Understanding U.S. Visa Laws and Immigration Status
In the United States, there is little difference between someone who enters illegally and someone who originally enters legally but then stays past the time permitted. As a result, it is important to understand visa requirements and restrictions.
What is a Visa?
A visa is simply a document that gives a non-U.S. citizen permission to travel to a port of entry to the U.S. A visa itself does not permit an individual to enter or stay in the U.S. Upon arrival at the port of entry, the person can then request to enter the U.S. A Customs and Border Patrol officer makes the final determination about whether the individual is permitted to enter the U.S., and if so, for how long.
The U.S. has a visa waiver program allowing most citizens or nationals of certain participating countries to travel to the U.S. for tourism or business for ninety days or less without first obtaining a visa, assuming they meet some specific requirements. All others must have a visa.
Visa Expiration and Length of Authorized Stay in the U.S.
The expiration date on the visa only indicates how long the individual can use that document to travel to and arrive in the U.S. It is not the same date by which the individual is required to leave the U.S. That date is determined at the time of entry by the Customs and Border Patrol officer and the type of visa.
The Customs and Border Patrol officer may provide the individual seeking entry to the U.S. with an I-94 form indicating the date on which the individual is required to leave the U.S. (called the “out of status” date), or, alternatively, the I-94 form can be obtained from the US Customs and Border Protection website.
Occasionally, rather than an actual date, the I-94 form will indicate “D/S” for “duration of status,” which means the individual can remain in the United States as long as they remain in the same status as indicated on their visa. For example, an individual entering the U.S. on a student visa is permitted to remain in the U.S. as long as they continue to be a full-time student and otherwise comply with the terms of their visa.
Changing Visa Status or Extending Time in the U.S.
Individuals who know that they will be unable to leave the U.S. before the date listed on their I-94 or before their status changes can apply for an extension of stay. The application must be made before the expiration of the authorized stay, and other requirements for the application must be met, depending on the type of visa.
The category of visa generally determines the length of time for an extension request and how many extensions are permitted. For example, those in the U.S. on a B visa (visitors for business or pleasure) can usually apply for extensions of stay in six-month increments, while those on a G-5 visa (domestic staff members) can usually apply for extensions of stay in two-year increments.
The application for an extension of stay allows the individual to remain legally in the U.S. until a decision on the application is final. If the application for an extension of stay is denied, the individual must leave the country immediately.
Applying for a new visa often requires that an individual to return to their home country and complete the visa application process all over again. (To learn more about the visa application process, see our upcoming post, U.S. Visa Basics: Immigrant and Non-immigrant Visas.)
Consequences of Staying in the U.S. beyond the Authorized Date
Individuals who stay in the U.S. beyond the date on their I-94 or after their status changes are considered to be in the U.S. illegally, and their visa is canceled automatically. In some cases, they may be permanently barred from obtaining a visa, green card, or other immigration benefit in the future.
An individual who stays in the U.S. for between 180 and 365 days beyond their I-94 or change of status date, but leaves the country before any formal removal or deportation proceedings are initiated, may be prevented from applying for a visa for three years. Overstaying for one year or more, but leaving before deportation or removal proceedings are initiated, may result in a ban on re-application for ten years. Overstaying and being deported or removed from the U.S. generally prohibits re-entry into the U.S. for any reason. There are some exceptions to these rules in extraordinary circumstances, such as being the victim of domestic abuse or human trafficking and/or for individuals who were under the age of 18, but they are very limited.
If you have concerns about your visa or immigration status and would like to hire a lawyer to answer any of your questions and/or help guide you through the immigration process, visit Legal Services Link, complete a short summary of your legal needs, and let the perfect immigration lawyer come to you!
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