Our office serves many first-time and returning reentry permit applicants and one of the most frequently asked questions or concerns related to the ability to extend a reentry permit after its initial term (of often two years) and about the validity of subsequent renewal reentry permit documents. The good news is that there is no limit on how many times a reentry permit can be renewed but there are rules and restrictions on the validity of reentry permit renewal documents.
Unlimited Reentry Permit Renewals Are Permitted
There is no restriction on how many times a reentry permit can be renewed. In theory, and subject to renewal term limits and renewal frequencies described below, a green card holder can apply for and obtain an unlimited number of reentry permits, thus extending their stay abroad for a number of years while preserving their green card status.
Even though a green card holder is eligible to apply for a renewal reentry permit for a number of times, each individual application is reviewed separately, on its own merits, and a prior reentry permit approval does not guarantee subsequent reentry permit renewal approvals. However, as long as the application requirements are met and the application is properly prepared and filed and as long as the applicant submits to the required biometrics, chances of approval of a reentry permit application are good.
Reentry Permit Validity – 1-Year vs. 2-Year Terms
While the reentry permit may be renewed for a number of times, without limit, there are certain limits on the terms of renewal reentry permits. For most reentry permit holders, their first, second and perhaps even third reentry permits will be valid for two years. However, subsequent reentry permits may be valid for one year only. The government has put in place regulations which restrict the validity of a reentry permit depending on how much time the applicant green card holder has spent outside of the US. The effect of these regulations are to make it harder (and more expensive) for green card holders to remain outside of the US for more than a few years.
Here are the rules. If a green card holder has spent more than four years total outside of the US since becoming a green card holder (or during the last five years, whichever is less), then the reentry permit will be issued with 1-year validity term. Otherwise, for folks who have spent outside of the US less than four years, the reentry permit validity term will be the default of two years.
There are some very limited exceptions. If the green card holder is employed by public international organization of which the U.S. is a member or is a professional athlete, then the reentry permit may be issued for two (2) years despite extended periods of absence from the US.
As a result of this rule, and with a little bit of proper application planning, many green card holders are able to get their first two to three reentry permits with a 2-year validity. Green card holders who wish to reside outside of the US for a number of years can still do so and retain their green cards, but they will need to renew their reentry permits every year, after the first four, and each reentry permit renewal becomes an annual filing expense plus a required trip to the U.S. (or Guam, for some) for biometrics.
Contrary to some Internet myths and stories, there are no limits on how many times a reentry permit can be renewed. However, there are validity term restrictions on reentry permits after spending four years or more abroad so proper planning for renewals is essential. For green card holders who do not mind the cost and the inconvenience to apply and travel to the US for biometrics every year, it may be possible to remain abroad for a substantial period of time and still keep one’s green card status.
Our office has developed expertise in handling reentry permit in a variety of situations, including multiple renewals, and we will be happy to analyze a particular situation and provide options. Please give us some details for a free attorney reentry permit case review and options or feel free to contact us with any other questions or concerns.No comments
Visa Processing System Experiencing Problems – Global US Visa and Passport Processing Delays Possible
We are getting updates from the U.S. Department of State and from other sources that the global visa processing system used by the Department of State to process U.S. visa applications and passports is experiencing technical problems — as a result, U.S. Consulates around the world are unable, at least temporarily, to complete visa application processing.
Database Glitch Causing Increasing U.S. Visa Processing Backlogs
The database which seems to be causing problems is the State Department’s system of record and is used to approve, record and print visas and other documents to ensure that national security checks are conducted on applicants.
The problems have reportedly started on Saturday and the inability to properly process visas has already created a huge backlog of visa applications waiting to be processed. We are hearing that there may be as many as 50,000 visa applications being on hold in one country only (and growing), as a result.
Are You Experiencing Delays? Share Your Experience With Us
Are you experiencing delays with your U.S. visa or passport processing as a result of this? Are you getting any information from the U.S. Consulate? Please contact us and share your experience. You can also tweet us at @cilawgroup. We are trying to combine information from various parts of the world so that we can share with our contacts in Washington, DC and also to report to our readers.
