Section 101(a)(15) of the Immigration and Nationality Act (INA) specifies various classes of persons admissible to the United States as nonimmigrants, their length of stay, and permissible activities. Nonimmigrants are subject to removal, 3- or 10-year bars from reentering the U.S., or other measures if they fail to maintain status, fail to depart at the end of the authorized period of stay or engage in unauthorized activities.
A nonimmigrant visa is issued to a foreign national who wishes to be in the United States temporarily for study, temporary work, business, medical treatment, or tourism. The nonimmigrant visa allows the bearer to travel to a U.S. port of entry and request permission from the Customs and Border Protection (CBP) immigration officer to enter the United States. One gets an immigration status in the U.S. through admission at a port of entry by an unexpired arrival/departure record (Form I-94) issued by the CBP, normally issued electronically, or approved by USCIS as a change from another status. This immigration status is also referred to as ‘visa status’ or ‘nonimmigrant status’.
The I-94 with an approved Petition/Application is not enough to hold a valid nonimmigrant status. A person who fails to comply with the assigned status is no longer considered to be in lawful nonimmigrant status. I-94 is the document that determines the immigration status of the traveler and the expiration date in the U.S. Neither the visa nor the I-797 approval determines these details. That is why foreign travelers should review and download their electronic I-94 every time they enter the U.S.
Even if a foreign national is, for some time, not holding a nonimmigrant status, maybe in a period of authorized stay provided a Petition or Application is timely filed with genuine reasons to extend or change nonimmigrant status before the foreign national’s current status expires. This period of authorized stay continues until the USCIS issues a decision on the pending case.
A noncitizen on a nonimmigrant status should be mindful of the following:
- Participate only in activities in line with your nonimmigrant status;
- Verify your Form I-94 and make sure you are re-admitted to the country with the correct immigration status and the right expiration date when you return from a trip abroad;
- Update a change of your address within 10 days every time you move;
- Keep an unexpired passport for at least six months into the future;
- Maintain continuous health insurance during the respective period;
- File extension/change of status petition before the expiry of the assigned status.
Failure to file before the period of previously authorized status expired may be excused at the discretion of the USCIS and without separate application, with any extension granted from the date the previously authorized stay expired, where it is demonstrated at the time of filing that:
- The delay was due to extraordinary circumstances beyond the control of the noncitizen, and the USCIS finds the delay commensurate with the circumstances;
- The noncitizen has not otherwise violated his or her nonimmigrant status;
- The noncitizen remains a bona fide nonimmigrant; and
- The noncitizen is not the subject of deportation proceedings under section 242 of the Act (before April 1, 1997) or removal proceedings under section 240 of the Act.
It is important not to violate any provisions of your nonimmigrant status. If you are in doubt of any violations that may cause you to fall out of status, overstay, work without authorization, or even accrue unlawful presence, due to unforeseen circumstances, you may be eligible for potential waivers provided such violations are unintentional.
By: Hari Subhash
Hari Subhash is a staff attorney at Reddy & Neumann, P.C. He works in the H-1B Department where he assists clients through all phases of the non-immigrant visa process.