The terms “visa” and “status” are often used interchangeably in informal discussions about the immigration process. However, in immigration law there is a distinct difference between these terms.
Having a valid visa does not automatically mean you have a status in the United States. In fact, you may have a valid visa but be out of status. Additionally, having current nonimmigrant status in the United States does not necessarily allow you to travel outside of the United States and return without a visa.
The differences will be described below.
The term “visa” refers to the physical visa stamp you receive in your passport at a US Consulate. If you are outside of the US, in most instances you will need to obtain a visa before entering the United States. Note that Canadian citizens are visa exempt for nonimmigrant categories except for those seeking to enter in E-1/E-2 status.
Visas will be issued following a successful interview at your local Consulate. In some instances, an interview waiver may be offered. With an interview waiver the Consulate will take your passport for visa stamping and return it to you without conducting an interview.
Interview Waiver Program
As of December 23, 2022, Department of State extended the interview waiver program to December 31, 2023. The program gives the Consulate discretion to waive interviews for certain H-2 applicants, students, professors, research scholars, short-term scholars, or specialists, and for certain temporary workers who have an individual petition approved by USCIS when they are applying in their country of nationality. Other requirements include:
- Have previously been issued any type of visa
- Have never been refused a visa unless such refusal was overcome or waived
- Have no apparent ineligibility or potential ineligibility
Certain first-time F, M, and academic J, or individual petition-based applicants may also qualify for interview waiver when applying in their country of nationality when they:
- Are citizens or nationals of a country that participates in the Visa Waiver Program (VWP)
- Have have no apparent ineligibility or potential ineligibility
- Have previously traveled to the United States using an authorization obtained via the Electronic System for Travel Authorization (ESTA)
When scheduling an interview at the Consulate, applicants will be notified if they qualify for an interview waiver. Note that eligibility for interview waiver is at the Consulate's discretion, meaning that even if an applicant meets all eligibility requirements they may still be required to attend an interview.
There are numerous nonimmigrant categories from visitor to temporary work visas to student. Visas can generally be used for multiple entries (unless specified otherwise on the visa) throughout the validity period of the visa. The length of the validity period will be determined based on the Department of State's reciprocity schedule.
Example: Client #1 is a citizen and resident of Argentina. They are the beneficiary of an approved L-1A petition. Even though Client #1 has previously been issued a B1/B2 visitor visa, they are not eligible for interview waiver because Argentina is not a VWP country. Before Client #1 can enter the United States to work in their approved L-1A role, they must obtain an L-1 visa stamp in their passport.
Example: Client #2 resides in Australia but is a citizen of Ireland. They are the beneficiary of an approved L-1A petition. They have previously entered the US using ESTA. Before Client #2 can enter the United States to work in their approved L-1A role, they must obtain an L-1 visa stamp in their passport. However, Client #2 is not eligible for interview waiver when applying in Australia. That is because they are not an Australian citizen. They would be eligible for interview waiver if they traveled back to Ireland to apply for the L-1 visa.
Example: Client #3 is a citizen and resident of Czech Republic. They are the beneficiary of an approved L-1A petition. They have previously entered the US using ESTA. Before Client #3 can enter the United States to work in their approved L-1A role, they must obtain an L-1 visa stamp in their passport. Client #3 is eligible for interview waiver.
Immigrant visas are issued to those with an approved immigrant petition (Form I-130, I-140, or I-360) and have completed Consular Processing at a US Consulate abroad. An immigrant visa differs from a nonimmigrant visa in several ways.
First, the immigrant visa is only issued for a six month period during which the visa holder must enter the United States. Second, the visa holder will be considered a lawful permanent resident as soon as they enter the United States with the immigrant visa. The immigrant visa along with entry stamp will act as proof of the visa holder's permanent resident status until the green card is produced and mailed to them.
The term “status” refers to your class of admission after you enter the United States. After each entry to the United States, you will receive an I-94 showing your class of admission and the length of time for which you have been admitted. It is important to check your I-94 online after each entry.
Once you are in the United States, you are eligible to change to another status as long as you have maintained your current status. If you have overstayed the I-94 issued at your last entry, then you would not be eligible to change to another status. You are required to leave the United States and apply for a visa before returning.
Nonimmigrants who are in the United States and have an expiring I-94 are able to apply for an extension of status. This allows them to remain in the United States while also seeking an extension. Those in visitor status should be cautious about extending their status. Good cause will need to be shown for the extension and too many extensions may raise questions about your visitor status in the United States.
Beneficiaries of an approved extension or change of status within the United States will be issued a new I-94 by USCIS. The new I-94 shows the approved extension or change of status with a new expiration date. The approval notice allows beneficiaries to remain in the United States for that duration of time.
A departure from the United States following an approved extension or change of nonimmigrant status in most instances, with some exceptions, will require attending a nonimmigrant visa stamping appointment at a US Consulate abroad.
Example: Client #4 is in the United States in H-4 status to accompany their H-1B spouse. Their employer decides to file an L-1 petition for them, as all requirements were met prior to the H-4 entry and a qualifying role is available in the United States. The Form I-129 can be filed to request a change of status from H-4 to L-1A. Once the L-1 approved, Client #4 will receive a new I-94 document showing their new status of L-1A and a new expiration date. Client #4 decides to travel to their home country six months later. They will then need to obtain an L-1 visa before returning to the United States.
Example: Client #5 is in the United States in H-1B status. They first entered in June 2019 with an H-1B visa valid from June 1, 2019-May 1, 2022 and I-94 valid to May 25, 2022. Client #4 received an extension of their H-1B status to May 24, 2025. In December 2023, they plan to leave the United States for the first time since they entered in June 2019 for a brief trip to their home country. Client #4 will be required to obtain a visa before returning, because their visa has expired and the extension of status does not allow them to return without a visa.