Quick Tip: Visa Versus Status

A visa and status are not the same. Many foreign nationals confuse the two believing that the visa document initially confers them status and that their status expires at the same time as their visa. A foreign national’s confusion about status can lead to her overstaying her period of authorized stay in the United States, subjecting her to severe penalties if her overstay exceeds 180 days.

Three different documents control a foreign national’s ability to remain temporarily in the United States: (1) the Form I-94, Arrival/Departure Record, (2) the nonimmigrant visa foil “stamped” in her passport, and (3) the Form I-797 approval notice. Each of these documents has an expiration date, and each document may expire at a different time than the others. Further, each document confers a different privilege to the foreign national, so it is important to understand which privilege is set to expire when the validity end date of any of these three documents is near.

The I-94 Card

The Form I-94 is a small white card issued by Customs and Border Protection (CBP) at an airport or land border. CBP stamps the I-94 card and then staples it into the foreign national’s passport. The stamp includes the date that the foreign national entered the country, her nonimmigrant status, and an “admitted until” date handwritten by the CBP officer. The I-94 card and “admitted until” date control how long the foreign national is allowed to remain in the United States on the single visit for which it is issued. Foreign nationals who have lost their I-94 card can now access their most recent I-94 record and travel history electronically on the CBP website. (Click here to search for your electronic I-94.) Foreign nationals who stay in the United States after the I-94 has expired are considered overstays or “out of status.” Being out of status can subject a foreign national to severe penalties, including being forced to remain outside of the United States for 3 or 10 years.

The Nonimmigrant Visa

Unlike I-94 validity dates, the period of visa validity has no relation to the period of time a foreign national may be permitted to stay in the United States. For example, an H-1B visa holder whose visa may expire a week after entry may nevertheless be admitted to the United States for up to 3 years, the maximum period of admission allowed by immigration regulations.

The Department of State issues nonimmigrant visas at embassies and consulates outside of the United States. The visa foils are then “stamped” into the foreign nationals’ passports. The visa only controls how long the foreign national may travel to a U.S. port of entry and ask permission to enter the United States. In this way, the visa is merely a travel document; it does not confer status. A foreign national can only have status while inside the United States. Status is the name of the permission CBP (or USCIS) gives the foreign national to enter or remain in the United States. The period of authorized stay is thus reflected on the I-94 card issued to the foreign national when she enters the country or on the I-797 approval notice for those who submitted applications to change or extend their status initially conferred to them by CBP.

If the visa does not control status, then what do the validity dates mean? Visas generally have validity dates based on the validity dates of the underlying petition (see I-797 Approval Notice section below), unless reciprocity requires that the visa be issued for a shorter period. Reciprocity is the State Department’s rule requiring restriction on visa validity dates to foreign nationals whose home countries limit the privileges of U.S. citizens under similar visa programs. When a consulate must restrict a visa to a shorter period, the visa should state “Petition valid to [date],” indicating that the visa may be extended as many times as is necessary for travel until the underlying petition expires. Most visas now have a note “PED” followed by a date. PED stands for “petition expiration date.”

The I-797 Approval Notice

U.S. Citizenship and Immigration Services (USCIS) issues approval notices on the Form I-797. Some types of status require an employer to serve as a petitioner, like employment-based temporary status, including H-1B, L, E, O and others. In these instances, the employer-petitioner files a petition with USCIS and USCIS communicates the approval of the petition on the Form I-797, which is printed on an 8 ½ x 11 sheet of multi-colored cotton bond paper. On the bottom of the I-797 approval notice, there are validity dates, with the end date being the expiration date for the approved petition. Other temporary statuses, such as the B-1/B-2 and TN, do not require a petitioner so there is no “petition expiration date.” Nevertheless, in these types of cases, the I-797 approval notice still includes a validity end date on the bottom of the notice.

The petition expiration date or validity end date controls both how long the foreign national may apply for a visa to travel to the United States, and also sometimes controls how long the foreign national may remain in the United States, depending on when the I-797 was issued.

Last in Time Rule

Be careful. As stated above, the document that controls the foreign national’s status may be either the I-94 card or the I-797 approval notice (if for a change of status or extension of status). The document that controls is the one most recently issued. Consider the following hypothetical. A foreign national in H-1B status recently received her I-797 approval notice extending her status until October 1, 2019. Two weeks later, she travels home to India for a last minute summer vacation. Upon re-entering the United States, CBP issues her an I-94 card valid only until January 12, 2017 – the date her passport expires. In this scenario, the foreign national’s status expires on January 12, 2017, and not October 1, 2019. If she remains in the United States until October 1, 2019, she will have been out of status and accrued unlawful presence for more than 1 year and be required to remain outside of the United States for 10 years.

This blog posting is offered for informational purposes only. It does not constitute an attorney-client relationship. Also, keep in mind that this is an INTERNET BLOG. You should not rely on anything you read here to make decisions which impact your life. Meet with an attorney in person to obtain competent personal and professional guidance. To meet with one of our experienced immigration attorneys call 855-428-3762.