FAQs

Travel Issues on Temporary Visas

The issue of travel of foreign workers in the United States is a frequent one and often confusing. This document will attempt to help with some of the more common information that applies in most general cases. However, it should be remembered that each person's situation is unique and this general information may not be sufficient for every scenario. We encourage everyone to consult their company's immigration contact and seek specific guidance from their legal counsel. Things change frequently and this information may not remain valid forever.

What is a visa?
This may seem like a simple question but it is often misunderstood. A visa is a stamped document placed in the person's international passport. It is an entry document. It is NOT an authorization to remain in the United States. The visa must be valid in the specific visa category under which the person wishes to enter the U.S. It is illegal to use a visa in one category to enter when the intention is to remain here or change to a different visa category. E.g. One cannot enter as a tourist with the intention of remaining here or applying for a change of status to a student.

The visa is obtained from an American embassy or consulate abroad- not in the United States. Some visas require pre-approval by the Citizenship and Immigration Services (CIS) before the consul can issue. E.g. H-1B, O-1, L-1. Others are decided directly by the consul without approval of the CIS. E.g. B-1/2, F-1/2, E-1/2.

There was an exception to this general rule that permitted people who already held certain visas to "revalidate" their visa in the United States. This visa revalidation in the U.S. no longer exists.

There are procedures to arrange an appointment at one of the consulates in Mexico or Canada to seek a visa for those lawfully in the U.S. Generally this is only available for employment based visas. You will need to schedule an appointment at the American consulate office in Mexico or Canada; you cannot simply "show up" and apply for a visa. You may schedule an appointment through the online system at http://www.nvars.com or via phone at 900-443-3131 or 888-840-0032. Please note that when you enter Canada or Mexico you are entering another country and may be required to obtain a visa from Canada or Mexico before physically entering the country. To determine whether you need a visa to enter Canada or Mexico and how to apply for such visa, visit the appropriate website at www.mexonline.com/consulate.htm or www.cic.gc.ca/english/offices/missions.html. The American consulates and embassies are required to obtain the results of background and security clearances from the FBI, CIA, Interpol etc. before they may issue a visa to an individual. In addition individuals, from certain countries and who are working with certain technologies or chemicals in the U.S. need to undergo additional clearance procedures. The result is that it may take several days or weeks before the American consulate or embassy may issue the visa. During that time, your Canadian or Mexican authorized period of stay may expire, thereby leaving you subject to adverse immigration consequences in Mexico or Canada.

What if the visa is denied by the American embassy or consulate in Mexico or Canada?
If the visa is denied you will not be permitted to re-enter the U.S. until you return to your home country and obtain a new visa. You may not return to the U.S. first; you will be required to leave directly from Mexico or Canada.

Is my approval notice a visa?
An approval notice for an H-1B or other temporary visa issued by the CIS is NOT a visa. As noted above, visas are only issued by the consulates, not the CIS. In some cases, the approval notice will be necessary to present in order to apply for a visa. There is one exception to this.

Canadian citizens may be exempt from the obligation to obtain a physical visa in their passport before seeking entry to the United States. In those circumstances, the approval notice for certain work visas such as the H-1B, L-1, O-1 will be required to show to the CBP officer at the time of arrival. Other visa types are actually decided by the CBP officer at the time of entry such as the TN and certain dependent visas.

What is the legal document that allows me to be in the United States ?
When a person is admitted to the United States they are issued form I-94. This is the "permit" that allows that person to be in the U.S. and which also governs the terms and conditions of their stay. The I-94 is the single, most critical document there is. If the visa in the passport expires there is no problem, but if the I-94 expires there are very serious problems. Extensions and or changes of status must be filed with the CIS before the I-94 expires. If a timely extension and/or change of status is filed the person my remain legally in the U.S. while the change of status and or extension is pending even though the I-94 may then expire.

How do I get a visa in my passport
One of the most unfortunate situations that occurs, with some regularity, is a person plans a trip abroad but does not take into consideration that they cannot return until they get a new visa in their passport. They may need a new visa because the old one expired or because the one they have is not in the correct visa category they will need when they reenter.

Whenever anyone travels internationally, they MUST take into consideration the immigration rules and laws of the country they will visit. This means not only must they check into the visa requirements for the country they are going to, but they must anticipate the visa requirements to return to this country.

This is especially a problem during the holidays. People will plan vacations in July for December but never think about their visa requirements to return to the U.S. after their holiday. Additionally, they will fail to anticipate the expiration of their current visa status and seek a timely extension so that an approval will be in hand on or before the current status expires. Two general rules that everyone should try to follow are that CIS will always take longer than they should to process a case and that anything that can go wrong on a trip will. Processing of cases at CIS during the month of December is basically nonexistent. Keep these in mind.

Extensions can be filed up to six months before expiration of the I-94. Someone who wants to go on holiday in December and does not seek an extension of their visa status until mid-November is going to be very disappointed. CIS has no sympathy for pleas of plane tickets purchased, important business obligations, etc. They will not budge.

Whenever you plan a trip abroad ask the following questions:

1. Do I have a current visa in my passport which I can use to reenter the U.S.?
2. If not, have I allowed enough time during my trip to go to the American consulate and get a new visa?
3. What are the documents I will need to take with me to get the visa and do I have them?
4. Will I need to arrange an extension of my current status prior to my trip?

If you go through this checklist you will anticipate visa issues. Here are some of the things your should have with you when you apply for a visa. This list is only for employment-based visas such as the H-1B, L-1, O-1. This information does not address such other visas as the student visa (F-1), exchange visitor (J-1) etc.

Employment-based visas generally must be pre-approved by CIS. Thus you should have the original approval notice, Form I-797 (copies are not acceptable); a certified copy of the petition filed by the company from the attorney's office; recent pay stubs to prove your current, continuing employment, and a passport valid for at least six months beyond the validity date of the Form I-797. These are a minimum. You should always try to call ahead to the American embassy or consulate and ask about any other unique requirements they might have or any special filing instructions. (Some consulates only use a drop box and take up to 10 days to process a visa application). Holidays are observed for both the U.S. and host country so also anticipate closures. Also, political or civil conditions may prevent the consulate from opening or impose restrictions on people who want to apply there. Please note that all American consulates now require visa interviews before issuing most visas to individuals. You must plan accordingly because it may take several weeks to obtain an appointment.

I have a visa in my passport. What happens now?
Once you have a visa in your passport you can board the plane to come here (or cross at a land border port). Upon arrival at the Port of Entry, a CBP inspector will conduct an inspection to determine if you will be admitted to the U.S. One of the more confusing things to understand about our immigration laws is that entry is a privilege, not a right. The CBP officer makes the final decision even though the individual has a valid visa. There is no guarantee that entry will be granted. Assuming the officer decides to admit the person, a form I-94 will be prepared and placed in the passport. It is critical that you examine the I-94 and make sure it is for the right visa category and for the right period of time. CBP officers often make errors in the visa category or in determining the correct amount of time to admit a person. Check right then, it may be too late to fix an error after your have left the inspection area.

Remember the I-94 is critical. Keep track of it. Don't lose it. Don't let it expire.

This document does not cover many exceptions such as brief trips to Canada and Mexico, visa waivers, the penalties for fraud or exceptions for those in adjustment of status proceedings and the use of advance paroles. Again, it is always best to seek individual legal advice about your travel plans as far in advance as possible.

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