Do the terms visa, i-94 and i-797 confuse you? How do you find out what is your authorized period of stay in the U.S and what determines that period?
The difference between the visa expiration date and the length of time you have permission to remain in the United States can be confusing. To avoid violating your authorized stay, it is important to understand the difference between a U.S. visa, I-94, and I-797.
- U.S. VISA
- A visa is a travel document. A U.S. visa in a foreign national’s passport gives permission to apply to enter the United States. A visa by itself doesn’t authorize entry to the U.S. A visa simply indicates that your application has been reviewed by a consular officer at a U.S. Embassy or Consulate, and that the officer determined you’re eligible to travel to a U.S. port-of-entry for a specific purpose. The port-of-entry can be an airport, a seaport or a land border crossing.
- A visa does not guarantee entry into the United States. Additionally, the visa expiration date shown on your visa does not reflect how long you are authorized to stay within the United States. Entry and the length of authorized stay within the United States are determined by the Customs and Border Protection (CBP) Officer at the port-of-entry each time you travel.
- The visa expiration date is shown on the visa along with the visa issuance date. The time between visa issuance and expiration date is called your visa validity. The visa validity is the length of time you are permitted to travel to a port-of-entry in the United States.
- A U.S. visa shows when and how many times you may seek admission to the United States from abroad based on the classification noted on your visa. It doesn’t control the length of your stay. Depending on your nationality/purpose of travel, visas can be issued from a single entry (application) up to multiple/unlimited entries.
- FORM I-94
- Upon arriving at a port of entry, the CBP official will determine the length of your visit. On the admission stamp or Form I-94 (Can be retrieved from https://i94.cbp.dhs.gov/I94/#/home), the U.S. immigration inspector records either an admitted-until date or “D/S” (duration of status). If your admission stamp or Form I-94 contains a specific date, then that is the date by which you must leave the United States.
- If you have D/S on your admission stamp or Form I-94, you may remain in the United States as long as you continue your course of studies, remain in your exchange program, or qualifying employment.
- The admitted-until date or D/S notation, shown on your admission stamp or Form I-94 is the official record of your authorized length of stay in the United States. You cannot use the visa expiration date in determining or referring to your permitted length of stay in the United States.
- Your passport must be valid for your entire requested period of stay in the United States, because your Form I-94 will be issued only until your passport expiry date, even if you have an I-797 Approval for a longer period of time.
- It is also pertinent to note that many major airports are no longer stamping passports for most classes of admission. Instead, each time you enter the U.S., the U.S. Customs and Border Protection (CBP) creates an online, electronic entry record, i.e., the I-94 to record your entry to the U.S. The I-94 record will be your only official record of entry to the U.S.
- USCIS issues an I-797 Notice of Action when a nonimmigrant petition or application is approved. The I-797 reflects the visa classification (H-1B, L-1A, F-1, etc.) you, the foreign national have been approved for and the validity period for the nonimmigrant status authorized by USCIS.
- Any additional period given at the bottom of the I-797 notice cannot be considered as employment authorization period. It is only a grace period given on discretionary basis to either file for extension/ change of status or make arrangements to depart the country.
The latest I-94 received by the foreign national dictates the period of stay in the U.S. It could be an i-94 issued by CBP official at port of entry or by USCIS at the bottom of the I-797 Approval. In other words, whichever i-94 is latest needs to be considered.
For example: If you received an H-1B I-797 approved from 03/15/2022, valid until 12/31/2022 but you entered the U.S. on 03/20/2022 utilizing a previously issued H-1B visa and I-797 notice valid until 08/30/2022, you might be issued an I-94 valid only until 08/30/2022. In this situation, your period of stay ends on 08/30/2022 and not 12/31/2022 because the event of your entry succeeded the issuance of approval by USCIS.
To conclude, please verify the dates whenever you receive a new I-94 either at Port of Entry or from USCIS to ensure that your stay in the U.S. is authorized. If the stay as shown on your Form I-94, Arrival/ Departure Record, has already expired, USCIS will most likely not grant an extension of stay unless there are compelling unforeseen circumstances beyond your control prevented you from filing an extension of stay, on time. It is important to be aware and conscious of your status expiry date, as an overstay or violation of status may cause you to be ineligible for a visa in the future for return travel to the United States.
Please contact your Graham Adair attorney with any case specific questions or contact us at firstname.lastname@example.org; +1 408 715 7067.