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 status.
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 fix).
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.
If you have questions about the immigration status or validity period for yourself or your employees, contact the Harris Beach immigration team to discuss the options that may be available to you. Our Immigration Law Practice Group includes immigration attorneys who work across New York State in our Albany, Buffalo, Ithaca, Long Island, New York City, Rochester and Syracuse offices. Our immigration lawyers focus on strategies – including immigrant visas for permanent U.S. resident status and temporary visas for foreign nationals – to ensure companies are able to hire, transfer, and retain the brightest and best non-U.S. talent.