At this time, it is unclear how long this outage would last. Hopefully, it is something which can be fixed over the next day or two so that normal operations would continue. However, we caution that residual delays in U.S. visa processing may still linger for days or weeks, especially considering the growing backlog of U.S. visa cases around the world for each hour the system remains down. If you are planning to apply for a U.S. visa or a U.S. passport, please ensure you plan early in advance and take into consideration that there may be delays in the process.
We will be providing updates on this outage as we have more information. Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help, please feel free to contact us.No comments
The Department of State (DOS) has just confirmed that due to increasingly heavy demand by Canada-based visa applicants, the seven U.S. visa processing posts (U.S. Consulates) in Canada are extremely limited in their ability to accept TCN cases during the peak demand period of June, July, and August.
TCN refers to “third-country nationals” or non-Canadians who seek to apply for a U.S. visa stamp at a U.S. Consulate in Canada. Normally, U.S. Consulates prefer for a national of a particular country to appear for a visa stamp at the U.S. Consulate in their own country or at the Consulate serving their country. When a foreign national appears for a visa stamp at a U.S. Consulate in a third country, where such practice is accepted, the applicant is referred to as a “third-country national.”
According to the Department of State, U.S. Consulates in Canada encourage such TCN applicants to seek appointments elsewhere in the world, such as in the applicant’s home country. Canadian posts offer increased appointment availability for TCNs during non-peak processing times, such as October and November, and January through May. Emergency cases may seek consideration for scheduling an interview at a Canada post by visiting canada.usembassy.gov.
While it is important to stress that visa interviews and appointments by third-country nationals already scheduled at a U.S. Consulate in Canada will be honored, our office would like to stress proper planning for any international travels for those foreign nationals who are in the U.S. but who would need to obtain a U.S. visa stamp before their return to the U.S.No comments
Customs and Border Protection (CBP) just announced that they have launched an extension of their electronic I-94 arrival/departure system where now nonimmigrants can obtain their arrival/departure history going back five years from the requested date. As a result of the new enhancement to the electronic I-94 retrieval system, nonimmigrants (only) can access their entry and departure dates, together with the CBP port of entry for each travel in or out of the United States for the previous five years.
How to Access the Travel History?
Once they visit the I-94 website, travelers will have to enter their name, date of birth, passport number and country of citizenship. The system will then display a list of all U.S. entry and exit dates for the previous five years, in a format similar to the example below.
Please note that the travel history is available only for nonimmigrants such as B-1/B-2, H-1B, H-4, L-1, P-1, etc. The information is not available for lawful permanent residents (green card holders) or U.S. citizens. Also, note that this website provides information for travel history only — it does not reflect immigrant status history, such as extensions or changes of status.
At the same time, the I-94 website allows nonimmigrants to continue to retrieve the electronic version of their I-94 card as a record of most recent entry into the U.S. (see our previous articles on this topic and also about what kind of documents one must carry while in the U.S.)
How Does CBP Have This Information?
It may not be a surprise to many, but CBP collects a number of pieces of information for every traveler who is arriving or departing the United States, especially via air. Airlines are required to report passenger information to CBP and traveler information is stored during immigration border processing. Similarly, while there is no requirement for biometrics screening upon departure from the U.S. CBP is working with the airlines and other carriers to get a record of passengers and track departure records.
If a traveler discovers that an exit/entry date is missing from the travel record, they can file a Form I-102, Application for Replacement/Initial Nonimmigrant Arrival-Departure Document with U.S. Citizenship and Immigration Service.
CBP’s decision to make available nonimmigrants’ five years of travel history is interesting and is likely to allow them to decrease their backlog of Freedom of Information Act (FOIA) requests where nonimmigrants have been seeking to obtain such records for one reason or another. In fact, the I-94 system now even allows convenient cancellation of a pending with CBP FOIA request. Our office will continue to monitor developments surrounding this new capability of the I-94 CBP system and will report on any developments, especially with respect to accuracy and privacy of the information.
We invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about this article. Also, please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.No comments
Our foreign national clients and readers often ask us about the requirements on carrying specific immigration documents with them while they are in the U.S. – whether around town or for domestic U.S. travel. We find that this topic is not very well covered and many foreign nationals are not aware of the applicable requirements to carry specific immigration-related documents with them at all times inside the United States. This article seeks to explain the law and provide answers to this and related questions.
The Law: Registration and Carrying of Registration Documents
Section 262 of the Immigration and Nationality Act (INA) dictates that almost all foreign nationals in the U.S. must be “registered” with the proper government agency. For example, registration happens when someone is admitted into the U.S. at the border or if someone’s status in the U.S. is extended or changed. The registration is a mechanical process, set in the law and in existence for many years, and has been well established and are fairly transparent – many foreign nationals do not even realize (nor do they often need to) that their status in the U.S. has been “registered” with the government. After the registration takes place, Section 264(d) requires the U.S. government to provide a “registration certificate” to the foreign national.
This is where the requirement to carry registration evidence comes in. Section 264(e) of INA requires every individual over the age of 18 to carry their “registration” documents with them at all times. Specifically, section 264(e) reads:
e) Every alien, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him pursuant to subsection (d) [where the government issues a "registration certificate" after each foreign national's registration]. Any alien who fails to comply with the provisions of this subsection shall be guilty of a misdemeanor and shall upon conviction for each offense be fined not to exceed $100 or be imprisoned not more than thirty days, or both.
Many of our clients and readers are surprised to learn about this requirement – and the reason is simply that the Department of Homeland Security (DHS) has generally not enforced the “at all times” language. Often the requirement has been satisfied by an expectation (and ability) that the foreign national would be able to produce the registration document within certain period of time — perhaps by getting them from home or from a safe deposit box.
What Exactly Should I Carry: What is the Registration Certificate?
As explained above, the law requires every foreign national to carry their “registration certificate” so the natural question is – what is this document? The list is described in the federal regulations under 8 CFR. § 264.1(b). Notable registration documents are the Form I-94 card, I-551 (green card), I-766 (EAD card).
For many people in the U.S., their registration certificate would be the Form I-94 card which is issued either at the port of entry (see below) or upon approval of someone’s extension or change of status (usually attached to the bottom of the Form I-797 approval notice).
It is important to note that effective May 2013, Customs and Border Protection (CBP) stopped issuing paper Form I-94 cards at the port of entry for most foreign nationals (exceptions are certain land entry points where paper is still used). Under the new and current procedure (more details), most foreign nationals who are admitted into the U.S. have their passport stamped with a notation of the status type and the status expiration date. To obtain their Form I-94 card (the “registration certificate”), a foreign national must take an extra step by going to the CBP I-94 website, completing the requested information and printing their electronic Form I-94 on paper.
In addition to the Form I-94 card (the registration certificate), we recommend foreign nationals carry with them a photo ID and, if applicable, their visa document (such as Form I-20, Form DS-2019, or I-797 approval notice).
Enforcement and Applicability of the Requirement to Carry Registration Documents
As mentioned above, this requirement is very old and has been on the books for many years. And yet, many people do not know about it and have never encountered a situation where they had to present their immigration registration document to an officer. In certain parts of the U.S., it is more common for officials to ask for these documents. For example, it is significantly more likely for an official to ask for the immigration registration documents in southern California or the southern border states (Arizona, Texas) compared to the Midwest or Northeast states.
Although domestic transportation lines and law enforcement officers do not often ask for these documents, in many cases they have the right to do so. And if asked, a foreign national is supposed to have those documents with them. We recommend foreign nationals to consider the possibility of requests for their registration documents at transportation terminals or elsewhere even if they will never leave the territory of the United States. Again, for foreign nationals the most common item of identification is the passport and the most common forms of evidence of lawful status in the U.S. are the I-94 card accompanied by the appropriate visa document (I-20, DS-2019, I-797, etc.).
