What is a Visa What Is the Significance of Its Validity Period?

By Noelle McLaughlin

What is a Visa & What Is the Significance of Its Validity Period?

A visa is a stamp affixed in a foreign national's passport which grants to the bearer permission to apply for admission to the United States. For some nonimmigrant statuses such as H-1B, L-1, R-1 or O-1, a petition filed by a U.S. employer must first be approved by USCIS on behalf of the foreign national beneficiary before a visa can be applied for and issued. For other statuses, however, where there is no petition requirement, individuals may apply to the consulate directly for a visa without first filing anything with USCIS. The latter category includes dependent family members of the aforementioned visa classifications as well as B-1 and B-2 visas for visitors and E-1 Treaty Traders and E-2 Treaty Investors.

Each visa is issued with a start and end date which is noted on the face of the document. The validity of a visa constitutes window in which an applicant may make application for admission at the port of entry to the United States. The validity of a visa has no bearing on the length of time for which the alien may be admitted. Rather, the period of admission is governed by several other factors including the validity of any underlying approved petition; the purpose of entry; and the validity of the applicant's passport, among other factors. The period for which the foreign national is admitted to the U.S. is governed instead by the I-94 Form issued at the port of entry. The expiration date noted on the I-94 is the date by which the person must either file for extension of stay, change of status or adjustment of status or, failing that, must depart the U.S.

The maximum validity of any nonimmigrant visa is 10 years and the length of visa validity is limited by visa reciprocity schedules. Typically the only visa classification in which visas are issued for the full 10 years is B1/B2 visas for visitors. However, the period for which individuals with this type of visa are actually admitted to the United States upon a single visit is typically only 6 months, with some exceptions.

If officers have serious concerns about whether the applicant will abide by the terms of the visa, then consular officers are instructed to refuse the visa rather than shorten the visa validity period.

When a passport containing a valid visa expires, the expiration of the passport has no effect on the validity of the visa. Thus individuals may have a visa which is valid for longer than the passport in which it is stamped. In such cases, once the traveler obtains a new passport he may continue to use the visa in the expired passport together with the new passport which is valid for a longer period. He will simply need to carry both passports when traveling.

Automatic Visa Invalidation of Visa Under INA § 222(g)

An alien who was admitted on a nonimmigrant visa and who remains in the U.S. beyond the period of authorized stay noted in his I-94 Form, and who does not timely file for an extension of stay or change of status, will begin to accrue unlawful presence towards a three or ten year bar from the United States. This overstay also triggers INA § 222(g), which states:

1. In the case of an alien who has been admitted on the basis of a nonimmigrant visa and remained in the United States beyond the period of stay authorized by the Attorney General, such visa shall be void beginning after the conclusion of such period of stay.
2. An alien described in paragraph (1) shall be ineligible to be readmitted to the United States as a nonimmigrant, except-
1. on the basis of a visa (other than the visa described in paragraph (1) issued in a consular office located in the country of the alien's nationality (or, if there is no office in such country, in such other consular office as the Secretary of State shall specify); or
2. where extraordinary circumstances are found by the Secretary of State to exist.

Thus an overstay past the I-94 expiration date, without a timely filing for another benefit such as change of status or extension of stay, results not only in accrual of unlawful presence but the automatic voidance of the foreign national's current visa and a lifelong requirement that he apply for a visa only in his country of nationality. Individuals who trigger this provision, therefore, may no longer apply for nonimmigrant visas as third country nationals in a country such as Canada or Mexico for convenience or to reduce travel costs. Moreover, an often overlooked consequence of triggering INA § 222(g) is that the individual is barred from using the Visa Waiver Program even if otherwise eligible, because the statute states that such individuals may not be readmitted to the United States as a nonimmigrant except on the basis of a visa. Thus visa waiver is not available to that individual going forward.

I overstayed. Can I come back?

Depending on how long you overstayed, and whether you have had any previous immigration violations, you may or may not be subject to a temporary or permanent bar from the United States. There are some exceptions and waivers for reentering the U.S. after an unauthorized overstay and we recommend that you contact the attorney handling your case to discuss the specific circumstances of your case.