Introduction

Before you start filling out application forms or packing your suitcase, let's make sure that you qualify for the visa or status that you want. Establishing your legal eligibility is very important -- the government officers who are deciding your case will strictly follow the rules that govern who gets to come to the United States -- and who doesn't. Unless they find that you clearly meet the legal criteria, they cannot and will not approve you. Tourist visa eligibility is discussed in Section B, and student visa eligibility is discussed in Section C.

For ease of reference, we will refer only to your eligibility for a "visa" from this point forward -- even though applicants who are already in the United States will not be applying for a "visa," but for a Change of Status. The eligibility criteria are, however, the same.

Convincing Skeptical Government Officials

As part of applying for a tourist or student visa, you will have to convince a skeptical officer at a U.S. consulate that you meet all of the eligibility criteria for these visas described in Sections B and C, below.

This is no easy task. New security concerns mean that every aspect of your application will be carefully examined. Also, unfair as it seems, U.S. consular officers are legally required to assume that your real plan is to stay permanently in the United States. See I.N.A. §214(b), 8 U.S.C. § 1184(b). For this reason, your word alone (even your most solemn promise that you'll stay in the United States only as long as you're allowed and then go home) will not be enough. You must come up with hard evidence to support your promise to return -- without it, the consular officer will deny your application. The way to overcome this official suspicion is to present believable and compelling documents, which we'll cover in the chapters concerning the application process.

You may be tempted to lie during this process -- perhaps to make your income look greater or to conceal the presence of family members with U.S. citizenship. We strongly recommend against lying, and not for moral reasons alone. U.S. government officials are pretty good at catching people at lies, and are continually finding more ways to detect lies. Once you're caught, not only will your application be denied, but a notation will be made on your record that you made a fraudulent statement. Fraud can disqualify you on future applications for visas or other U.S. immigration benefits (in fact, it's a stated ground of inadmissibility, as described in Chapter 2, Section A).

On the other hand, being honest doesn't mean that you have to offer every detail about your life. If an officer doesn't ask you about an aspect of your life or your plans, you don't have to give them the information. And since the officials will be interpreting the law strictly, so can you. For example, your "intention" can still be to return to your home country even if, in the back of your mind, you think it wouldn't be all bad if, during your student days, you fell in love with an American citizen and decided to get married. That's not information that the consular, border or INS officer needs to hear.

Are You Eligible for a B-2 Tourist Visa?

Qualifying for a B-2 tourist visa depends primarily on what you plan to do during your visit and whether you'll really return home afterward. The INS or consular officer will want to see that you:

• are coming to the United States solely for pleasure or for medical treatment, and not for other reasons (such as to work or to stay permanently), as discussed in subsection 1, below
• plan to stay for a limited, specific period of time, as explained in subsection 2, below
• have a residence (a place to call home) outside the United States as well as other binding ties which will assure your return home after your visit, as discussed in subsection 3, below
• have permission to enter a foreign country (probably your own) at the end of your stay, as explained in subsection 4, below, and
• are able to pay for your visit to and departure from the United States. as explained in subsection 5, below.

1. Your Visit Must Be for Pleasure Purposes

What does it mean to be coming to the United States for pleasure? Here is how the U.S. State Department's regulations describe it:

Legitimate activities of a recreational character, including tourism, amusement, visits with friends or relatives, rest, medical treatment and activities of a fraternal, social or service nature. 22 C.F.R. § 41.31(b)(2).

This definition allows for a range of activities, from sightseeing to taking classes to attending conferences. It does not, however, allow visits for the purpose of working for pay or conducting other business activities, such as attending trade conventions, giving consultations, selling international products or even serving as a minister or missionary. A separate visa (the B-1) exists for certain business activities (business visas are not covered in this book). Pleasure also cannot include working as a member of the foreign press or information media, since there is a separate visa for this (the I visa). An intent to commit a crime doesn't qualify someone for a tourist visa either, no matter how pleasurable the rest of their planned visit.

