A Primer in U.S. Immigration Law
A Primer in U.S. Immigration Law
(A guest post by an Immigration Attorney)
The United States is not very friendly to foreign persons who would like to buy a home or condominium and/or spend extended periods of time in the United States.
The U.S. has two avenues for this category of foreign visitors to be admitted to the United States.
Persons who are citizens of designated countries are admitted under the Visa Waiver Program and must apply for an advanced security check process known as ESTA (Electronic System for Travel Authorization).
A citizen of a VWP (Visa Waiver Program) country applies for that authorization at a U.S. Consulate in their home country.
A person entering under ESTA authorization is limited to a 90-day period of stay. ESTA is an automated system that determines the eligibility of visitors to travel to the United States under the Visa waiver program.
While this is great for typical short-term tourists, it is not favorable to persons who would be interested in purchasing a home in the United States. This is simply because the ESTA authorization cannot be extended, even for persons who have purchased a home in the US.
For many persons, a non-extendable 90-day period of stay is not conducive to spending hundreds of thousands of dollars on a home or condominium. The B-1/B-2 (B visa) is a better alternative for these reasons.
To qualify for a B visa, foreign persons must persuade the U.S. Consulate that they have sufficient financial status and a valid motivation to return to their country.
As an example, if a B-2 visitor’s next entry in a given calendar year may bring the total time in the US over six months, the USCBP (United States Customs and Border Protection) officer has the discretion of admitting the B-2 person, especially if the visit in question is at the end of the calendar year or if the B-2 entrant is seeking to participate in an athletic event which straddles the next twelve month period.
These situations are adjudicated on a case-by-case basis, but unlike an entry under ESTA is not subject to an automatic finding of a violation of the 90-day period of stay.
Persons entering on B-2 visas (visitors for pleasure) are usually admitted for up to 6 months at a time. This stay can be extended for additional periods of up to 6 months.
While the US border authorities (USCBP) will often consider the 6-month status as a cumulative period, they will use their discretion if a person’s entries based on the number of visits still evince a temporary period of stay.
Persons entering B-1 status are usually admitted for the requested time, but often will be issued a 6-month stay.
There is yet another benefit to entering the US pursuant to a B visa, and that is, in the event the entrant is considering purchasing a US business enterprise or otherwise engaging in an activity outside of the B visa, the B visa entrant can petition for a Change of Status (COS) to an appropriate non-immigrant status.
Submitting the COS petition will automatically extend the B visa stay until the COS petition is adjudicated. This flexibility is a valuable feature of the B-1/B-2 visa.
The selection of either B-1 (visitor for business) or B-2 (visitor for pleasure) is determined at the port of entry by the USCBP.
A Buyer’s agent may find this information useful in assessing the entrant’s goals and financial capacity and may be a favorable factor in discussing a visitor’s other interests and long-term goals. .
Furthermore, a real estate professional with some degree of knowledge or interest in the entrant’s plans will probably be regarded as highly professional.
Many of the above scenarios should involve review by an attorney who is competent in immigration law or attorneys and other professionals who would be in the best position to assist a foreign person in achieving his or her goals.
Either way, some basic knowledge – and the above is truly basic -- of the above US immigration issues is but another arrow in the real estate professional’s quiver, especially for a Buyer’s Agent.
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