Whether you have been living in the U.S. on a work visa or you are applying for the first time, a denial can be an unexpected and unpleasant surprise. There can be many different reasons for visa denials, such as failure to meet the visa eligibility requirements, security concerns from government agencies or inadmissibility due to criminal issues.
I was living in the U.S. and my work visa was denied, can I come back on a B visa to get my things?
One scenario is when a foreign national has been living in the U.S. while working and needs to return to gather their things, sort out their housing arrangements, get their pets or other things of that nature.
If you already have a valid B1/B2 visa in your passport, you can try to fly back to the U.S. to make these arrangements, however, you should be prepared with evidence that your trip is temporary and that you do not intend to resume working in the U.S. For example, you could bring a letter from your company confirming you are no longer employed and a letter from your landlord confirming the end of your lease. You may also want to wait a few weeks before flying back to the U.S., as the sooner you try to re-enter, the more likely it is they will suspect you are coming back to work.
If you plan to use ESTA to enter the U.S., it is important to note that your ESTA application will likely be denied because of the work visa denial. Even if you have a valid ESTA, the law requires that you reapply for ESTA if any of your answers to the security questions have changed since your last application. In order to re-enter the U.S., you would need to submit a B visa application at the U.S. Consulate.
My work visa was denied and my employer asked if I can come to the U.S. on a B-1 visa
Another scenario we often hear about is when an employee’s work visa was denied or the visa application is delayed, and the employer wants to know if the employee can come to the U.S. to work temporarily as a B-1 business visitor or on ESTA. The B-1 business visitor visa does not permit a foreign national to work in the U.S. and cannot be used in place of a work visa such as an E-2, L-1 or H-1B.
If the U.S. employer still wants the employee to come to work in the U.S., they should consider reapplying for the work visa after remediating the issues that caused the denial. If the issue is a delayed appointment, the applicant can try to get an expedited appointment at a U.S. Consulate based on urgent business needs.
Takeaways
After a work visa denial is it important to speak with your immigration attorney and employer to determine your next steps. If you decide you want to return to the U.S. on a B visa you should carefully consider the reasons for your return and make sure they align with the appropriate activities for either a B-1 or B-2. If you try to enter the U.S. right away after your denial you should anticipate additional questions at the border and should come prepared with documents to demonstrate that you will not be working without authorization.
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