EXAMPLE: Rajiv is a classical musician. He has always dreamed of hearing all the major U.S. symphonies play and puts together an itinerary where he can hear a succession of their performances in their home symphony halls. Rajiv's visa is granted. His friend, Ramesh, is also a musician. Rajiv invites Ramesh to come along. Ramesh, however, makes the mistake of telling the consular officer that he will fund his trip by playing his violin on U.S. streetcorners. This transforms Ramesh's trip into a money-making venture, not just a pleasure trip. Ramesh's visa is denied and Rajiv will have to make the trip alone.

There are some reasons for visiting the United States that don't sound like pure pleasure to most people, but are recognized by the State Department as sufficient to qualify for a B-2 visa. Medical treatment -- which not many people would consider pleasurable -- is specifically covered by this visa. Also, someone accompanying a visitor for business (B-1) or certain other temporary visa holders will usually be given a B-2 visa. Similarly, family or household members of someone coming on another temporary visa (such as students, diplomats or temporary workers) who don't qualify for what's called "derivative status" and an automatic visa of their own as that person's spouse or children can be given a B-2. Derivative visas are not covered in this book -- many U.S. visas allow spouses and children to come as derivatives, but not all do, so the B-2 visa can be used to avoid family separation in such instances. Being able to come to the United States as a B-2 visa holder also prevents separation of domestic partners, homosexual partners, elderly parents and others (see sidebar, "Special Advice for Those Accompanying Another Visa Holder.")

EXAMPLE: Samuel has been granted an F-1 visa to study in a special private high school for advanced training in math and science. Though he's a genius, he is certainly not ready to live on his own. His mother is granted a B-2 visa to accompany him.

EXAMPLE: Antonia has been granted an H-1B visa to work as a medical engineer in Boston. Her female partner of 11 years, Jana, would like to accompany her. Jana is given a B-2 visa.

Someone wanting to get married in the United States but not planning to stay and apply for a green card could also use a B-2 visa. A student looking into potential schools or colleges could also use a B-2 visa whether or not she plans to return home before enrolling (but should make her intentions clear, so that she isn't accused of visa fraud if she decides to enter school immediately, without leaving the United States). And people who have served in the U.S. military and become eligible for U.S. citizenship as a result can use a B-2 visa to come and submit their citizenship application.

2. You Must Plan to Stay for a Limited Time

When you apply for your visa, you'll have to show the consular officer that your plan to visit the United States is coupled with a plan to leave again, and to leave fairly soon. By means of maps and schedules, you'll want to show that your length of stay is based on something real, like a planned event or itinerary, and not just on a desire to stay for as long you can. The Foreign Affairs Manual (FAM), a government document followed by the officials who will decide whether to give you a visa, specifically cautions that "the applicant's intentions must not be expressed in terms of remaining in the United State for the maximum period allowable by U.S. authorities." See FAM § 41.31 N2.5 to 22 C.F.R. Part 41. Before your trip, think about what you want to see or accomplish while you are in the United States and allot the right amount of time to cover this.

EXAMPLE: Matteo plans to make a road trip across the United States. When he applies for his visa, he shows the consular officer his route, his calculations of miles he can cover per day and his list of what he will see at each stopping place. Because of his careful plans, he knows his exact departure date. His visa is granted.

EXAMPLE: Thaddeus also plans a road trip across the United States. He however tells the consular officer that "whatever road calls me, I will follow." He sees his trip as a spiritual journey, but assures the officer that the spirits will guide him back to an appropriate airport at the right time. The visa is denied.

If you're starting to wonder how anyone has the time to plan a trip to the United States, here's a word of comfort. You probably won't have to do this much work for future trips. If you succeed in getting this visa, and you return on time, the next time you apply for a tourist visa you may be granted one that's good for more than one trip -- called a "multiple entry" visa. (First-time visa applicants usually receive only single entry visas.) With a multiple entry visa, you won't have to show the consulate proof of your travel itinerary or other eligibility criteria before you leave for the United States -- although you will still have to answer some fairly specific questions when you show up at the U.S. border, as we'll discuss in Chapter 9.

3. You Must Have a Residence and Other Ties to Your Country

The toughest requirement for most applicants is not the need to prove your well-planned trip to the United States -- it's the requirement that you have a residence and other reasons compelling you to return to your home country at the end of your visit. The forces pulling you home might include a house, a family or a stable job. It's especially tough because the person reviewing your application presumes that you really want to stay in the United States permanently even before he has met you. It will be entirely up to you to disprove this presumption (for more on this issue, see Section A, above).

