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How To Avoid Being Improperly Admitted When You Enter The U.S. With A Valid Work Visa

How The Problem Begins

Most foreign nationals who enter the U.S. on a work visa such as H-1B, L-1, O-1) are the beneficiaries of approved work visa petitions filed by a U.S. employer with U.S. Citizenship and Immigration Services (“CIS”).  When the CIS approves a work visa petition, it issues a Notice of Action/Approval Notice on Form I-797 (“I-797 Approval Notice”).  The foreign national then applies at a U.S. consulate for a “visa” by presenting, among other documents, the I-797 Approval Notice.  Each country has a reciprocity agreement with the United States which governs the length of time for which a particular type of visa may be granted.  For example, a U.S. employer may obtain an H-1B I-797 Approval Notice for an Indian national valid for three years, and the Indian national may secure an H-1B visa valid for the full three years.  However, because China and the United States have a different reciprocity agreement, a Chinese national may receive an H-1B “visa” valid only for 12 months (even though the I-797 Approval Notice may be valid for a longer period of time).

How Admission is Supposed to Work

The U.S. visa is merely a “ticket” enabling the foreign national to travel to, and apply for admission to, the United States during its period of the visa’s validity.  The visa does not govern the period of time that the foreign national may be authorized to remain in the U.S.  Under the federal regulations, a foreign national bearing a valid visa and presenting his or her I-797 Approval Notice should be admitted until the end date listed on the I-797 Approval Notice, even if the “visa” is valid for a shorter period of time.  So, in the example above, assuming both the Indian national and the Chinese national possess I-797 Approval Notices valid to the same date, both should be admitted until the same date, even though the “visas” in their respective passports may expire on different dates.  Upon their admission to the United States, both should be issued Form I-94 Departure Records valid until the same date.  (The date to which the U.S. Immigration admits a foreign national is recorded on the Form I-94 issued to the
foreign national at the U.S. port of entry.)

How The Problem Arises

Some U.S. Immigration officers mistakenly look at the visa expiration date, not the I-797 Approval Notice expiration date, in deciding to which date to admit a foreign national. For example, if the foreign national’s visa expires on August 1, 2016 but the I-797 Approval Notice will expire on September 1, 2018, the U.S. Immigration officer might mistakenly admit the foreign national only until August 1, 2016.  (As mentioned earlier, the date to which U.S. Immigration admits a foreign national is recorded on the Form I-94 issued to the foreign national at the U.S. port of entry.)  Even though U.S. Immigration might make a mistake in admitting a foreign national for a shorter period of time than should be the case, the foreign national will be considered to have violated status if he or she remains in the U.S. beyond the date written on the Form I-94.

How to Correct the Problem

There are three ways to correct the problem: (1) leave the U.S. before the date on the I-94 and, upon returning to the U.S., obtain a new I-94 with the correct expiration date; (2) ask the local U.S. Immigration (U.S. Customs and Border Protection) office to correct the mistake, or (3) file a formal extension petition or application with CIS by mail.  All of these options are time-consuming and require additional effort.  Therefore, the best way to avoid this situation is to prevent it from happening in the first place.

How To Avoid the Problem

Please always present the I-797 Approval Notice (or a copy of it) when applying for admission to the United States.  If family members are traveling on their own, they should present a copy of the employer’s I-797 Approval Notice and a copy of the Form I-94 belonging to the principal family member.  Before leaving the U.S. Immigration inspector’s booth, carefully check the entry stamp to ensure that the officer has written an expiration date that agrees with the ending date on the I-797 Approval Notice. If U.S. Immigration has not done so, please diplomatically point this out and ask the officer kindly to fix it.  Once you leave the port of entry (i.e., airport or land border crossing), it is more difficult to obtain a correction. Additionally, while it may not be feasible at the airport, we recommend that you check your electronic I-94 record at after each entry to the United States to ensure it also agrees with the ending date on the I-797 Approval Notice.


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