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Five Important Reminders for Foreign Nationals Coming to the United States

Five Important Reminders for Foreign Nationals Coming to the United States

Bashyam Spiro & Edgerton LLP
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1. It's the I-94 that governs your stay in the U.S., not the Visa

 When a foreign national enters the United States in nonimmigrant status, he/she will receive an I-94 Arrival/Departure Record at the port-of-entry. This I-94 card will state the class of admission (such as B, H, L, F etc) as well as the expiration date of the nonimmigrant status. It is the expiration date on the I-94 card that governs one's stay in the United States. If a foreign national remains in the United States past this date (without having a pending extension or change of status application at that time), he/she will be out-of-status (or illegal).

 A U.S. visa, on the other hand, allows the foreign national to apply for entry to the U.S. in a certain classification (e.g. student (F), visitor (B), temporary worker (H)). A visa does not guarantee entry to the United States. The Department of State (DOS) is responsible for visa adjudication at U.S. Embassies and Consulates outside of the U.S. The Department of Homeland Security (DHS), U.S. Customs and Border Protection (CBP) immigration inspectors determine admission into, length of stay and conditions of stay in, the U.S. at a port of entry. The information on a nonimmigrant visa only relates to when an individual may apply for entry into the U.S. DHS immigration inspectors will record the terms of your admission on your Arrival/Departure Record (I-94 white or I-94W green) and in your passport.

 In some cases, the admission period you receive on your I-94 will be different than the validity dates shown on your visa. This is particularly true for some categories of visas, such as E visa holders (who normally receive 5-year visas, but are admitted for only two years at a time) or for certain nationals (such as Chinese H-1B visa holders (who normally receive a 3-month visa validity, but may be authorized to remain in the U.S. for up to three years at a time). Problems may also arise where a foreign national travels on a valid, unexpired visa for a prior employer, but has since been approved for an extension of stay. For these reasons, it is very important that you check your I-94 as soon as you have been admitted to ensure that you have been admitted in the appropriate visa status for the appropriate period of time.

 2. If you overstay your I-94 card for even one day, your visa is automatically cancelled

 Under Section 221(g) of the Immigration and Nationality Act, a foreign national's nonimmigrant visa is automatically cancelled if the foreign national overstays the expiration date of his/her I-94 Arrival/Departure Record. (Some exceptions exist for those who have legitimate extension or change of status applications pending.) If the visa is cancelled, a foreign national cannot use it to reenter the United States and must apply for a new visa at a U.S. consulate abroad B normally in one's home country. Why is 221(g) important to keep in mind when in the U.S.? First, violating one's nonimmigrant status could have a negative impact when applying for another visa abroad. Second, as hard as it is to get a nonimmigrant visa approved at a U.S. consulate abroad, once a foreign national has it why do something to lose it? Third, being forced to apply for your visa in your home country can be expensive and time-consuming, particularly for nationals of China and India. Do not overstay the expiration date on your I-94 card.

3. If you enter the U.S. with your spouse, don't forget about him or her!

We have seen many situations where a person enters the U.S. in H1B status with his or her spouse who enters as a dependent in H4 status. However, when the H1B nonimmigrant applies to extend his/her status, they forget to do the same for the spouse. Often the main applicant thinks that the spouse's status is automatically extended when his/her extension application is approved. This is not the case. One must file a separate application to extend the status of the dependent spouse. If this is not done, the dependent spouse can fall out-of-status and be subject to removal from the United States. This applies not just to persons who enter in H status, but many other nonimmigrant statuses as well. So do not forget about your spouse!

 4. If you enter under the Visa Waiver Program, you cannot change or extend your status

The Visa Waiver Program allows citizens of certain countries, traveling temporarily to the United States under the nonimmigrant admission classes of visitors for pleasure and visitors for business, to enter the United States without obtaining nonimmigrant visas. Admission is for no more than 90 days. Unlike a person who enters the United States as a visitor with a B1/B2 visitor visa, a person who enters under the Visa Waiver program cannot extend their stay in the United States nor can they change their status to another nonimmigrant status. Furthermore, if a person who enters under the Visa Waiver program overstays his/her I-94W Arrival/Departure Record or otherwise violates his/her nonimmigrant status, he/she can no longer enter the U.S. under the Visa Waiver program and must apply for a B1/B2 visitor visa at a U.S. consulate abroad.

 5. If you're not sure about something, ask for help

 U.S. immigration law is complicated. Even the smallest violation of one's nonimmigrant status could result in removal, bars to reentry and other negative consequences. Sometimes it is difficult to understand what a person can or cannot do while holding a certain nonimmigrant status. For example, can an H1B work on the side for someone other than his/her employer? Can a student in F status do volunteer work? What will result in a visitor in B status violating his/her status? If you're not sure, ask a qualified immigration attorney for advice. A little good advice could save you many headaches in the future.

 Priority Dates, Immigrant Visa Availability -- What Does it All Mean?

 Having been immigration lawyers for over a decade, we have provided advice to thousands of immigrants on a variety of immigration matters. One of the most difficult areas of immigration law to explain to an intending immigrant is the concept of priority dates and immigrant visa numbers. If you have had a consultation with a lawyer on obtaining permanent residency, you may have heard a lawyer say, "you have to wait until an immigrant visa number is available and your priority date becomes current." That sounds nice, but what do all of those words mean?

 A 'priority date' is the date a labor certification or immigrant petition (I-140 or I-130) is filed on your behalf. The date the case is received by the government agency is your priority date. For example, if you are an employee of Corporation Inc. and they file a labor certification for you that is received by the Department of Labor on January 11, 2008, that becomes your priority date for the rest of your case. If a labor certification is not needed for your case, the date an I-140 Immigrant Petition for Alien Worker is filed on your behalf is the priority date. In the family immigration context, if you are a U.S. permanent resident and you file an I-130 Petition for Alien Relative for your spouse in Russia on January 10, 2008, that date becomes your spouse's priority date. These are just a few examples of how a priority date can be set for an intending immigrant.

 An 'immigrant visa' is the legal term for permanent residency or "green card". The U.S. government created per-country limits on immigrant visa or permanent residency availability. There is a maximum number of family-based and employment-based immigrant visas that can be issued to citizens of each country in a fiscal year. If the demand for immigrant visas exceeds the numbers allotted for a country in that year, an immigrant visa would be 'unavailable'.

 So what does an 'immigrant visa' have to do with a 'priority date?' The Department of State issues a Visa Bulletin every month that provides the date of immigrant visa availability for all employment and family-based preference categories. If an intending immigrant has a priority date that is on or before the date listed in the Visa Bulletin for his/her preference category and nationality, then a visa is available for that person. An available visa would allow the applicant to apply for an I-485 adjustment of status or initiate consular processing of their residency application outside the United States.

 For example, Corporation Inc. files a labor certification on your behalf on January 10, 2008 and it was received by the Department of Labor on January 11, 2008. That is your priority date. Your labor certification was then approved on June 15, 2008. Your employer can file an I-140 Immigrant Petition for Alien Worker on your behalf once the labor certification is approved. However, whether or not you can file an I-485 Adjustment of Status Application depends on whether an immigrant visa is available to you. You would need to look at the Department of State Visa Bulletin for June, check the priority dates for your preference category and country, and see if your priority date is on or before that date. If so, you can go ahead and file the I-485 adjustment because a visa number is available. If your priority date is later than the date in the Visa Bulletin for your preference category, you will have to check the Visa Bulletin in each of the subsequent months to see if the date has changed. Only if an immigrant visa is available based on your priority date can your residency case move forward to completion.

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