Young applicants in particular -- the ones who, ironically, may have the most free time to travel -- are the least likely to have a stable residence or other convincing ties. Luckily, the rules do not specify exactly what types of ties to your home country you must show. In fact, even your "residence" does not need to be your own house or apartment -- living in someone else's household is fine, as is returning to a different residence than the one you'll leave behind. You may need to get creative, looking at your involvement in community organizations, hobbies, educational plans or other activities that will pull you back when your U.S. visit is over.

EXAMPLE: Malasha is 19 years old and lives with her parents, with whom she doesn't get along. She has finished high school, but didn't get into a college she wanted to attend. She tells the officer that she'll return home because of her parents, but can't help rolling her eyes and looking pained when she talks about them. The visa is denied.

EXAMPLE: Li-feng is 18 years old and has just finished high school. Although she didn't get into college on the first try, she enrolled in a demanding college preparatory course and paid the entry fee. The course starts after Li-feng returns from the United States. By showing the officer proof of her course registration and payment and talking with the officer about how important it is for her to find a college that allows her to live with her parents, she convinces him to grant her the visa.

4. You Must Have Permission to Enter or Reenter a Foreign Country After You Leave

The United States doesn't want to be stuck with anyone who comes as a tourist and then has no place to return. If you're coming from your home country and returning home afterwards, your country will presumably let you back in, except in highly unusual political circumstances.

If, however, you will be travelling to a third country after visiting the United States, be prepared to show that you have a visa or other permission to enter that country.

EXAMPLE: Primo, who lives in Italy, has purchased a plane ticket that allows him around-the-world travel. He'll be coming first to the United States and continuing on to China. He will need to obtain a visa to China before he applies for his U.S. visa. That way he can show the U.S. consular officer the visa to China as proof that he not only has a plane ticket to depart the United States, but will be permitted to go on to his next destination.

5. You Must Be Able to Pay for Your Visit and Departure

Every day that you spend in the United States is going to cost money. Your hotel stay, rental car, food, tickets and other items will add up fast, and the U.S. government knows it. You will have to show that you have the savings to cover your trip, or that someone else is willing to be responsible for supporting you. If your trip is going to be difficult on your budget, do some research to find out exactly how much you are likely to spend and how you will afford it. The U.S. consulate itself may have a library that can help you learn this sort of information, or you can check a reputable and up-to-date travel guide such as those by Lonely Planet, Fodor's or Baedeker.

The more people in your traveling party, the more expensive your stay will be. For example, a person coming to the U.S. to visit Disneyland and other sights with their spouse and three children for three weeks will have to show that they have enough money to pay for hotel, food and other expenses for five people. Too many folks to feed and entertain and you might not get a visa at all -- the consul will want to see that all of the expenses for all of travelers will be covered (though you can combine the family members' incomes and resources). But leaving family members at home may not be the answer. If you are the principal wage earner for your spouse and children and they are not traveling with you, you will have to show that they will be provided for while you are away -- particularly if you're planning a long trip. If it looks like your family will be going hungry while you're traveling, the official deciding your case may assume that there's more to your trip than meets the eye -- perhaps that you are hoping to find employment in the United States.

Are You Eligible for a Student Visa?

Knowing that you want to study in the United States, or even gaining admission to a school is not enough by itself to qualify you for a student visa. Regardless of whether you're interested in an academic (F-1) or vocational (M-1) visa, you'll also need to satisfy the U.S. consulate or INS that you are:

• admitted to a U.S. school that has been approved by the INS (as discussed in subsection 1, below)
• a "bona fide" student (see subsection 2, below)
• qualified and ready for your planned course of study (see subsection 3, below)
• planning only a temporary stay in the United States (see subsection 4, below), and
• able to pay for your studies (see subsection 5, below).

1. You Have Been Admitted to an Established, INS-Approved School or Program

You can't get a student visa unless your intended school or program has already been approved by the INS to receive foreign students. Most established schools have such approval -- the school itself should be able to confirm this for you.

If you plan to come on an F-1 visa, the school must be a college, university, seminary, conservatory, academic high school or other academic institution or a language training program.

