Immigration Lawyer New York

FAQ on Immigration and Visas for Individuals

1. My visa is expiring next week. Do I have to leave the U.S. before then?

That depends on what your I-94 entry/departure card says. The visa is only an entry document. Once you are admitted to the U.S., the length of your lawful stay is determined by the I-94 card that was stapled into your passport by the officer who inspected and admitted you, and not by your visa stamp. The date of your admission was stamped on the I-94 card (typically in red ink), and the end date of your authorized stay was printed or written onto this card by the inspecting officer. You must leave the U.S. on or before the end date written on your I-94 card, unless a timely, non-frivolous application to extend your stay or change your visa status was filed with USCIS before that date.
Visitors with a green I-94 card who entered without a visa, under the Visa Waiver Program, may not extend or change their status.
F-1 students and J-1 exchange visitors do not get an I-94 with a specific end date. The I-94 cards for F and J nonimmigrants are marked "D/S", meaning Duration of Status. If your I-94 says "D/S" then your status is valid until the end date of your education or training program, which is shown on the authorizing form I-20 or form DS-2019 issued by your school or exchange program sponsor.

2. What happens if I overstay?

The consequences of visa overstay by even one day are severe. Time spent in the U.S. past the end of your authorized stay is called “unlawful presence.” If you overstay by even a single day, you cannot change or extend status, in most cases you cannot adjust status to permanent residence (consult with an attorney!), the visa on which you last entered the country is automatically void, and you may not apply for a new visa anywhere except in your home country. If you overstay by 180 days or more, and then travel abroad, you will be barred from returning to the U.S. in any visa status for a period of 3 years. If you overstay by one consecutive year or more, and then depart, you will be barred from returning to the U.S. in any visa status for a period of 10 years. If you overstay on more than one occasion, and have a cumulative total of 365 days or more of “unlawful presence” and then depart, you are permanently barred from ever returning to the U.S.
Waivers of these bars may be available under certain circumstances, but if the permanent bar applies, you are ineligible to apply for a waiver until at least  10 years after your last departure from the U.S.

Certain exceptions apply, but if you believe that any of these situations may have already happened to you or to any member of your family, even if the overstay was inadvertent or beyond your control, you should seek counsel immediately.

3. How can I get a work visa if the H-1B Cap for the current fiscal year has already been reached?

The annual limit of 65,000 new H-1B professional visas is often exhausted before the fiscal year ends, and and in a strong economy, even before it begins, because employers may apply up to 6 months before the start of the federal fiscal year. If you need a work visa and the current H1B quota has run out, take heart, there may be an alternative visa solution available to you before the next October. This will depend on your education, training and professional credentials; the type of U.S. employer you want to work for; and the type of position an employer has offered to you. Whether you have already spent a substantial amount of time working and/or receiving training in the U.S. may be a factor as well. It may also depend on your country of nationality or citizenship, as visa categories that result from trade agreements and treaties may make people from a few countries eligible for a work visa in cases where many other foreign candidates may not be currently eligible for a visa that would allow them to take that same job. Whether there is a viable alternative to the H-1B work visa available to you in a given situation will depend on some or all of these factors, and should be discussed with counsel.

4. I heard non-profit employers are exempt from the H-1B cap. Is this true?

Some non-profit U.S. employers are exempt from the H-1B cap, but not all. Institutions of higher education, non-profit research institutions, and government research institutions, as well as non-profits that are formally affiliated with such educational institutions, are exempt from the H-1B cap. In addition, some employers may qualify for an exemption of a specific job offer, if the H-1B professional worker is to be placed onsite at a cap-exempt institution, to do work that furthers the primary purpose of the exempt institution. However, non-profit community and social service organizations, political organizations, and arts institutions generally do not qualify for the H-1B cap exemption.

5. I have a friend who got a visa as an "alien of extraordinary ability." Can I get one too?

This will depend on the nature and documentation of your own credentials, accomplishments and renown in your field. You cannot measure the strength of your case against that of a friend, even if you have similar backgrounds and are doing similar jobs. An O-1 visa requires sponsorship by a U.S. employer or agent, but is based on the individual’s level of achievement and evidence of professional recognition at the national or international level. Legal standards in this category differ between the arts, and the sciences, business and education. These standards are interpreted by the immigration service with some inconsistency. In general, you must demonstrate a high level of past accomplishment in the same field in which you intend to work. In some cases, past accomplishments in one field may be closely relevant to another type of work, and an O-1 may be appropriate.

6. My passport is expired, or about to expire. Can you renew it for me?

No, your foreign passport is your own responsibility. You must maintain a current, valid passport during your stay in the U.S. Periodically, this will be very important, as you will need proof that your passport is valid at any time you seek to renew, extend or change your lawful immigration status in the U.S. You must have a valid passport whenever you travel abroad and seek to return, when you seek to extend or change status, and at any time when you may have a scheduled interview or fingerprint appointment with USCIS. An immigration attorney can remind you of your upcoming passport expiration date. Please keep in mind that renewal of a foreign passport is not a matter of U.S. law, it is a matter of the laws of your home country.

7. What is the difference between nationality and citizenship?

Nationality is historical in nature, and citizenship deals with the present. For immigrant visa purposes (the country of origin), you only have one nationality, and you do not have the power to change it. Your nationality is the country where you were born, except in unusual circumstances. Citizenship is acquired at birth also, but your citizenship can be lost or relinquished, and citizenship in another country or multiple countries can be acquired later, so you can be a citizen of multiple countries. 

8. I have been told that my immigrant visa category may be backlogged. Can you please explain immigrant visa quota retrogression?

This is where your country of nationality, not your citizenship, has a direct impact on the green card process. When your immigrant visa category is “backlogged” or has “retrogressed” what that means is that a visa in this category is not currently available to you. Even if an immigrant visa petition on your behalf is already approved, you will not be eligible to apply for adjustment of status to permanent residence in the U.S. or apply for an immigrant visa abroad until the Department of State makes visas in your category currently available for your priority date.

The "priority date" is the date on which an application for labor certification on your behalf was first received by the Labor Department. In immigrant visa categories that bypass the labor process, the “priority date” is the date that the petition was received. Generally, the older a case in a given visa category is, the sooner the beneficiary will be able to file for residence.

There is simply no way to predict when visa categories will move, or in which direction. This was not even an issue at the time many still-pending cases began. From the late 1990s through the end of 2004, all of the employment-based visa categories were current. Then, in January 2005, the EB-3 category for nationals of China, India and the Philippines suddenly retrogressed to make visas only available for cases that were filed prior to January 1, 2002, and other visa categories retrogressed thereafter.

The visa categories can stand still for months, or leap forward or backward without reference to each other, seemingly without rhyme or reason. The algorithms the State Department uses to estimate visa usage for each fiscal year, and to allocate those estimated visa numbers among all the family- and employment-based categories, are not public information. In short, it is at their discretion. The availability of immigrant visas for a given month is published in the Visa Bulletin, usually after the 15th of the preceding month. Further ahead than the preceding month, we cannot know exactly what visa availability will be.

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Karin Wolman is admitted to the bar in the State of New York.
Her practice is limited to U.S. Immigration & Nationality law.

This website is for general information purposes only. This information is not legal advice, and is not intended to serve in place of legal advice. You should consult with an attorney about your specific question or situation. Hiring an attorney is an important personal and professional decision, and should not be undertaken lightly.

Copyright 2015 Law Offices of Karin Wolman, PLLC - New York Immigration Lawyer - 48 Wall Street, 11th Floor. New York, NY, 10005-2907