Immigration Dispatch

July 2004
Frost Brown Todd LLC

The Difference Between a Visa and Visa Status

A common source of confusion is the difference between a “visa” and “visa status.”  An understanding of the difference is critical to a foreign national’s ability to maintain lawful immigration status and to avoid adverse immigration consequences.

A visa is a travel document affixed to a foreign national’s passport by a U.S. consulate.  The sole purpose of the visa is to enable the visa holder to present his or her passport containing the unexpired U.S. visa to a U.S. Customs and Border Protection ("CBP”) Officer at a U.S. port of entry (such as an airport or land border crossing) and ask CBP to admit the holder into the United States in the visa classification cited in the visa.  Possession of a visa does not guarantee that the CBP officer will admit the foreign national into the U.S.  CBP views the presentation of the passport and unexpired U.S. visa as an application for admission.  In other words, the visa is simply a document that says to CBP “Here I am!  Please allow me to enter the U.S. in the classification on this visa to do what this visa category permits someone to do under U.S. immigration law.”

If CBP decides to admit the foreign national to the United States, it will complete and staple a small index-weight card (known as an “I-94 departure record”) into the passport.  Airlines dispense blank I-94 cards and instructions to passengers on U.S. bound flights.  Foreign nationals from certain countries who are coming to the U.S. as short-term visitors complete pale green I-94W cards to indicate participation in the Visa Waiver Program.

As we noted above, if the CBP officer finds the foreign national to be admissible, the CBP officer issues an I-94 card that specifies the visa classification of admission and the length of the authorized stay.  The issuance of the I-94 card confers “visa status” onto the visa holder.  It is the I-94 card that (i) controls the foreign national’s length of permitted stay and (ii) determines the range activities in which the foreign national may engage.  By contrast, the visa no longer has any operative legal effect in this regard once CBP admits the visa holder.  With the exception of the trips of less than 30 days to Canada or Mexico, the foreign national must surrender the I-94 card upon U.S. departure and obtain a new one upon each U.S. re-entry.

It is incumbent upon the foreign national to ensure that his or her I-94 card never expires.  Substantial penalties apply if one allows the I-94 card to expire before departing the United States.  These include an automatic invalidation (voiding) of the existing visa in the foreign national’s passport and a prohibition on applying for a new visa at any U.S. consulate outside the holder’s home country if the foreign national overstays the I-94 card for even one day.  Foreign nationals who overstay their I-94 cards by more than 180 days and then depart from the U.S. are barred from returning to the U.S. for a period of three years, and there is a 10-year bar that applies to those who overstay their I-94 card by more than one year.

In some cases, CBP may issue a I-94 card for a lesser period than the validity period specified on the visa in the passport.  The most common situations that we see are: where the holder’s passport is due to expire soon; due to a CBP mistake; or because of the way that the rules apply to certain visa categories such as E-2 visa status (where admission is typically for two years even though the visa may be valid for five years).  Therefore, it is very important for foreign nationals to carefully check their I-94 card upon entry and notify their employer’s representative or  lawyer at least a few months before the expiration of the I-94 card so that the company can help to extend the foreign national’s visa status if necessary.

The Current Status of the Machine-Readable Passport Requirement Applicable to Visa Waiver Program Countries

As our readership can explore in greater detail on our clients-only Extranet website, citizens of 26 countries that have a superb historical record of compliance with U.S. immigration laws may travel “visa free” to the United States for business trips and vacations provided that the trip is for less than 90 days and the foreign national has a valid passport.  This program is known as the Visa Waiver Program (“VWP”).

As part of the tightening of security in the wake of September 11, the U.S. Congress enacted a law to require foreign nationals to present passports that contain machine-readable features in order to enter the U.S. under the VWP.  The USA PATRIOT Act mandated an October 1, 2003 start date by which all foreign nationals entering the U.S. under the VWP must hold machine-readable passports.  Due to the difficulty that the foreign governments have had in developing the necessary technology and the anxiety that this created in the U.S. business, tourism and academic communities, the U.S. government delayed the implementation of the machine readable requirement.

However, effective October 26, 2004, all VWP travelers must present a machine readable passport for visa-free entry.  The October 26, 2004 date also coincides with a second new requirement that the foreign passport also contain biometrics.  Biometrics is an objective measurement of a physical characteristic of an individual that may be captured in a database, such as a fingerprint.  U.S. consulates will, therefore, collect scanned fingerprints from all visa applicants beginning October 26, 2004.  The need for biometrics, capturable only from an applicant in person, is what triggered the demise of the popular visa revalidation program run by the U.S. Department of State in the U.S.

