About Visa Waiver and B1/B2 Visa

Hello,

I'm a Spanish citizen currently staying as a tourist in Dominican Republic. Before I get into my question, let me list my recent moves, as they are relevant to the case:

• Lived in California for 5 years on a Student Visa.
• Visa ended so went to Spain for 3 months.
• Flew back to the US on the Visa Waiver Program for 3 months.
• VWP ended so been in the Dominican Republic for 3 months.

Now, during my student stay in the US I made a film, which I am now finishing. I need to get back to California so I can complete work on the film, submit to festivals, have meetings, etc. Also want to see my friends and spend time there with my filmmaking peers. I guess I can go back on the VWP again, but I would like to get 6 months to have time to complete all these things. I will not be working, I have money saved up.

That said, I'm thinking of applying for the B1 or B2 6-month Visa here, at the US Embassy in the Dominican Republic, but I am afraid this may be useless... Here are my concerns:

• B1 or B2? Should I explain my situation with the film to justify the need for 6 months or would it make them suspicious that I would want to stay in the US indefinitely? Maybe I should omit the B1 (business) and go for the B2 (tourist); telling them that I want to travel along the West Coast, which I didn't get a chance to while I was studying and didn't have money.

• I assume the fact that I am a Spanish citizen applying in the Dominican Republic will raise some flags. Specially since I haven't been to Spain in between my trips US-DR-US. Am I correct?

• If I decide to pass on the B1/B2, will I have trouble with a new Visa Waiver trip? I have been out of the US for 3 months, and I never overstayed my trip, but Dominican Republic is considered adjacent territory and doesn't reset the 90-days within the VWP; so they may suspect I just went to an adjacent territory for a couple of months of ''vacation'' and now want to return to the US to continue ''living'' there.

I know this is a rather complex question, so thanks a lot in advance for taking the time to read and hopefully respond. Any ideas will be very helpful.

Cheers!

This website gives a brief description of America's many types of temporary working visas.
http://travel.state.gov/content/visas/english/employment/temporary.html

The H-2B: Temporary Non-agricultural Worker is probably the easiest one to get but to get it you must first receive a job offer from a US employer, typically in a tourist-related industry.

The P-3 is the one most appropriate for you, but the H-2B is quite common. (Note you actually have to work for the employer and finish your film on your own time.)

You can find a greatly detailed description of the H-2B here:
http://www.uscis.gov/working-united-states/temporary-workers/h-2b-non-agricultural-workers/h-2b-temporary-non-agricultural-workers

Hello longislandbob,

Thank you for taking the time to reply but, unfortunately, your answer is not relevant to my case. You talk about work visas that have nothing to do with my situation and what I'm trying to accomplish.

Thanks anyway! Hopefully somebody else can help me out. :)

A P-3 visa is specifically designed for people in your situation.

The H-2B can also be used legally if you get a job being employed by someone else who has a need for temporary workers. That would allow you to finish your film on your own time.

The H-1 visa is not legal for your needs whatsoever unless you have an advanced degree and meet other conditions.

By rule, you have overstayed the VWP. Whether you will be denied upon entry is up to the officer you receive, but the visa is a good path to take.

The B1 visa is for business, such add attending conferences or negotiations. The question is whether your film falls under "media," which is another via altogether. You should talk to an attorney.

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I think maybe my original post was confusing with all that information re. my situation, and that's why you are insisting on these Visas.

The P-3 Visa is for performers/teachers that are part of a cultural program or endeavor (Not my case) and it also requires that I have a US employer or sponsor (Not my case either). I'm the producer and owner of my film, therefore I am not a performer/teacher, nor is there an employer in US for me. As I mentioned, I have no intention to work while in the US.

Again, not trying to start an argument. Just thanking you for your time and hoping that someone can answer addressing the types I mentioned; VWP and B1/B2 Visas.

Thanks!

Hey bzookaj,

Do you think I have overstayed my VWP just because I am in the Caribbean? How can this be? I left the US before the 90 days.

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Your situation is complicated and may require the services of an immigration attorney. A lot will depend on exactly what "complete work on the film, submit to festivals, have meetings, etc." means. Anything involving film making starts to get involved as there are a whole lot of specific visa issues for filming.

A lot is going to depend on exactly what is involved with finishing the film and what is involved with trying to sell it or market it to festivals. Whether or not you get any money form a US source will be an issue.

Many people get a combination B1/2 visa which solves the problem of which one to apply for.

You can do anything under the VWP that you can do with a B1 or B2 visa. BUSINESS TRAVEL TO THE UNITED STATES covers which activities are permissible under a B1 visa.

There are some very specific requirements for people who are involved in film making, including post-production. You may need an I, O, P or H visa.

Since your case is unusual, I'd strongly urge you to pay the money to consult with an immigration attorney, or even an immigration attorney specializing in the film industry.

Do you think I have overstayed my VWP just because I am in the Caribbean? How can this be? I left the US before the 90 days.

