Under section 214(b) of the INA, “every alien (other than a nonimmigrant described in subparagraph (h)(i) or (L) of section 101(a)(15) shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a nonimmigrant visa, and the immigration officers, at the time of application for admission, that he is entitled to nonimmigrant status under section 101(a)(15).”
How does one prove “bona fide non-immigrant intent”?
Because there are such a high number of applications for short-term business and tourist visas in comparison to the rest of non-immigrant visa categories, the issue of immigrant intent is more closely scrutinized for B visa applicants. The State Department has specified five general requirements for issuance of a B visa to a foreign national. These requirements are rarely waived:
- The alien is entering the U.S. for a limited duration;
- The alien intends to depart the U.S. at the expiration of his or her stay;
- While in the U.S., the alien maintains a foreign residence which he or she has no intention of abandoning;
- The alien has adequate financial arrangements to travel to, travel within, and depart from the U.S.;
- The alien will only engage in limited activities relating to business or pleasure.
For typical employees of established and large or recognizable companies who intend to engage in productive business activities, a letter from the company setting forth a legitimate business reason, setting specific dates during which business will be conducted, and including supporting documentation of the trip arrangements, will usually adequately demonstrate bona fide non-immigrant intent. Generally, detailed statements from large employers (called ‘affirmations’) are sufficient to show bona fide non-immigrant intent.
By themselves, such affirmations will not work for the foreign national who is an employee of a small company, or who merely wishes to explore potential business opportunities in the U.S. When the legitimacy of a large, recognizable company is not affiliated with the application for a B visa, then consular and Customs and Border Protection (CBP) inspecting officers seek substantial evidence that bona fide non-immigrant intent exists in order to approve B visa applications, and allow entry at the port-of-entry. Normally, this evidence is straightforward and available to the applicant.
Consular officers are trained to uncover critical evidence relating to intent, such as:
- Financial arrangements made by the visa applicant. Does the applicant possess evidence that travel to, within, and from the U.S. can be easily accomplished? The easiest way to demonstrate this point is to present a pre-paid round trip air ticket for the applicant, and other pre-paid travel expenses, such as hotel accommodations.
- Does the visa applicant have specific and realistic plans for his or her visit, or are the plans vague and uncertain? The best way to show that the trip is for a specific and realistic purpose is to present documents which evidence travel plans and hotel reservations, and a detailed itinerary of the trip. For example, if the trip is desired to attend a pre-planned conference about potential business opportunities in a particular city in the U.S., then appropriate evidence of non-immigrant intent would include a letter from the local conference organizers setting forth in detail the conference dates, location and schedule. If an informational brochure has been printed, this should be presented also. Consular officers are highly suspicious of “general” business activities or planned meetings or seminars the purpose of which cannot be explained in detail.
- Is the period of time which the applicant is planning to spend in the U.S. consistent with the stated purpose of the trip? If an applicant for a B visa states that he or she would like to visit the U.S. to attend a five-day business conference, but requests a visa for 30 or more days, the consular or INS officer will likely suspect the applicant has an underlying intention to immigrate. The period of the trip should always coincide with the applicant’s firm and documented travel plans. If the business activities are open-ended, the applicant should always state he or she would like to obtain a B visa for a time reasonably consistent with the stated purpose of the visit.
- Does the applicant have reasonable employment or business connections with the home country, or family, social, cultural, or other associations that would assure his or her return from their trip to the U.S.? This is perhaps the most important evidence of non-immigrant intent. Holding steady and formally recognized employment in the city of the applicant’s residence, or running a substantial business enterprise, is itself the best evidence of a strong connection to the applicant’s home country to assure a consular or INS officer that the applicant has bona fide non-immigrant intent. Documents which can affirm these facts, such as employment reference letters, recent paychecks, payroll records or employment identification cards, will greatly help toward a decision in the applicant’s favor.
If an applicant is leaving behind a spouse or children, then documentary evidence such as marriage or birth certificates, recent family pictures and tax returns or other authoritative documents currently describing the family unit or residence is good evidence of bona fide non-immigrant intent. An immigrant would not normally leave behind their immediate family.
Most people throughout the world have evidence of financial ties and ownership of property where they reside. Monetary assets, financial or business investments, real property (i.e., land, homes or commercial buildings) and other evidence of personal wealth being left behind amount to very good evidence of bona fide non-immigrant intent. Such evidence might include bank account statements, stock certificates, and/or real property deeds.