We hope that this article alert would be helpful to many of our clients and readers to understand the requirements to carry immigration documents even while they are within the U.S. and even when they do not travel out of town. We would love to hear stories or reports on officials requesting registration documents from our clients and readers. We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about this article. Also, please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.No comments
While we are hopeful that this is not the case, it appears that the chances of the U.S. federal government shutting down on October 1st are increasing. We would like to provide some information as to how a possible government shutdown would affect the immigration cases pending or to be filed shortly. Our office has been receiving an increasing number of inquiries from alarmed clients as to what would happen should the federal government close on October 1 if a deal is not reached on the federal government’s budget. (See latest Google News)
How Would a Government Shutdown Affect Immigration Cases?
There is no simple answer to this question, as some federal government agencies would continue to operate, some would close partially and some would close almost completely. Since the last time this kind of shutdown happened was 15 years ago, there are no clear rules and guidance as to what would remain open and what would close. With respect to immigration, it appears that there would be some disruptions to pending cases and upcoming filings. Generally, the government is likely to stop all non-essential, all non-self-funded and all non-contractually funded services. It is also helpful to look at the preparations for the averted April 2011 government shutdown.
Since USCIS is funded primarily through application fees, it is expected that most of its services and centers would operate normally, perhaps with slightly diminished staff. Because USCIS is a government agency which relies on other government agencies to perform its services, there may be certain disruptions; however, overall, case processing at USCIS is expected to resume. Border processing of immigrants and border enforcement activities would continue as they are deemed “essential.”
Department of State – No (or Slow) Visa Applications; Visa Bulletin Uncertain; NVC Processing Could Continue
The Department of State (DOS) is expected to to cease non-emergency visa services and non-US citizen services at U.S. Consular Posts abroad. As a result, no new visas are expected to be issued and visa application interviews are likely to be cancelled (or postponed). U.S. passport applications will not be accepted and processing of submitted applications is likely to be put on hold.
As a comparison, according to data from the Congressional Research Service Report, during the last shutdown in 1995, approximately 20,000 – 30,000 visas went unprocessed each day and 200,000 applications for U.S. passports went unprocessed.
It is unknown at this point, however, whether the November 2013 Visa Bulletin, which is expected to be issued in early October by the Department of State, will be affected. Many of our readers are eagerly expecting each Visa Bulletin.
With respect to immigrant visa (family, employment, etc.) cases pending at the National Visa Center (NVC), it is possible that they would continue to be processed as NVC’s staffing funding was under contract.
Department of Labor – LCA, PERM and Audits
It is unclear exactly how the Department of Labor would be affected. We expect that ETA Form 9035 LCA filings, used most often in connection with H-1B filings, to be affected. This may mean that no new LCAs can be filed (and those filed may be put on hold) and, as a result, new H-1B filings can be delayed.
ETA Form 9089 PERM labor certifications are expected to be similarly affected. It is unclear whether the system allowing new PERM labor certification filings would be shut down; however, we expect that processing of PERM labor certification cases to stop during a shutdown. This holds true for processing of PERM audits and appeals at the BALCA. Shutdown in PERM processing would further cause PERM case processing delays, on top of the already significant PERM processing times.
While the full extent of the federal government shutdown (if it were to happen over the next couple of weeks) is unknown; we can anticipate some disruptions to government services affecting immigrants. Perhaps more severe would be the disruptions to visa applications at U.S. Consular Posts abroad, followed by delays or inability to file H-1B and/or PERM labor certifications. While some of these affected cases would be able to withstand delay, there would be a number of urgent visa or petition cases which would need to be filed or processed. The shutdown would also create a significant increase in the processing time backlogs for almost all immigration cases. We urge clients who have time-sensitive cases which may be affected by a possible government shutdown to plan accordingly.
