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While that question may seem simple enough to answer, in many
instances individuals may be mistaken or unaware of when their
lawful immigration status in the United States expires. A common
answer might be, “When my Visa expires,” which may happen
to be true in some circumstances, but that is not always the
answer. It is important for any foreign national in the United
States in a temporary, nonimmigrant status to understand how the
period of admission to the U.S. is determined.
Travelers to the U.S. may – understandably – simply
look to the Visa affixed in their passport to try to figure out how
long they can remain. This is not advised, and is legally
erroneous. A Visa is simply a document issued by a U.S.
consulate/embassy abroad, which allows an individual to travel to a
U.S. port of entry to present herself for admission to the U.S.
Think of a Visa as a house key: it may help you open the door and
gain entry to the house, but once you’re in the house, the key
has nothing to do with you remaining inside.
Admission to and immigration status in the United States is
governed by a document known as an I-94, Arrival-Departure Record.
An I-94 can be issued either: 1) by U.S. Customs and Border
Protection at a port of entry to an individual seeking admission to
the U.S. from abroad; or 2) by U.S. Citizenship
& Immigration Services to an individual seeking a change of
status or extension of status from within the U.S.
In the former scenario, the I-94 takes the form of an electronic
record entered by CBP and available to the traveler online upon
their admission to the U.S.; those who are admitted to the U.S. in
a temporary, nonimmigrant status may access their
I-94 online any time after entry by entering basic biographical
information that can be found on their passport. The online I-94
will show the traveler’s date of entry, nonimmigrant
class/category of admission, and the date until which they were
admitted. This date dictates how long the individual may lawfully
remain in the U.S., subject to any subsequent changes or extensions
of status that may be granted after admission. The online I-94
(which may be printed out to have a hard copy in hand) serves as
legally acceptable evidence of one’s lawful immigration
Another important issue to keep in mind with respect to I-94s
issued by CBP is that, while the period of admission may
frequently correspond with the expiration date of the Visa in the
traveler’s passport, there are several situations in which the
actual period of admission will be shorter than
the validity of the Visa. As one common example, for individuals of
many nationalities, U.S. embassies will issue a B-1/B-2 visitor
Visa valid for a period of 10 years. However, when presented with
that Visa to seek entry to the U.S. at a port of entry, CBP will
limit the actual period of admission to a maximum of 6 months.
Therefore, a traveler simply looking to the expiration date of the
Visa may assume that he or she is authorized to remain in the U.S.
for 10 years as a visitor, when in fact his/her immigration status
would expire after 6 months.
Another common pitfall occurs when the traveler’s passport
expires before the Visa and/or underlying petition expires. Take,
for example, an individual who is the beneficiary of an approved
H-1B visa petition filed on his behalf by a U.S. employer that has
a 3-year validity period, from October 1, 2022 to September 30,
2025. That individual can use that approved petition to obtain an
H-1B Visa from a US consulate/embassy, and in many instances that
Visa will be valid for the same period – until September 30,
2025. If, at the time of seeking entry to the U.S., that
individual’s passport expires prior to
September 30, 2025, CBP will limit the period of admission to the
passport expiration date. If the traveler is
unaware of this practice, he may operate under the assumption that
his immigration status is valid until September 30, 2025, when in
fact it would expire prior to that date.
This can cause many individuals to unknowingly fall out of
status, and can have significant repercussions for both the foreign
national as well as his employer if the individual remains employed
beyond the expiration of his lawful status. Therefore, it is
critical every individual traveling to the U.S. on a temporary,
nonimmigrant Visa access his/her I-94 online as soon as possible
after entry, to ensure they are aware of their period of admission
and to verify that the terms of their admission are correct (CBP
frequently makes errors in the I-94 process, admitting individuals
in the wrong category/classification or for the wrong period, and
the earlier these errors are discovered, the easier they are to
For I-94s issued by USCIS, upon the approval of an
individual’s application to change or extend nonimmigrant
status, USCIS will issue an Approval Notice (Form I-797), which
will include, on the bottom, a tear-off portion of a new I-94
showing the classification/status for which the individual has been
approved, and the relevant validity period. A frequent source of
confusion is that the online CBP I-94 retrieval tool does
not reflect any subsequent changes or extensions
of status that may be granted by USCIS. In other words, if someone
has applied for and been granted a change or extension of status
after entering the U.S., it is the I-94 issued by USCIS that will
govern, and not the online I-94 that may have been issued by CBP at
the time of initial entry.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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