Things You Should Know
Visas v. Status
The relationship between the visa’s period of validity and the alien’s status in the US must be clearly understood. First, the visa serves as a travel document to allow the alien to whom it was issued to travel to the US and apply for admission into the US. The alien must apply for admission to the US during the validity period of the visa. The visa alone does not, however, confer any immigration status or employment authorization, and the validity of the visa does not relate whatsoever to the period of time the alien is authorized to remain in the US. The expiration of the visa following the alien’s entry into the United States does not necessarily affect the alien’s authorized stay in the United States.
The period of authorized stay is indicated on the Form I-94 issued to the alien and is unrelated to the period during which a consular officer has authorized an alien to apply for admission to the US under the classification indicated on the visa. The I-94 is issued at a US port of entry following an interview by an immigration officer to determine whether the alien is eligible for admission in that particular nonimmigrant category.
The Form I-94 indicates the classification under which the alien is admitted and the period of authorized stay in the US under that classification. Although the period of authorized stay is usually expressed with a beginning and ending date, for some nonimmigrants classifications the authorized period of stay may be expressed as “D/S,” meaning for duration of status.
Visa Exemption for Canadians and Mexicans
With limited exceptions, citizens of Canada are exempt from the requirement to obtain visas in order to travel to the US as nonimmigrants. Citizens of Mexico may obtain Border Crossing Cards in lieu of visitor visas. Border Crossing Cardholders are restricted to visits of 72 hours or less and within 25 miles of the border. Mexican visitors who wish to stay in the US for more than 72 hours and travel within any of the 50 states must obtain Form I-94, which is stamped at the US ports of entry.
Extension of Stay and Change of Status
Certain nonimmigrant aliens who are present in the US may extend their nonimmigrant stay under the same classification or change their nonimmigrant status (from one nonimmigrant classification to another nonimmigrant classification). Aliens applying to extend or change their status must file the application before the expiration of current status and must establish that they have maintained their nonimmigrant status. This means that if an alien violated the terms of his or her admission (e.g. accepted unauthorized employment before change of status was approved), the change of status or extension of status petition will be denied. Applications for extension of stay and change of status are generally adjudicated at one of the Regional Service Centers of the Department of Homeland Security, US Citizenship and Immigration Services (USCIS). Notification that an alien has been granted extension of stay or change of status is provided on a Form I-797 Notice of Action that typically includes a tear-off replacement Form I-94 at the bottom of the Form I-797. This I-94 serves the same purpose as the original I-94. It indicates the alien’s new period of authorized stay under the classification and, if appropriate, the new nonimmigrant status of the alien.
Adjustment of Status
Aliens who are outside of the US and seek permanent residence in the US apply for an immigrant visa at US consulates abroad and are then admitted into the United States as lawful permanent residents. Under certain circumstances, aliens who are present in the US may become permanent residents without having to leave the US.4 This process, which is administered at the discretion of the USCIS, is called “adjustment of status.” It differs from the “change of status” process where an alien present in the US changes from one nonimmigrant classification to another. In order to qualify, eligible aliens generally must be in legal immigration status on the date of filing the permanent resident application and must have maintained lawful status since admission into the United States.
Eligibility for Employment
Employers should be aware of the aliens who are authorized to work in the US and whether such employment is restricted in any way. USCIS regulations establish three classes of aliens who are allowed to work in the US: (1) aliens authorized to work incident to their immigration status, (2) aliens who are permitted to work for a specific employer incident to their status, and (3) aliens who must apply for and obtain permission from the USCIS in order to accept employment to the US.
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