When a foreign national applies for admission to the United States as a nonimmigrant, there are several documents which could affect the duration of his admission.
When a foreign national applies for admission to the United States as a nonimmigrant, there are several documents which could affect the duration of his admission. This article will provide a brief overview of the various entry documents and how they can affect the period for which CBP issues the Form I-94, Arrival/ Departure record.
Passport Expiration Date
The first and most obvious document that can affect the period of admission is the foreign national's passport. 8 CFR 214.1(a)(3)(i) states in the pertinent part,
Upon application for admission, the alien must present a valid passport and valid visa unless either or both documents have been waived. …The passport of an alien applying for admission must be valid for a minimum of six months from the expiration date of the contemplated period of stay, unless otherwise provided in this chapter, and the alien must agree to abide by the terms and conditions of his or her admission….
(Emphasis added). Under a plain reading of this rule, a foreign national can be admitted only to the date six months in advance of his passport expiration date, the obvious rationale being that the U.S. government wants to ensure that the foreign national is able to return to his home country at the conclusion of his stay. However, there is one exception, for nationals of countries who are members of the “Six Month Club.” This rule is outlined in 9 FAM 41.104, Exhibit I, which also includes a list of participating countries. The countries in the club have entered into international agreements with the U.S. stating that their nationals may use their passports as a valid document to enter their country within the 6 months after their passport expiration date. Thus the US will admit nationals of these countries to the United States right up until their passport expiration date.
The practical upshot of this rule, since most countries are included in the Six Month Club, is that typically people are admitted through their passport expiration date. This can often cut short a foreign national's period of admission. For example, if a Canadian TN applicant is eligible for a three-year period of admission but his passport is due to expire in one year, his I-94 will be issued with an expiration date that matches his passport expiration date. However, CBP will note in their computer system that the person's TN has been authorized for three years, such that when the person reenters the U.S. for the first time using the new passport, he can go to secondary inspection to be issued a new I-94 that is valid for the remainder of the initial 3 year period. If this is done at a land border crossing, he will be charged a $6.00 USD fee for I-94 issuance (though this fee is not collected at the airport since it is included as a surcharge in the cost of the airfare). At neither the airport nor the land border crossing with the applicant be required to submit a new TN application or pay the $50 TN application fee again.
It should be noted, in the case of Canadian citizens, that if the foreign national possesses an alternative, valid entry document such as a NEXUS card, which is valid for a period longer than the person's passport, that the I-94 validity period can be linked to the NEXUS card instead so that the I-94 will not have to be cut short.
When CBP cuts short a traveler's admission period due to the passport expiration date, this is not an error and it is therefore not something that can be corrected in Deferred Inspection. Travelers sometimes fail to make note of their I-94 expiration date, particularly if they believe that they are authorized to remain in the U.S. through the date listed on their I-797 Approval Notice but do not realize that, after traveling abroad, their I-94 is issued for an end date prior to the expiration date on their approval notice. It is the I-94 and not the I-797 that governs the authorized period of stay. Even if the I-797 was issued with a USCIS I-94 attached to the bottom, a more recent I-94 issued at the port of entry trumps the one on the approval notice under the Last Action Rule.
Visa Expiration Date
The second type of entry document that influences admission is a visa. Foreign nationals, in most cases (but with some noteworthy exceptions, such as all Canadian citizens except those applying for admission in E or K status), must have a visa that is valid at the time that he applies for admission. However, as long as the visa is valid on the date of admission, the expiration date has no bearing on the period of admission. 20 C.F.R. § 41.112(a) confirms that,
The period of validity of a nonimmigrant visa is the period during which the alien may use it in making application for admission. The period of visa validity has no relation to the period of time the immigration authorities at a port of entry may authorize the alien to stay in the United States.
Thus, even if a foreign national's visa is due to expire the day after his admission, he may be admitted for whatever period of time he is otherwise entitled under the regulations governing his status. However, CBP officers commonly erroneously admit a person only through their visa expiration date. If this occurs, the person can get their I-94 corrected at one of CBP's Deferred Inspection sites.
I-797 Approval Notice Expiration Date
The third type of document that can affect the period of admission is the Form I-797, Approval Notice. Not all nonimmigrant statuses require that the beneficiary obtain an approval notice in advance. The rules in section 8 of the Code of Federal Regulations govern whether a petition must be approved in advance for the relevant status. For example, those foreign nationals seeking admission in H, L, O, P, and R status must have a petition approved by USCIS before they can apply for a visa (if required) or admission to the United States. For those status that require petition approval, the Form I-797 Approval Notice contains validity dates and the person cannot be admitted to the U.S. past the expiration date noted on the approval notice.
There are some nonimmigrant statuses, such as B-1 and B-2, or any dependent classifications, for which it is not possible to obtain an I-797 Approval Notice in advance of the person's entry to the United States. For these individuals, the only documents presented at the port of entry will be the passport and visa and the rules outlined above will govern the period of admission.
Another example of a nonimmigrant status for which petition approval is not required is E-1 Treaty Traders and E-2 Treaty Investors. The regulations do not require prior petition approval for E visa holders. Thus the foreign national, at the time of admission, would usually only be presenting his E visa in his passport. In most cases E visas are issued with a 5 year validity period, subject to reciprocity or possible limitations if the visa holder has obtained a waiver of inadmissibility. As noted above, the period of admission is not limited by the visa validity period, but is governed by the regulations. In the case of E visa holders, 8 C.F.R. § 214.2(e)(19) provides for up to a 2 year admission period. This is sometimes referred to as a “rolling admission,” because each time the E visa holder is readmitted he can be admitted for a full two year period, valid from the date of entry. For example, someone who has a 5 year E visa could leave the U.S. and reenter the day before his visa expires and be readmitted for a full two year period, thus lawfully remaining in the U.S. for a total of almost 7 full years if he does not travel outside the U.S. again after the visa expires.
There is still a third group of nonimmigrants for whom an I-797 Approval Notice is not required, but is optional. Most notably, Canadian TN applicants were recently given the option of filing an I-129 petition with USCIS in advance of applying for admission at the border. In those cases, if the traveler opts to file the petition, and presents it as the basis for entry at the border, then the expiration date on the approval notice governs the period of admission just as if a required petition had been filed and approved.
The visa, approval notice and passport validity period for foreign nationals entering the United States can all impact the period for which the person is admitted as a nonimmigrant. The interplay of these documents can be confusing, and as a result can sometimes lead to erroneous I-94 admission periods. Where CBP has issued an I-94 with an erroneous expiration date, it can be corrected at Deferred Inspection. The onus is on the traveler, however, to make careful note of his I-94 expiration date each time he enters the United States to ensure that he is aware of the period for which he has been admitted.