- H-1B Cap Issues
- H-1B Cap Exemptions
- Timing Issues for Cap-Subject H-1B Visas
- Legal Help from an Experienced H-1B Lawyer
- Tips for Collecting Evidence of Extraordinary Ability
- Building Your Case for Extraordinary Ability
How Long Am I Allowed to Stay?
The most important error commonly made by foreigners after entry into the United States is confusing the visa, a machine-readable visa stamp bearing a photo, issued into the traveler’s passport at a U.S. Embassy abroad, with the I-94 entry/departure record, which is now an electronic record created by the inspecting officer at the Port of Entry that must be retrieved online. U.S. Customs & Border Protection (“CBP”) shifted to electronic entry records as of April 26, 2013, so most travelers admitted after that date must retrieve and print out their electronic I-94. Anyone seeking to file an application or petition for a change from one non-immigrant visa status to another, or seeking adjustment of status from non-immigrant to permanent resident, will need to retrieve their electronic I-94, because all such applications or petitions will ask for the 11-character I-94 number.
A visa is an entry document, which must be valid for admission when traveling from abroad and seeking lawful admission into the United States at a Port of Entry. An I-94 is a status document, which defines the traveler’s visa status once inside the United States, and the length of stay permitted. Once a traveler is admitted to the United States, dates on the visa do not define how long the traveler is allowed to stay; the I-94 is the controlling document.
For most temporary travelers, the I-94 card or electronic printout will show two important dates: the date of admission, which should match the date of the entry stamp in the passport, and the date the authorized period of stay ends. All U.S. airports are now using the electronic system, so travelers must be vigilant to make sure the inspecting officer does not make typos, spelling or transcription errors when entering the traveler’s names, date of birth, or class of admission, as these are fields necessary to retrieve the electronic record.
Many travelers with a work visa status may have multiple notices of approval from USCIS with “replacement I-94s” to indicate a change or extension of status. Even if you have one or more of these, you may still need the I-94 card or printout documenting your last admission at a Port of Entry.
The ending validity of an I-94 admission record is often not the same as the end date on the visa. Visitors are admitted for 6 months or less, but typically have a visa stamp valid for five or ten years. Most travelers in an individual petition-based work visa status, such as H-1B or O-1, will be admitted only until the petition expiration date, which may be annotated on the face of the visa as “PED.” Beneficiaries of an L-1 blanket petition may be issued a visa for the full reciprocity period allowed, often 5 years, but may be admitted to the US and issued an I-94 valid for a two- or three-year period not coterminous with the end date of either the worker’s assignment or the blanket petition validity. E visa holders are admitted for two years from the date of admission, regardless of when the visa stamp expires.
Some travelers (primarily students) are admitted for “D/S,” meaning “Duration of Status,” instead of given an I-94 that specifies a fixed end date. “D/S” refers to another, secondary status document that determines when the lawful period of stay ends. For F-1 and M-1 students, that secondary status document is a Form I-20, issued by a U.S. school authorized to enroll foreign students in a full-time course of study – an academic program for F-1 students, or a vocational training program for M-1 students. For J-1 exchange visitors, the secondary status document is a Form DS-2019, issued by a program sponsor authorized by the U.S. Department of State.
Except for students who have quit their program and are no longer maintaining valid visa status, most are entitled to a grace period. Upon completion of the authorized course of study or practical training, F-1 students are allowed a grace period of 60 days during which they may remain in the United States. J-1 exchange visitors and M-1 vocational students have a grace period of 30 days.
Some visitors from countries that participate in the Visa Waiver Program- who are allowed to come to the U.S. as visitors without applying for a visa – are admitted for 90 days only, and may not extend their stay. Travelers visiting under the Visa Waiver Program were the first to be given only electronic I-94 records; after successful rollout of the electronic I-94 program for VWP entrants, it was expanded to include all other non-immigrants.
There are many subtleties to status documents and many situations where the end date of your lawful period of admission will not match the petition end date or the ending validity date of your visa. If you have questions about your own status documents, consult an immigration attorney and bring the original documents for clarification.