Filipina sent back for over-using her visitor’s visa

Dear Atty. Gurfinkel:

I have a 10 year multiple B-1/B-2 visa. Recently, I went to the US for a vacation, and was given 6 months by the Immigration Officer at the airport. I applied for an extension, and was granted another 6 months.

I returned to the Philippine about 3 months ago, and before my extension expired. So, I did not overstay. I would now like to go back again to the US Do you think that I will encounter any problems if I go back to the US so soon after returning from my recent vacation? After all, I do have a 10 year multiple, so shouldn’t I be allowed to come and go to the US as often as I like without nay hassles?
Very truly yours,
S.L.


Dear SL:

Even though a person has a valid visitor’s visa, a person is still subject to Section 214(6) of the Immigration and Nationality Act. That law creates a presumption that any alien wanting to go to America intends to immigrate, unless that alien can prove otherwise (i.e. prove that he or she is not intending to immigrate). In other words, you have to prove that you have sufficient roots, ties, and connections to your home country, and an incentive to return to the home country and not overstay in America.

Many people who apply for visitor’s visa, or those who already have visitor’s visas, run into problems when they cannot overcome this presumption. It must be stressed that a visitor’s visa can be canceled at the port of entry, at the discretion of the Immigration officer, if he believes you have "immigrant intent."

In fact, I recently came across a case where a woman’s 10 year multiple B-1/B-2 visa was canceled at the airport, and she was put on the next plane out of the US (which took her through Amsterdam, Tokyo, and then, eventually, to Manila). She gave us her permission to publish her story (without using her name), so that other readers will learn from her experience. This woman believed that because she had a 10 year multiple visa, she could come and go to the US as often as she pleased, without any problems. However, at the airport, the INS Officers were able to uncover the following facts and information:

• On a previous visit, she was given 6 months, and applied for another 6-month extension. So she had just been in the US for almost one year.

• She tried to return to the US about 4 months later, for another vacation. When asked what she did on her last vacation, she told the Immigration Officer that she took care of her sister’s children in America.

• When asked what she would be doing on this vacation, she again said she would be taking care of her sister’s children.

• When she was asked how long she planned to stay on this vacation, she said "only about 2 weeks." However, her luggage included to large balikbayan boxes full of clothes. So, the immigration Officer wondered why, when she was only going to spend about 2 weeks in America, she needed so much clothing. (The Immigration Officer concluded that the balikbayan had contained all her worldly possessions, and this was going to be her "final" visit to America)

• She had not worked in the Philippines for over 2 years, showing that she had no stable employment in the Philippines. Instead, she was relying on support from her sister in America.

• She owned no property in the Philippines., Instead, she lived at an apartment in the Philippines owned by her sister in America

• She only had $200 in her possession, which would not be enough for a person to support herself on a vacation.

• In her luggage, she had her job resume, which people ordinarily do not take along with them for a vacation.

• This woman had in her possession an Application to Extend/Change Nonimmigrant Status, along with information on how to obtain a Social Security number.

• This woman’s round trip ticket was "open-ended," which would mean that she, could, potentially stay for a very long time.

The Immigration Officer ultimately concluded that this woman had been overusing her visit’s visa and was treating it almost as though it were a greencard. In other words, she could not overcome the "presumption" of immigration intent. Therefore, her visitor’s visa was canceled and she was sent back to the Philippines.

If you have a visitor’s visa, then it is certainly permissible to come to America to visit. However, if you really want to study or work in the US, then you must have the appropriate visa to do so, such as a student visa (if you want to study), or a temporary working visa (H-IB), which is a nonimmigrant visa for college graduates, who will be working in a job requiring, and analyze your situation, advice you of the various legal requirements, and determine if you are eligible or qualify for the immigration benefit you seek.

The lesson to be learned is don’t treat a visitor’s visa as though it were a greencard, because you may face the same problems as this unfortunate woman. Get the right visa instead.

Michael J. Gurfinkel has been a licensed attorney in California for 21 years. He has always excelled in school. Valedictorian in High School; Cum Laude at UCLA, and Law Degree Honors and academic scholar at Loyola Law School, which is one of the top law schools in California. He is also an active member of the State Bar of California, the American Immigration Lawyers Association, and the Immigration Section of the Los Angeles County Bar Association. All immigration services are provided by an active member of the State Bar of California and/or by a person under the supervision of an active member of the State Bar.

His office are located at 219 North Brand Boulevard, Glendale, California, 91203 Telephone; (818) 543-5800. His Makati office is located at Heart Tower, Unit 701, 108 Valero Street, Salcedo Village, Makati, Philippines; Telephone 894-0258 or 894-0239. For more information about the Law Offices of Michael J. Gurfinkel, and to read previously published articles, please visit our website at www.gurfinkel.com.

(This is for informational purposes only, and reflects the firm’s opinions and views on general issues. Each case is different and results may depend on the facts of a particular case. No prediction, warranty or guarantee can be made about the results of any case. Should you need or want legal advice, you should consult with and retain counsel of your own choice.)