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State Department Regulations Governing Visa Applications


Factors to be used in determining entitlement to Temporary Visitor Classification are as follows:
(1) In determining whether visa applicants are entitled to temporary visitor classification, you (the consular officer) must assess whether the applicants:
(a) Have a residence in a foreign country, which they do not intend to abandon;
(b) Intend to enter the United States for a period of specifically limited duration; and
(c) Seek admission for the sole purpose of engaging in legitimate activities relating to business or pleasure.
(2) If an applicant for a B1/B2 visa fails to meet one or more of the above criteria, you must refuse the applicant under section 214(b) of the INA. (See 9 FAM 40.7 for a complete discussion on Refusals Under Section 214(b)).

9 FAM 41.31 N2.1 "Residence" Defined

The term "residence" is defined in INA 101(a)(33) as the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent. This does not mean that an alien must maintain an independent household in order to qualify as an alien who has a residence in a foreign country and has no intention of abandoning. If the alien customarily resides in the household of another, that household is the residence in fact.

NOTE: Only the following visa categories are subject to residence abroad U.S. Department of State Foreign Affairs Manual Volume 9 - Visas 9 FAM 41.31 Notes Page 2 of 32 requirements: B, F, H (except H-1), J, M, O-2, P, and Q. When adjudicating this requirement, it is essential to view the requirement within the nature of the visa classification.

9 FAM 41.31 N2.2 Intent to Establish Residence Abroad

The residence in a foreign country need not be the alien's former residence. For example, an alien who has been living in Germany may meet the residence abroad requirement by showing a clear intention to establish a residence in Canada after a temporary visit in the United States.

9 FAM 41.31 N2.3 Mere Suspicion Not a Reason for Refusal

Suspicion that an alien, after admission, may be swayed to remain in the United States because of more favorable living conditions is not a sufficient ground to refuse a visa as long as the alien's current intent is to return to a foreign residence.

9 FAM 41.31 N3.1 Period of Time in United States Consistent with Purpose of Trip

The period of time projected for the visit must be consistent with the stated purpose of the trip. The applicant must establish with reasonable certainty that departure from the United States will take place upon completion of the temporary visit. Although "temporary" is not specifically defined by either statute or regulation, it generally signifies a limited period of stay. The fact that the period of stay in a given case may exceed six months or a year is not in itself controlling, provided that you are satisfied that the intended stay actually has a time limitation and is not indefinite in nature.

9 FAM 41.31 N3.2 Specific and Realistic Plans

The applicant must have specific and realistic plans for the entire period of the contemplated visit.

9 FAM 41.31 N3.3 Evaluating Cases

In evaluating these cases, you should not focus on the absolute length of the stay, but on whether the stay has some finite limit. For example, the temporariness requirement would be met in a case where the cohabitating partner will accompany, and depart with, the "principal" alien on a two-year work assignment or a four-year degree program.

9 FAM 41.31 N3.4 Ties Abroad

The applicant must demonstrate permanent employment, meaningful business or financial connections, close family ties, or social or cultural associations, which will indicate a strong inducement to return to the country of origin.

9 FAM 41.31 N4.1 Unlawful Activity While in Visitor Status

The law contemplates that an alien is traveling to the United States for legal purposes. Therefore, an application for a visitor visa must be denied in those cases where you have reason to believe or know that, while in the United States as a visitor, the applicant will engage in unlawful or criminal activities.

9 FAM 41.31 N4.2 Adequate Funds to Avoid Unlawful Employment

The arrangements which the applicant has made for defraying the expenses of his or her visit and return abroad must be adequate in order to prevent their obtaining unlawful employment in the United States.