We stand ready to help analyze any cases which are time-sensitive and may suffer severe negative impact by the shutdown. Please feel free to contact us. Our office would also continue to monitor developments and provide timely updates. Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.No comments
The Department of State (“DOS”) has announced and launched an online system which allows applicants who have cases pending with DOS to check the status on their applications. The system works for both Immigrant Visa (IV) and Non-Immigrant Visa (NIV) applications filed/pending at either the National Visa Center (NVC) or at a U.S. Consular Section abroad.
The system asks for a case number (for IV cases) or Application ID/Case Number of consular cases and displays (at this point, fairly limited) information about the designated case. We hope that DOS would continue expanding the functionality and the availability of information to make it more valuable to applicants who have cases pending with DOS.
It is important to note that the DOS Visa Status Check system is different and separate than the U.S. Citizenship and Immigration Service (USCIS) online status check system which provides information on cases filed with USCIS (such as petitions for an immigration benefit or applications for status).
We welcome the introduction of DOS’s Visa Status Check system but hope that DOS would expand the system to allow more detailed information to be provided in order to make the system really useful and to allow applicants for visas to obtain timely information on the outcome of their case. Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help, please feel free to contact us.No comments
Some of our clients and readers are aware that in March 2012, the U.S. Embassy in India introduced the Interview Waiver Program (IWP) which allows eligible individuals to apply for certain types of visa without being interviewed in person by a U.S. consular officer. Under this program, holders of B, J-2, H-4, L-2, C, D visa holders, in addition to children under 7 years of age and elderly applicants over 80 years of age could have their in-person interview waived.
Last week, in a press release from November 19, 2012, the U.S. Embassy in India announced that the IWP would be expanded to include (1) H-1B and individual (non-blanket) L-1 workers, (2) F-1 students returning to the same school/program; and (3) children applying before their 14th birthday traveling on any visa.
About the Interview Waiver Program
The Interview Waiver Program was introduced in March 2012 and allows individuals who seek to obtain U.S. visa stamp and who meet the eligibility requirements to skip the interview by a consular officer step. According to the U.S. Mission in India, this program has been successful so far and will be expanded to allow additional applicants to take advantage of the streamlined procedure.
Another reason behind this move is also the increasing demand in U.S. visas in India. In 2011, consular officers in India processed nearly 700,000 nonimmigrant visa applications, an increase of over 11 percent over the previous year. At the current time, applicants have to wait fewer than ten days for a visa interview to be scheduled and, according to the Department of State, spend less than one hour at U.S. consular facilities in India. In addition to the Interview Waiver Program, in September 2012, the U.S. Mission in India introduced additional changes to the application process, including the payment, biometrics and interview steps.
Interview Waiver Program Eligibility Requirements
Under the expanded program, the following types of visas are eligible for the interview waiver program:
- Business/Tourism (B1 and/or B2);
- Students (F-1) returning to attend the same school and same program;
- Temporary workers on H-1B visas or on individual L-1A or L-1B visas who are returning to work for the same petitioner in the same classification and the previous visa has not expired for more than 12 months;
- Dependent (J2, H4, L2);
- Transit (C) and/or Crew Member (D) – including C1/D;
- Children applying before their 14th birthday traveling on any visa class;
- Applicants applying on or after their 80th birthday traveling on any visa class.
There are additional requirements, all spelled out at the www.ustraveldocs.com website. Among the most notable are (1) the previous visa must have been issued in India, must be issued after November 1, 2008 (for dropbox use) or after August 1, 2004 (biometrics required); (2) there must not be a “Clearance Received” annotation on the previous visa; and (3) the previous visa must not have expired for more than 48 months (for most classifications, 12 months for H-1B or L-1 visas).
We encourage the U.S. Mission in India’s efforts to streamline the application process and allow applicants, especially H-1B or L-1 workers who are often under time pressure to return to their employment, to process their visas faster. It should be noted, however, that even though some visa applicants may be able to take advantage of the interview waiver program, the U.S. Consular Section officers are likely to call for an interview any applicant whose application paperwork is missing or if there are questions about one’s continued eligibility.