If you plan to come on an M-1 visa, you must attend a community or junior college that provides vocational training and gives out associate degrees. Or, you must enroll in a vocational high school or other approved program. M-1 students can't come to the United States for the sole purpose of studying English -- but if your program will include some English-language training that will help you "understand the vocational or technical course of study," that won't be a hindrance to getting your visa. See 8 C.F.R. § 214.3(a)(2)(iv).

2. You Are a Bona Fide Student, and Nothing Else

Since students stay longer and learn more skills than people on many other types of visas, the U.S. government's suspicion that you want to stay permanently is particularly high. You'll have to convince the government that you are a bona fide (real) student, whose intention in coming to the United States is not to get a job, find a spouse, or even just enjoy the scenery. You won't be given a visa unless you can show that you're ready and able to "hit the books" and study.

EXAMPLE: Ananya applies for a student visa in order to pursue a degree in women's studies at a small eastern women's college. She was a top student at her high school and won a performance-based scholarship. Ananya is already married and her husband will be staying in India during her studies. The visa is granted.

EXAMPLE: Parnika applies for a visa to an American military academy. She has been out of school for a few years, but her grades were not impressive. Since school, she's been working as a journalist and is known for her articles advocating pacifism. The consular officer believes Parnika is actually planning to write an exposé on U.S. military training rather than complete a study program, and denies the visa.

3. You Are Qualified to Pursue a Full Course of Study

The requirement that you are "qualified" to study is loaded with meaning. You must have the appropriate background, including study, training or experience, for the program that you will be entering. Also, you must be sufficiently proficient in English to complete your studies (unless you plan to come on an F-1 visa for the sole purpose of studying English).

a. Showing Your English Proficiency

You'll have to prove your proficiency in English twice. First, you'll have to prove it to the school that admits you. They may require you to take an English test in your home country, such as the "TOEFL" (Test of English as a Foreign Language). Second, you'll have to prove it to the U.S. government officer who decides whether to grant you the F-1 or M-1 visa. The government knows that the school has tested your English already, but seems to want to double-check it -- perhaps because the consulate or INS has a chance to meet you personally, whereas the school might not.

If your English is not quite good enough for American classroom study, there are alternatives. You may qualify for a visa by showing that English classes will be part of your curriculum -- and that the classes will enable you to catch up quickly. Some schools offer special programs to get you up to speed, for example in the summer before the start of formal classes. If, however, it looks like you're going to be spending so much time learning English that you can't maintain the rest of your studies, your visa is likely to be denied.

b. Definition of a "Full Course of Study" for F-1 Students

For F-1 students, a "full course of study" means that you can't be a part-time student. Your study must "lead to the attainment of a specific educational or professional objective." This objective can be a degree, such as a Bachelor's, Master's, Ph.D. or other certification. However, you don't actually have to complete that degree in the United States. You could come to the United States to take a semester of college courses as your "objective," so long as your study is full time during that one semester. The following types of study are acceptable:

• Postgraduate or postdoctoral study at a college, university, conservatory or religious seminary.
• Undergraduate study at a college or university; at least 12 credit hours per term (for schools on the semester or quarter system), except during the last term if fewer hours are needed to finish.
• Study at a post-high school institution (such as a community college) that awards "associate" or comparable degrees.
• Study in a language, liberal arts, fine arts or other nonvocational training program; at least 18 actual hours of attendance per week, 22 hours if most of the study time is spent in a laboratory.
• Study at a high school (9th through 12th grade) or elementary school (first through 8th grade); at least the number of classroom hours per week that the school requires for normal progress toward graduation; but see the sidebar in Section C1, above, "You Can't Use a Student Visa to Attend a Free Public School." (See 8 C.F.R. § 214.2(f)(6).)

As discussed in Chapter 11 on the need to maintain your status as a student, you will be allowed some breaks in your study regimen. These include time for school vacations, illness and exam preparation periods, but not for personally scheduled vacations that take you out of class. Also, the rules covering minimum hours at school can be changed if your school authorizes you to take fewer study hours for academic or medical reasons (including pregnancy).

c. Definition of a "Full Course of Study" for M-1 Students

A "full course of study" for vocational (M-1) students must "lead to the attainment of a specific educational or vocational objective." 8 C.F.R. § 214.2(m)(9). This objective can be a degree, a certificate or the completion of a program. On the way to that objective, you must spend your time studying in or at one of the following: (See 8 C.F.R. § 214.2(m)(9).)

