Sunday, November 23, 2014

Regarding the extension of validity periods of visas to the U.S.

You probably have heard that effective November 12, 2014, the U.S. and China agree to extend, reciprocally, the validity period of certain visas to each other’s country. The visas affected are those for business, tourism, student study and exchange visitor activity.

In particular, nationals of China who seek the following visas to the U.S. will have the following lengthened validity periods:

Student and dependent(s) (F-1, F-2, M-1, M-2) 60 months
Business (B-1)                                                                   120 months
Tourist (B-2)                                                                       120 months
Business-tourist (B-1/B-2)                                            120 months
Exchange visitor and dependent(s) (J-1, J-2)            120 months
These changes had no effect on H-1B validity periods, which remain at 12 months.
Please keep in mind, however, that the validity period of a visa can differ from the amount of time a person with that visa may remain lawfully in the U.S. These two concepts are different. Therefore, a non-immigrant visa holder must address two separate questions with regard to being admitted to the U.S.:
Question 1: During what period of time is this visa valid for entry into the U.S.? Question 2: Once admitted into the U.S. with this visa, how long may the person remain lawfully in the U.S., based on this visa?
Let’s address question 1.
A holder of a U.S. visa has the ability to be admitted to the U.S., subject to final approval of an immigration officer, and subject to the terms of that visa. This ability to enter the U.S., however, does not last forever. Rather, it has a particular starting date and a particular ending date. Before the starting date or after the ending date, such a visa is invalid for entry into the U.S. That is, the visa is valid only between the starting date and ending dates, and this period is the validity period of the visa.
The validity period of the visa determines the period of time a person can use the visa to enter the U.S. However, once the person actually is admitted into the U.S., that visa is irrelevant as far as determining how long the person may stay lawfully in the U.S. In other words, a person could be in lawful status in the U.S. even with an expired visa. Conversely, a person could hold a valid visa, having been admitted into the U.S. with that visa, but yet lack lawful status in the U.S., for example because of staying too long in the U.S.
For example: a person from China, could receive a B-1 visa with a 120 month validity period. However, having such a visa DOES NOT MEAN that the person, once admitted with that visa, can remain lawfully in the U.S. for 120 months. Rather, the person would need to check his or her admitted-until date, a concept discussed below. Such a date could be only six months from the time of admission.
The November 12, 2012 changes refer to this visa validity period.
Now let’s look at question 2.
Once a person is admitted to the U.S. with a non-immigrant visa, that person generally is assigned an “admitted until” date. So long as the person otherwise complies with the conditions of the visa class, that person would be in lawful status until this admitted until date. Without further action, therefore, such a person would need to leave the U.S. on or before this date.
While most non-immigrant visa holders are admitted until a particular date, others instead are admitted “for duration of status.” People so admitted are those with F, J and M classifications. Such people do not have a definite date that they are admitted until. Instead, such persons, so long as they maintain the conditions of their status, are considered lawfully present in the U.S.
A non-immigrant, at time of admission, is “given” a form I-94, on which is recorded, among other things, that person’s admitted-until date. This date might be a real date, or else it will be shown as “admitted for duration of status,” sometimes abbreviated as D/S.  In previous years, the I-94 was a real paper document. Now, however, the I-94 is stored electronically on the web site of U.S. Customs and Border Protection (CBP).
The November 12, 2014 changes in U.S. policy have NOTHING to do with a person’s admitted-until date, but rather only with a visa validity date.
In summary:
-          To determine when you are able to enter the U.S. with a given visa, look at the visa stamp itself and see its validity dates. The November 12, 2014 changes lengthened such dates for F, M, J and B visas.
-          To determine how long you may remain in the U.S. lawfully, look at the I-94
-          Visa validity dates and admitted-until dates are separate concepts.

I hope you find this information helpful.
This blog post does not constitute legal advice and does not create an attorney-client relationship.
Calvin Sun, Attorney at Law 610-296-3947, cell 215-983-3723
Weixin calvin_t_sun