B Visa to the USA

August 2, 2022 6:39 AM

Hi, my cousin would like to spend four months in the USA while his girlfriend is in the USA for study on an F-1. He doesn't want to work there. He's a national of a Visa Waiver Program country. Questions: (1) Can he apply for a regular B visa (which allows 180 days' stay rather than 90 under the VWP)? (2) Is "accompanying my girlfriend and hanging out" a valid purpose for a B visa?
posted by rouleur to Law & Government (8 answers total)

Looks like your cousin would be fine:

To be eligible for a B-1 or B-2 visa, the applicant must prove that the travel is temporary and they have the ability to self-fund all costs of the trip. Additionally, they must prove that they have no intent of remaining in the United States beyond their stay and abandoning a residence outside of the United States.

(Source) More detail available at link. Does not look like a reason for being in the US is required, just proof they can pay their way and have no intention to stay permanently.

Cousin would want a B-2, obv. State Dept page.
posted by DirtyOldTown at 6:45 AM on August 2, 2022

Response by poster: Oh--should have added: if he works remotely at his job in his home company, is that a problem on a B2 visa? Legally? Practically?
posted by rouleur at 7:09 AM on August 2, 2022

A visitor can do their work/ personal stuff in the US, as long as their employment i.e. employer-employee relationship has no direct legal, financial bindings with the destination country of tourism.

Longer piece on that here.
posted by DirtyOldTown at 7:27 AM on August 2, 2022

Probably/possibly, but the trick to getting this kind of visa is often about showing to the decision-makers that you have strong enough ties to your home country that you're not a risk of overstaying. For the US, that usually means someone at the Embassy and someone at the border.

Your cousin should look at the experiences of other people applying for B visas with his specific nationality to find out more specifics about what they tend to be looking for. I'm basing this on hearsay about British immigration, but it would not surprise me if the default was to be suspicious of people who could use the VWP. 90 days is a long time to be away from a job, a business or an education.
posted by plonkee at 7:38 AM on August 2, 2022 [2 favorites]

Response by poster: Having discussed further with my aunt (the cousin's mother) it turns out he needs to keep working remotely for his home-company country. This company has no ties with the USA. In practice it looks like he can just keep doing this without telling the US authorities. The problem is that his employer wants assurance that it's all above board. The forum post linked by DirtyOldTown above seems plausible but isn't specific to the US and contains no references. Looks like this might be a sticking point if the employer really wants clarify that it's legally OK with the US authorities. Seems like a grey area.
posted by rouleur at 7:50 AM on August 2, 2022

Remote work in the US with one's employer while on holiday (as it would be technically) should be possible. If at all it ever becomes a sticking point when it comes to tourist passes anywhere it's working for an employer in the destination country and then getting paid, because it affects taxation mainly and other employer obligations. (I'm just restating DoT's link basically). The question is if his application requires a visa interview, is this something he can safely tell the embassy officer, who might use their discretion to reject the application? My sense is if he presents it as an ongoing remote work it might also answer the self-funding requirement, but US embassy officers are notoriously fickle ime.
posted by cendawanita at 8:52 AM on August 2, 2022

It is not clear why his immigration status in the US would be relevant for his home employer. They should be interested in what a long stay in the US does to their tax status wrt the US. That’s for them to figure out, not your cousin, and is not normally based on his personal status there.

Has your cousin explored travelling on VWP, leaving the US within 90 days and returning? Many people I work with have frequent business trips to the US. Purely arriving twice in 90 days with the intention to work for your home employer is common, so are regular personal trips for people in LDRs. Clearly, I am not an immigration or tax lawyer hence use of the word ‘explore’.
posted by koahiatamadl at 8:58 AM on August 2, 2022

1. Looks like he's fine. The Q&A on the State Department page for the Visa Waiver program states:

May I apply for a visa instead of using the VWP?

Yes, you may apply for a visitor (B) visa, if you prefer to do so or if you are not elegible for VWP travel. Additionally, you need to apply for a visa if you will be traveling on a private aircraft or other non-VWP approved air or sea carrier. Review the approved carriers list. Also, if you intend to stay longer than 90 days, then you need to apply for a visa.

Note though that waiting times for visitor visas can be long - see the calculator on the State Department site here, which says the wait time for a visitor visa if applying in London is 140 days.

2. Visiting my girlfriend while she is studying temporarily in the US, and going on a holiday seems like a good reason. As plonkee said, you want to make sure they don't think you intend to overstay or to work illegally. So a return plane ticket, evidence of sufficient funds to support yourself while you're in the USA, evidence that you are going back to a job, would all be helpful. Equally, emphasizing that my girlfriend was going to be returning to my country. Also, being able to give the address where he is staying, and to give some info about what he wants to see (if saying he is also on holiday). Where this could be a problem, I suspect, is if he doesn't have much in the way of savings, and is instead relying on income from his job that he will earn while in the USA.
posted by Pink Frost at 6:25 PM on August 2, 2022 [1 favorite]