Denied: A B1/B2 Visa Denial Q&A

27 February 2018 By Hillary Hoffower

Dockwalk receivedan outpouring of emails in response to our article on handling B1/B2 visa denials. The takeaway? The quest for the B1/B2 visa is complicatedand is unique to each person’s situation, plus the acceptance and guidelines ofB1/B2 visas vary depending on the consulate and their interpretation.

“There appears to be no consistency from embassy to embassy,and it is painfully obvious that the people carrying out the interviews are notfully conversant with their own rules,” says one chief engineer who, despitehaving all relevant yacht paperwork showing his vessel was privatelyregistered, was told at the U.S. embassy in Paris last year that he wasn’tentitled to a B1/B2 visa, and would need a C1/D visa — which only allows for 29days continuous presence in the U.S. (As a reminder, “…The [C1/D1 Visa] may bedenied as well, but a crewmember on a private vessel may not be eligible for aC1/D1 to work aboard that vessel,” says Gina Polo of Buchananan Ingersoll & Rooney PC.)

The engineer’s research across several U.S. embassy websitesyielded different information on the subject. After eventually reapplying for aC1/D visa at the same embassy, he also asked for a B1/B2 visa to be added tothe application. He took all his yacht papers, including a letter of employmentand the U.S. cruising permit — all of which he had presented during hisprevious application — and now he has both a C1/D visa and a B1/B2 visa.

Sounds confusing, right? His isn’t the only stickysituation. So, we reached out to our team of experts for some insight on someof the more common scenarios.

Q: Should a newbieget a B1/B2 visa before heading to the U.S.?

One aspiring crewmember from Sweden (a European Unioncountry) hoping to enter the superyacht world as a deckhand/watersportsinstructor wants to know how B1/B2 visa denials will affect him as a rookiestarting out in the industry. Because many of the guides he’s read recommendgoing to Fort Lauderdale, his dilemma seems to be whether or not to get a B1/B2visa before heading to the U.S.

“Reasons to get the visa would be that captains (apparently)prefer to hire crew that already have the visa,” he says. “Reasons against itis that it seems much harder to acquire the visa without already having a joband if I apply and get denied, that denial on my record might give me an evenharder time to get a visa later when I’ve actually landed a job. Also, by thesound of things, it’s illegal to look for work and do day jobs on a B1/B2visa.”

He makes valid points on both ends, so what should someonein his situation do?

A: Look for work inEurope.

Angela Wilson, crew agent and marketing director of Elite Crew International, reminds usthat certain nationalities, including Sweden, fall under the Visa Waiverprogram and aren’t required to have a B1/B2 visa to go to the U.S. for holiday.“Therefore, without him having a letter of employment from a yacht and theadditional documentation required, he’s not eligible for that visa,” sheexplains. “If he applies for the B1/B2 visa without having a valid reason forrequiring one, he most likely will be denied, which may affect his chances ofobtaining one in the future.”

She recommends that he remains in Europe and focuses onemployment options there, especially since he’s correct in thinking that it’sillegal to look for work in the U.S. on a B1/B2 visa — if caught, he’ll bedeported. “I think his chances of finding a captain willing to help him withthe visa is unlikely because he doesn’t have prior yachting experience,” sheadds.

She recommends that he base himself in the Med, such asAntibes, Palma, or Barcelona. While the summer season hasn’t started up yet —meaning there won’t be a lot of employment options for someone new to theindustry — when it picks up around April/May, he’ll have more luck at securinghis first position in yachting.

Q: Does getting a B1visa and not a B2 visa preclude you from reapplying to a B1/B2 visa?

A Y3 chief engineer previously held a B1/B2 visa, whichrecently expired. He applied for a B1/B2 visa at the U.S. consulate in Durban,South Africa, after he was offered a temporary position on a sailboat. Hesubmitted the boat’s paperwork and itinerary.

However, he only received a B1 visa valid for one year.Here’s the catch — on the visa, there’s an annotation with the name of thesailing yacht, which links the visa’s issue to that particular yacht.

“Since then, the position on this sailboat was given toanother person due to my visa taking so long to process, as I could not confirmmy commitment to the sailing yacht in a timely manner,” he says. “I now have aB1 visa, which I cannot use as the annotation links the issue of this visa tothe sailboat’s paperwork and itinerary submitted during application.”

He points out that many engineer positions require or prefercandidates with a B1/B2 visa, yet he now he has the “useless” B1 valid for thatyear. “Without boat papers, I cannot try to apply for another B1/B2 visa,” hesays. “This is limiting my employment prospects to the Med or internationalyachts that don’t cruise or visit the U.S.”

A: Not necessarily.

As attorney Dr. SaraCoen-Giovanelli explains, the B visa has the subcategory of B1 and B2, andthey usually go together — a simple “B” classification is sufficient for theperson to enter the country on either B1 (business/boat captain) or B2(tourist/pleasure).

According to her, if a person gets denied a B2 visa, it’sprobably because they said they were coming as a crewmember, which is a B1activity. They should just ask for a B classification and not deal with thesubcategories.

“If the person spent too much time in the U.S. (more thanthree to four months at every entry or six to seven months in the compoundduring a single year), and they denied his B visa, then they will not renew hisB visa (any subcategory),” she says. “The person should apply in one year orprove a ‘significant change in circumstances’ (new work, family ties, etc. tohis home country) for the visa to be reconsidered.”

Q: If one visa isdenied, can the applicant then openly, and without prejudice, apply for anothertype of visa?

“When my crew were denied visas, there is the obvious impactof not being able to transit the U.S., but it also has an even greater detrimentaleffect on the applicant,” says one captain.

This came to light when one of his stewardesses wanted to goon vacation, which required her to transit through the U.S., necessitating anESTA application. However, one of the questions asked on the ESTA form is,“Have you ever been denied for any type of U.S. visa before?” She truthfullychecked yes and was immediately denied an ESTA, and was therefore prohibitedfrom travel through the U.S. to her final New Zealand destination.

Similarly, another crewmember told us they were rejectedlast year for a B1/B2 visa. Just a few weeks ago, they were consequentlyrejected for an ESTA visa waiver because of a previous rejection. “I basicallycan’t get into the States even just to transit through an airport,” she says.“It’s such a bummer.”

A: It depends.

Unfortunately, in an instance like this, the best advice isgiven on a case-by-case basis. “There’s really no broad brush advice to begiven to someone refused a visa,” says Polo. “The person can reapply again, butthe likelihood of success or failure will depend on the specifics of each caseand the reason for the refusal of the visa.”

ESTA determines the eligibility of visitors to travel to the U.S. under the VisaWaiver Program (VWP). The U.S. Department of State stateson its website that, “A recent visa refusal for any reason could result indenial of ESTA authorization, additional review of the port of entry, or denialof admission to the United States. If you are uncertain if you qualify for VWPtravel, you may choose to apply for a visa.”