As always, prior to submitting a visa application, please remember to check with the U.S. consulate regarding documentation requirements for the specific visa type. As the U.S. consulates in India are implementing the new application processes, we recommend that you stay flexible, and build in extra lead time to accommodate travel itineraries. Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help, please feel free to contact us.No comments
Almost all non-US nationals who have traveled to the U.S. at least once are familiar with the little white (or green) card inserted into one’s passport upon admission into the U.S. (sample) Many people do not fully realize the significance of the Form I-94 — most importantly, it records the entry date into the U.S. and determines how long a foreign national is entitled to remain lawfully in the U.S. Form I-94 card is important document serving to establish valid status in the U.S. and to obtain certain benefits, including driving licenses.
Proposed Elimination of Form I-94
In the near future, the U.S. Customs and Border Protection (CBP, the agency which admits foreign nationals in the U.S.) is expected to stop issuing Form I-94s to most foreign national at the U.S. ports of entry. The Department of Homeland Security (which oversees CBP and Citizenship and Immigration Service) is instead proposing to use an automated entry system to record each nonimmigrant’s arrival. Travelers will receive a passport stamp annotated with their immigration status and the date their period of stay expires. After the I-94 is eliminated, CBP may create an online portal to allow nonimmigrants to check their status and period of stay and print out a record of their admission. But until such time, foreign nationals will only have their passport stamp to prove entry and validity of status.
It should be noted that foreign nationals entering at land ports of entry will, for the time being, continue to receive a functional I-94 card, as will refugees and some other classes of foreign nationals.
What the I-94 Change Means to Employers and Foreign Nationals
Currently, the I-94 card is used as proof of lawful immigration status and the permissible period of stay. In addition, numerous federal and state agencies use the I-94 to verify whether a foreign national is entitled to certain benefits, including a Social Security number, a driver’s license, among others. USCIS rules require nonimmigrants to carry the I-94 as proof of their status.
Further, along with a valid foreign passport, the I-94 is one of the documents used to verify a foreign national’s employment eligibility on Form I-9 and in the E-Verify database. Since Form I-9 require employees to present and employers to inspect the actual paper I-94 card, it is important for employers to expect, and keep abreast of, the upcoming changes. It is not yet clear how elimination of the I-94 will affect these critical procedures and requirements pertaining to completing the Form I-9. Though CBP has been meeting for some time now with interested government agencies about its paperless I-94 implementation program, specific plans to revise regulations that currently require Form I-94 are not yet known.
While we applaud the government’s efforts to create a more efficient paperless system of recording foreign nationals’ entry information, the impact of eliminating the paper Form I-94 is significant and, in many cases, not fully understood and analyzed. We will continue monitoring this subject and provide updates to our clients and readers. Please do not hesitate to contact us if we can help you. Also, please visit us again or subscribe to our free weekly newsletter to ensure that you obtain related immigration-related news and announcements.No comments
Travel Warning: Passport Expiration Date May Affect Duration of Authorized Stay (I-94) Upon Entry into the U.S.
The summer has traditionally been a busy traveling season and as the summer start to approach and many of our clients and readers start making international travel plans, we see an increased flow of inquiries and consultations regarding travel and passport expiration dates. Most often the question is, What should be the duration of the passport for purposes of (re)entering the U.S. after travel abroad?
At Least Six Months Passport Validity Required
As an initial matter, the Customs and Border Protection (“CBP”) requires that passports be valid for six months beyond the date the traveler will exit the U.S., however, the U.S. has signed agreements with a number of countries to waive this requirement. When such an agreement is in place, the passport must be valid for the entire period of the visitor’s intended stay, but the additional six month validity period is not required. Please read our article on the Six-Month Club for more information.
Passport Expiration Date Before Petition Expiration Date
The question then arises for travelers who are in the U.S. pursuant to a petition with a certain expiration date, such as H-1B, L-1, etc. For example, H-1B petitions are normally issued with a validity of three (3) years and when an H-1B worker travels to the U.S., he or she would expect that upon entering the U.S., the CBP agent would provide a Form I-94 with expiration date equal to the H-1B expiration date plus ten (10) days. However, if the passport has an expiration date which is before the H-1B petition expiration date, CBP, by regulation, should issue a Form I-94 card with expiration date equal to the passport expiration.