Because further delay of the October 26, 2004 machine readable passport deadline will require an act of Congress, and because there has been an uptick in Congressional activity on this issue, we believe it is likely that Congress will extend the deadline for obtaining a machine readable passport for at least another year (though the Bush administration has been lobbying for a two-year extension).

Recent Increase in Number of Denials Both of Visa Applications at U.S. Consulates and Petitions Filed with U.S. Citizenship and Immigration Services (“USCIS”)

In recent months, members of the American Immigration Lawyers Association (“AILA”) have commented upon a significant increase in the number of denials that their clients have experienced at U.S. consulates abroad (particularly in China and India), and in petitions filed with USCIS service centers.  Recent data that are beginning to emanate from government sources confirm that this is not a perception, it is a reality.

In the visa application context, it appears that U.S. consular officers are, to a degree never before witnessed, scouring applications to locate inconsistencies and to require that each element of a case be proved via tangible evidence.  For example, some consular posts in India want to see photographs of the inside and outside of the facility where an H-1B beneficiary will work and substantial financial documentation concerning the viability and staffing level of the employer.  Other U.S. consular posts are seemingly readjudicating approved H-1B cases decided by USCIS to redetermine if, for example, a visa applicant with a Physics degree is really qualified to perform a Computer Systems Analyst job.

In the USCIS service center context, it appears that the memo that we highlighted in our June 2004 issue which implemented a new policy that seeks to encourage USCIS officers not to issue Requests for Evidence (“RFEs”) but instead to deny petitions outright has had an immediate and dramatic effect in pumping up USCIS’ denial rate.

What can you do?  Here are our suggestions:

(a)    with respect to consular visa applications, involve the company’s immigration point person or human resources specialist and the responsible Frost Brown Todd attorney well in advance of your plans to travel abroad (preferably several months in advance).  The company and FBT can help determine if you need to apply for a visa at a U.S. consulate and ensure that you collect the necessary evidence that you will need to increase the odds of success when you file a visa application.  Some U.S. consular posts have unique requirements and preferences that are discussed on their websites, but there may be issues in your case that you will not be aware of without consultation with an attorney; and

(b)   with respect to petitions filed with USCIS, Frost Brown Todd can help you to anticipate what elements of the case may trigger a denial and work with you to proactively collect and submit evidence that will increase the likelihood of success.

Department of State Instruction Regarding Handling of FY 2005 H-1B Visa Applications

Department of Homeland Security regulations prohibit the entry of a foreign national in H-1B visa status more than 10 days before the starting employment validity date stated on the USCIS Approval Notice.  Therefore, the U.S. Department of State, which operates U.S. consulates abroad, typically prohibits the issuance of H-1B visas more than 10 days before the petition validity date.

In the case of foreign nationals who, because of the H-1B “cap,” hold H-1B Approval Notices that bear a start date of October 1, 2004, U.S. consular posts normally will not accept an application before September 20, 2004.  Therefore, in the wake of the H-1B cap hitting on February 17th, we have been advising our clients who secure H-1B Approval Notices for foreign national employees that bear a start date of October 1, 2004 to seek an appointment to apply for a visa on or after September 20, 2004 (if, of course, there is a need to travel abroad for business purposes or to activate the H-1B approval because the employee could not remain in the U.S.).

Earlier this year the U.S. State Department issued a “cable” giving U.S. consulates the authority to accept H-1B visa applications earlier than September 20, 2004 if the consulate anticipates being flooded with H-1B visa applicants in late September.  If the U.S. consulate does not handle many H-1B requests, the cable indicates that the consulate should not accept H-1B visa application earlier than 10 days before the H-1B petition start date.  Therefore, U.S. Consulates will exercise this authority on an individual basis, and H-1B visa applicants must check with the U.S. consulate where they will apply to determine the consulate’s policy.

Please note that even if the U.S. consulate issues an H-1B visa early, the H-1B visa holder may not use the issued visa to enter the U.S. until 10 days before the underlying H-1B starting validity date.  Therefore, obtaining a visa earlier would likely only be advantageous if the visa applicant is already abroad and plans to remain abroad until starting his or her U.S. employment.  Anyone thinking of applying for an H-1B visa early should check with Frost Brown Todd about the advisability of this approach in their particular situation.