The B1/B2 (Business/Tourist) Visa For Europeans: You Don't Need One, Unless You Need One

Nearly every day our office receives a call from a potential European client who has just been refused a B1/B2 visa at one of the many European consular posts. Typically they call in a panic, worried they have blemished their otherwise spotless record with US immigration officials.  The first question I ask is, "Why did you apply for a B1/B2 visa in the first place?" I receive a variety of responses ranging from, "I thought I needed one to travel" to "I thought I was doing the right thing by applying for a visa." I then ask if they were represented by a US immigration lawyer for their visa application. 99% of the callers reply, "No." The 1% who were represented by a lawyer typically retained a US immigration attorney whose primary office is based in the United States, where they are less familiar with immigration law at the consular level.

Why do the majority of European nationals not require a B1/B2 visa to travel to the United States?

The vast majority of European nationals are eligible to travel visa free under the Visa Waiver Program (VWP), sometimes simply referred to as "ESTA." Traveling to the United States with a valid ESTA application entitles the passport holder to spend up to 90 days in the US as a business visitor or holiday-maker. It is important to note that business visitors cannot engage in productive work. They may conduct a very limited number of business transactions while in the States.

Consular posts place intense scrutiny on any tourist visa application made by eligible Visa Waiver nationals. Immigration officers take the view that nationals of Visa Waiver countries already can stay in the US for up to 90 days without a visa and there is no reason for them to apply for a visa unless they have an underlying immigrant intent (i.e. they want to permanently live in the United States).

For this reason, the majority of the B1/B2 tourist visa applications are refused unless there is some genuine reason for the applicant needing the visa. Simply wanting a visa to stay in the US for six months would not be considered a valid reason for making the application.

When would a Visa Waiver national require a tourist B1/B2 visa?

There are certainly instances when a national of a Visa Waiver country does require a tourist visa. Take the below examples.

Simon is a UK national living in London. Eager to start a business in the United States he applies for the E2 Treaty Investor Visa through the US Embassy in London. Unfortunately, Simon did not retain the services of an E2 visa lawyer and his application was refused. Simon abandons his desire to start a business in the US but now simply wishes to travel to Florida to visit Disney World with his family.

Shortly before his trip, Simon completes a new ESTA application. The application asks Simon if he has ever been refused a US visa. As such, Simon answers in the affirmative and submits his ESTA application. Unfortunately for Simon, his ESTA is refused. Simon is not eligible to travel under the Visa Waiver Program and he must now apply for a visa even to travel to the US to visit Disney World as a tourist.

Domenico is national of Italy living in Naples. Domenico's best friend from University, Jamal, invites Domenico to his wedding taking place in Sudan on 1 July 2018. After returning from Jamal's Sudanese wedding, Domenico and his partner Chiara become engage and wish to mark the occasion with a road trip across America. Domenico is not eligible to travel under the Visa Waiver Program, as he visited Sudan on or after 1 March 2011. He must first apply for a tourist visa before entering the country.

In addition to the above scenarios, nationals with law enforcement or medical issues may also be ineligible to travel under ESTA. It is advised they seek advice from a qualified US immigration lawyer regarding their eligibility to travel.
​
To learn more about ESTA and the various US visas available, contact Barella Global to speak with a US immigration lawyer at our London or Brussels office. We may be reached via email at [email protected] or by telephone at (UK) +44 (0) 20 3026 0054 and (Belgium) +32 (0) 2 808 8053. For additional information please visit our website at http://www.barellalaw.com.

---