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Maintaining a Valid I-94

A friend and colleague, Richard Costa, an excellent immigration attorney in Boston, sent the following letter to his clients. Because of its importance at this…

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A friend and colleague, Richard Costa, an excellent immigration attorney in Boston, sent the following letter to his clients. Because of its importance at this time of the year, as so many travel, this letter, with full deference and attribution to its author, appears below:

During the post-holiday period, many foreign nationals will be returning to the States from international travel.  We wish to underscore the importance of ensuring that a properly endorsed Form I-94* is issued by the Customs & Border Protection Officer at the port of entry.  This is particularly important for foreign nationals entering the U.S. for employment on the basis of an approved petition for H-1, L-1, or O-1 nonimmigrant status.

These foreign nationals, with few exceptions**, must present a valid passport, a valid nonimmigrant visa issued by an American Consul, and a current, original approval notice issued by the Immigration Service on Form I-797.

There are many situations where the expiration date of the Consular-issued visa is earlier than the expiration date of the most recent I-797 Approval Notice.  The applicant is entitled to be admitted to the expiration date of the Form I-797 Approval Notice provided the passport is valid for at least six months beyond the requested date.  This is the date that should be entered by the Customs Officer on the new Form I-94 that is issued and stapled into the applicant’s passport.

If the nonimmigrant worker remains in the U.S. beyond the period of time indicated on the Form I-94 issued at the time of last entry, he/she will be illegally in the U.S. with all the attendant consequences.  This is true even if they possess a valid Form I-797 with a later expiration date.

Here are a two of the most common examples where this is likely to occur - there are others:

Example 1:  The H-1 applicant has a Consular-issued visa valid only until February, 2010. Because he and his employer filed for and were granted an extension of stay prior to his departure, he has a new Form I-797 Approval Notice valid until December, 2011.  However, at Customs he presents the old approval notice with a February, 2010 expiration date.  He will only be admitted to that date.

If he does not plan to travel abroad again prior to the expiration of this Form I-94, he and his employer must file a new H-1 petition and request for extension of stay right away in order to maintain legal status.

If he does plan to travel abroad again prior to the February, 2010 expiration of this Form I-94, he can seek reentry during the limited period of time that the Consular visa remains valid, being sure to present the correct Approval Notice upon his return.

If he does travel abroad again prior to the expiration of this Form I-94, but will not return until after the Consular visa has expired, he must make arrangements to apply for a new entry visa at an American Consulate abroad before returning.

 Example 2: The H-1 applicant has a Consular-issued visa valid until July, 2010.  Because he changed jobs recently, he presents a new Form I-797 Approval Notice from his new employer valid until December, 2011.  He should be admitted until December 2011.  If his Form I-94 is mistakenly issued with an expiration date of July, 2010, he must have his employer apply for an extension of stay by filing a new H-1 Petition prior to July, 2010, unless, as above, he will be traveling abroad again before the Form I-94 expires.  If he remains in the U.S. beyond July, 2010 in reliance on the Form I-797, he will be in the U.S. illegally.

 It matters not whether the mistake is made by the applicant (by presenting the wrong approval notice) or the Customs Officer (in failing to grant the proper period of time).  In either case, the applicant is bound by the date on the Form I-94 issued at the time of last arrival-and must take corrective action  in order to maintain legal status.

 *Form I-94: this is the Arrival-Departure Record which is filled out by the traveler en route to the U.S. and then presented to the Customs Officer with their passport and Form I-797 Approval Notice.  Once the decision is made to admit the applicant to the U.S., the Customs Officer will write the Class of Admission (e.g. H-1B or L-1A) and the date to which admitted on the document and staple a portion in the passport. Remaining in the U.S. beyond this date is a violation of law.

 

**Special rules govern brief travel to Canada or Mexico only.

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