/visas/L-1_visa_overview.html

Finally, proposed rules would amend current regulations regarding a prospective student's entrance into the U.S. in B-1 or B-2 status to visit possible places of study. Under these proposed regulations, only those B nonimmigrants who affirmatively state an intention to visit schools at the time of admission, and whose I-94s are annotated with the phrase "Prospective Student" will be able to request a change of status to F-1 or M-1. Additionally, prospective students who have already received Form I-20, Certificate of Eligibility for Nonimmigrant Student, from one or more schools will be required to present the Form at the time of admission. If the "Prospective Student" annotation is not present on Form I-94, the request to change status will be denied by the INS. Prospective students with no annotation on their Form I-94 will be required to leave the U.S. to request an F-1 or M-1 visa at a U.S. consulate.

Proposed rules could take effect as early as next month. Berry Appleman & Leiden will continue to post updates regarding these rules as information becomes available.