The 90 days you are permitted to stay includes time spent in Canada, Mexico,or "adjacent islands" after you have been admitted to the US. The adjacent islands are basically the Caribbean.

Thanks!

Re. my specific work on the film: I have to supervise the latest stages of post-production (but will not be performing work myself), submit the film to festivals and attend some meetings re. the film. In none of these cases will I be working for an employer nor getting paid or receiving a salary.

Correct, but only in the case of short trips within the 90-days of the VWP. This is done so that people midway through the VWP would not go to Mexico for a week and go back into the US under a new VWP, thus resetting the 90 days. Adjacent territories ensure that the week in Mexico counts within your original 90 days. However, if you go to an adjacent territory on your 89th day and stay there for week and try to reenter the US under a new VWP, although technically legal, you will most certainly be denied entry on suspicion of trying to permanently live in the US, and attempting a ''visa run''. One of my questions is whether my 3 months in the Caribbean will be enough time to avoid this suspicion.

I can't find official information stating that one must leave the US and adjacent territories before the 90 days. If you guys can refer me to a link that would be great! (Not the Wikipedia article, please)

Thanks!

#4 bzookaj is wrong to say that you have overstayed the VWP, you have not as you made a timely departure from the US before your 90 days were up. The problem is that by the rules of the VWP you do not get another 90 day VWP entry until you have left North America, which you have not by being in the Dominican Republic. There is a difference between the de facto and de jure interpretations of the VWP but the US government only every mentions the de jure interpretation although most (but unfortunately not all) US border officials actually use the de facto interpretation, since they recognize that the rules were a poorly designed attempt to stop visa runs. Lots of foreigners in Canada on Working Holiday Visas have the same problems and questions. It is likely that 3 months out of the US is probably enough that you will get another 90 day VWP entry, although your history over the last year of spending half your time in the US is pushing the boundaries of what you can get away with.

marka55,

Thanks a lot for clarifying that. I was worried this might be true, even though it seemed strange.

I'm guessing the de jure interpretation is that I left the US lawfully, but in practice (de facto) they will look at my Dominican Republic trip with suspicion. Am I correct?

I'm guessing the de jure interpretation is that I left the US lawfully

The de jure is that if you don't leave 'North America' before returning to the US, then you have not complied with the requirements of the VWP.
The 'de facto' is that all entry is at the discretion of the official you receive.

#4 bzookaj is wrong to say that you have overstayed the VWP

Maybe poor choice of words, but since the OP has planned to immediately returned to the US, it is accurate.

#14 My observations about the de facto interpretation of the VWP rules are based on several VWP entries to the US by bus from Canada, so I get to observe not just my treatment but also lots of other passengers while waiting in line. The US border official can undoubtedly see on their screen that I made a timely departure from the US some months before, at the end of my last VWP entry but how do they know if I actually left North America? I did leave North America (by non-stop flight from Canada to the EU) between my US entries and indeed I carry proof but I have NEVER been asked to show it; also the US border official has NEVER tried to look at the stamps in my passport (there are too many to do that on the sly and it would not do them much good as EU countries do not do entry/exit stamps for EU passports) hence I conclude that if a decent interval has elapsed since one left the US then they generally do not enforce the leaving North America part of the VWP rules. I have also talked to other bus passengers on Canadian Working Holiday Visas, who have not left North America during their one year WHV but still get more than one VWP entry. I think US border officials look at how much time since your last departure from the US (three months is probably a decent interval, three weeks is probably not) and what portion of the year you have spent or will spend with the VWP entry you are seeking in the US (less than 25% is probably trouble free, over 50% is probably a red flag) to decide whether or not to ignore the leaving North America part of the VWP rules.
#15 Yes, overstayed was a very poor choice of words because the OP has NOT overstayed, the only issue is whether or not he will get another VWP entry, there is absolutely no question of an overstay.

Again, thanks a lot to everyone, specially marka55, for the comprehensive replies. This has helped me greatly in getting a sense of my chances of being rejected.

Cheers,

Hello everyone,

Just wanted to wrap it up and post the final outcome, hoping that this will help future travelers in a similar situation.

I went for the Tourist Visa. I filled out the application online and, of course, was absolutely honest about every single question, including my last 87-day stay and my trip to Dominican Republic.

I went for the interview with a folder full of documents (Financial support letters, Bank letters to prove good balance, Spanish work contract, invitation letters from my host in US and from my filmmaking partner, long etc.). My whole approach was just telling the truth about me needing 6 months to both spend time there and finish my film and send it to festivals and other contacts. The interview lasted less than 5 minutes and the interviewer didn't ask to see a single document to prove my story. She asked me my marital status, who was paying for my trip, why I needed to go and what's my father's occupation, but again, she just believed me without checking any documents.

Finally, I was awarded a 10 year B1/B2 Tourist Visa, with a 6-month maximum stay per trip. My passport was mailed to me (with the new Visa) within two business days. Overall, very satisfied with the experience!

Thanks again to everyone who helped.

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