• A community college or junior college of at least 12 semester or quarter hours of instruction per academic term, except during the last term if you need fewer hours to finish the program.
• A post-secondary vocational or other business school (not language training) of at least 12 hours weekly (or its equivalent), at a school that gives associate or other degrees (or gives credits that are accepted unconditionally by at least three institutions of higher learning).
• A vocational or other nonacademic curriculum (not language training) consisting of at least 18 hours of classroom attendance per week or 22 hours per week if the dominant part of the course is shop or laboratory work.
• A vocational or other nonacademic high school curriculum, for the minimum number of hours the school requires for normal progress toward graduation.

As discussed in Chapter 11 on maintaining your status, you will be allowed some breaks in your study regimen, such as for school vacations, illness and exam preparation periods. Also, your school can authorize fewer study hours if appropriate for academic or medical reasons (including pregnancy).

4. Your Stay Will Be Only Temporary

The toughest part of getting a student visa is persuading a consular or INS officer that you plan to return home when your temporary stay is over. It's especially tough because the law forces the person reviewing your application to presume that you want to stay in the United States even before he has met you. It will be entirely up to you to convince the official otherwise (for more on this issue, see Section A, above).

You will have to show evidence that your true, long-term residence is in a foreign country, and that you have ties to that country that will naturally pull you home when your studies are completed. These ties could include your family, a home, a job or any other personal situation or obligation. We cover how to provide documents proving such ties in the chapters covering application procedures, further on in this book.

EXAMPLE: Cheikh applies for a student visa to attend a six-month cooking course in New York. Cheikh is employed as a chef in a premier restaurant in his native African nation, and can show that he plans to return to that job when the course is over. His visa is granted.

EXAMPLE: Taye applies for a student visa to an American law school. His native country doesn't follow the American legal system. Taye owns no property and is unmarried. The visa officer believes that Taye plans to stay in the United States and look for a job as a lawyer, and denies his visa.

You don't need to show that you can't get the same education in your home country. Don't worry if your home country has perfectly good schools offering the same courses of study as your target school in the United States. The consular and INS officers will not consider this in approving your student visa.

5. You Are Able to Pay for Your Studies

You must show that your education will be fully financed and all your day-to-day living expenses (including the expenses of your spouse or children if they plan to come with you) will be paid without your having to work in the United States. (If your family will not be coming with you, and you normally support them, you may also be asked how they'll be supported while you're gone.) Although some students will be permitted to work during their student years, you cannot rely on this work to prove your visa eligibility. In fact, you probably won't know until you get to the United States what type of work you'll be able to get. The permitted work will probably be low-paying or a small part of your study program in any case.

Your financing can come from your own resources or from family, friends or scholarships. We'll talk about how to prove that these are actual, reliable resources in the chapters covering application procedures later in this book.

Find out how much money you can take out of your country. Some countries place a limit on the amount of money that you can take outside the country. The U.S. government is aware of these restrictions and will not grant you a visa if they don't think you'll be able to transfer sufficient funds to pay for your education. Talk to other foreign students or a lawyer in your home country to see whether there is a way to legally get around this.

Is There Another Visa That Might Suit You Better?

If you don't quite fit the eligibility criteria for a tourist or student visa, there might be another visa that would be appropriate. There are special visas for religious workers, temporary workers, exchange program participants and others. Unfortunately this book cannot cover all the possibilities, but there are other resources to help you.

EXAMPLE: Atahualpa and his Peruvian wind instrument group are invited to participate in a cultural-exchange program with the United States. At first Atahualpa assumes that a tourist visa will be appropriate. However, because the group will be performing, and will receive some compensation for their performances, a tourist visa will not work. Atahualpa does a little research and discovers that the Q-1 visa has been designed specifically for cultural exchange visitors. He successfully applies for visas for his group.

To begin your research regarding other types of U.S. visas or immigration benefits, see the list below. For more information, see U.S. Immigration Made Easy, by Laurence A. Canter & Martha S. Siegel (Nolo), or the INS website at http://www.ins.gov.

Table on Immigrant Visas omitted for online purposes.