However, CBP is inconsistent in the application in this rule and they often disregard the earlier passport expiration date. This, unfortunately, creates confusion among many travelers who seem to get arbitrary Form I-94 expiration dates during different travels.
My I-94 Expiration Date Is The Same as My Passport Expiration and Earlier than My Petition Expiration — What Should I Do?
As discussed above, where the passport expiration date is before the petition (Form I-797) expiration date, CBP should issue Form I-94 with expiration date equal to the passport expiration. As a result, the foreign national is allowed to remain in the U.S. for a period which is shorter than the period they (and their employer) expected. In such cases, it is important to understand the options for obtaining a Form I-94 with expiration date equal to the petition expiration.
Option 1 – Form I-94 “Correction” by CBP. Normally, CBP allows travelers who have been issued erroneous Form I-94 cards to visit a CBP office (normally at international airports) and, after obtaining a new passport, to request that they be issued a corrected I-94 card. This approach has worked for some of our clients in the past. However, some CBP offices refuse to issue such corrections because, technically, the initially issued Form I-94 had the proper expiration date.
Option 2 – Application for Extension of Status. Alternatively, an application to extend status may be filed with U.S. Citizenship and Immigration Service (“USCIS”) to request that a new Form I-94 card be issued to match the Form I-797 petition expiration date. This option must be pursued before the Form I-94 expiration date or the extension of status application may be denied.
Note that USCIS does not require that a passport has a validity for the entire period of requested extension of stay — all USCIS needs is a passport valid at the time of filing of the application to extend status. 8 C.F.R. § 214.1(a)(3). The passport does not have to be valid for the entire period of time requested in the extension of status application as the regulations only require that the individual “agree[s] to maintain the validity of his or her passport.”
Option 3 – Leave the U.S. and Reenter with a Renewed Passport. Finally, the foreign national may leave the U.S. and after obtaining a new passport, travel back to the U.S. If a U.S. visa has been issued on the passport that has expired, the foreign national should carry both the new passport and the expired passport containing the valid visa. There is no need to re-apply for a new visa unless the visa term has itself expired.
Consequences of Overstaying Form I-94 Expiration
It is very important to understand that any corrections of Form I-94 card, extensions of status applications or travel abroad be attempted before the Form I-94 expiration date, as issued and determined by CBP. Overstay of the Form I-94 expiration date starts the period of unlawful presence which has severe consequences.
First, overstaying the end date of the authorized stay, as provided by the CBP officer at a port-of-entry and noted on the Form I-94 card would automatically void or cancel the visa stamp. In addition, filing for an extension of status after I-94 expiration has a significant chance of denial. Finally, overstaying the I-94 expiration by more than 180 days may trigger the 3-year ban of entering the U.S. (overstaying by more than one year may result in a 10-year ban).
Travel Preparations — Ensure Passport Has Sufficient Validity
We urge our readers and clients, especially those who plan to enter the U.S. on the basis of a USCIS-approved petition, to ensure that their passport has validity which is greater than the expiration date of their petition approval notice. Also, we always recommend that when a traveler arrives into the U.S. and during border control, to verify his or her I-94 card expiration date, as noted by the CBP officer and to address any questions or concern at that time with the CBP officer. Addressing issued at a later time is usually complicated (and often, costly).
The Form I-94 expiration date is extremely important and it should be checked upon every entry into the U.S. and, ideally, while at the CBP agent station. If you feel that you have not been issued a Form I-94 with a correct date, ask the CBP agent or ask to speak with a supervisor. Foreign nationals should not assume that because they are entering on a visa and pursuant to a I-797 petition approval which has a certain expiration date, that the authorized period of stay in the U.S. on Form I-94 would be the same.
Our office has been able to successfully help many foreign nationals, in a variety of visa types, in either having their I-94 cards corrected or extended. Please do not hesitate to contact us if we can be of any help.No comments