In listening to people (lawyers and non-lawyers) speaking about immigration I often think, like Inigo Montoya in The Princess Bride, “You keep using that word. I do not think it means what you think it means.” So, I thought I would try to bring some clarity to some terms we use all the time (Lizzie B already handled the acronyms), which can actually be confusing or which can be misused.
Surprisingly, the most common one that I hear misused or misunderstood is visa.
A visa allows a foreign national to enter the US for a specific length of time and for a specific purpose. The term refers to the actual stamp in the passport with a foreign national’s picture. As the State Department warns:
Having a U.S. visa allows you to travel to a port of entry, airport or land border crossing, and request permission of the Department of Homeland Security (DHS), Customs and Border Protection (CBP) inspector to enter the United States. While having a visa does not guarantee entry to the United States, it does indicate a consular officer at a U.S. Embassy or Consulate abroad has determined you are eligible to seek entry for that specific purpose.
The “visa stamp” should be distinguished from a “visa petition” which is the application that is filed with US Citizenship & Immigration Services (USCIS) in the United States to generate an I-797 approval notice which in turn is presented to the US Embassy/Consulate abroad to obtain a visa stamp. Some visas can simply be obtained by applying directly to the US Embassy/Consulate abroad. Others like the H-1B or O-1 require that a petition is approved by USCIS in the United States first. Foreign nationals then present the proof of the approved petition (I-797) to the US Embassy/Consulate abroad in order to obtain a visa stamp in their passport. Often people can confuse the I-797 with a visa but it is a dangerous mistake. With the exception of Canadians, the I-797 cannot be used for travel to the US other than to present to the US Embassy/Consulate abroad to obtain a US visa stamp and subsequently to the CBP inspector along with the visa stamp.
2. Visa Waiver
Also commonly misunderstood is the visa waiver or ninety-day admission for visitors coming to the US for tourism or business. While most individuals need to apply for a B visa at a US Embassy/Consulate in their home country, citizens of certain countries may travel to the US without a visa. The admission under a visa waiver is for a maximum of ninety days and cannot be extended or changed to another status (unless someone marries a US citizen and applies for a Green Card). Foreign nationals seeking admission to the US under the visa waiver must apply for a security clearance under the Electronic System for Travel Authorization (ESTA) and pay a fee. These days, therefore, I hear people say, ESTA, visa waiver, and B visa interchangeably when speaking about their visitor status, and it’s important to know which is which.
Which brings us to the question, what is status? This one is just confusing. Immigration “status” refers to legal permission to remain in the US under specific conditions as defined by the visa stamp in the passport and by the petition approval or other visa document. For example, an F-1 student would have a Form I-20 as a visa document and an H-1B computer programmer would have a petition approval notice (Form I-797). In most cases the duration of the visa document will match the duration of the visa stamp discussed above. But sometimes the visa document may be longer or shorter than the visa stamp. For most international travel both the visa document and the visa stamp must be valid. Once presented for entry to the US, these will allow CBP to admit a foreign national in the status corresponding to the documents presented. Foreign nationals will receive an admission stamp which will show a visa type and the amount of time they have been admitted.
For example, if a British national presents a passport with an H-1B visa stamp and an I-797 petition approval both valid until June 13, 2017, the immigration officer will admit the British national in H-1B status valid until June 13, 2017, by issuing an I-94 record valid until June 13, 2017, and by stamping her passport to show H-1B and June 13, 2017. (CBP may add the extra ten days grace period allowed at the end of the visa status). So her status in the US is H-1B and it is valid until June 13, 2017. If she next travels on December 18, 2015, she loses that status when she leaves the US. Foreign nationals can only have a visa status if they are physically in the US. She can regain the status by presenting the visa stamp and I-797 approval notice when she next re-enters the US.
This is the proof of admission to the US and is a record of a foreign national’s status in the US. Foreign nationals only have an I-94 if they are actually in the US. The I-94 number or “Arrival/Departure Record” is issued by CBP whenever a foreign national enters the US. This record confirms that they have been legally admitted to the US in the specific visa status, and for the appropriate duration of time. For H-1B visa holders this generally corresponds to the end date of the I-797. For F and J visa holders the amount of time is indicated by the notation “D/S” which means they can remain in the US for the Duration of Status of their student or scholar program and any related Optional Practical Training. As we previously discussed, foreign nationals should always check their I-94 electronic record to ensure it accurately reflects their status.
5. Adjustment of Status or Change of Status
This is a small one that can easily be sorted out by context but it is one of my pet peeves. The procedure which changes (adjusts) a non-immigrant visa status to permanent resident status while in the US is an Adjustment of Status. For example: a woman enters the US under L-1 or H-1B status then later while in the US, marries a US citizen. She can apply for an Adjustment of Status from L-1 or H-1B to permanent resident without leaving the US.
In contrast, a change of status refers to a change from one nonimmigrant status to another nonimmigrant status. For example, a man who works as an architect in H-1B status but then changes visa categories to O-1, would usually request a change of status from H-1B to O-1. In both cases, foreign nationals must show they are maintaining their status (i.e., doing the job they said they would at the salary they stated they would receive) in order to adjust or change status.
Why These Are So Important to Get Right
So, having read the article you think, gosh, that Protima is one persnickety person! It’s all semantics. What does it matter? Some examples may help to explain why I care so much:
- Brazilian artist calls, and says her O-1 visa is expiring. Attorney misunderstands and launches into a renewal of the O-1 petition only to discover that it was actually the visa stamp that was expiring and the petition in fact still was valid for two more years. The Brazilian artist only needs to go back to the US Embassy/Consulate for a new visa stamp and does not need a renewal of the petition.
- New attorney tells more senior attorney that client changed their status and now is out of status because change was denied. In reality the client was an adjustment of status applicant, the denial of which could make the client deportable from the US, which is more serious.
- Attorney emails client to extend their L-1 visa petition. Client writes back that he does not need a new visa because his L-1 is valid for two more years. Client was issued a visa stamp that was valid beyond the validity of the L-1 petition itself. Client cannot use the visa stamp unless the L-1 visa petition is extended. In fact client’s status likely expires on the date the current L-1 petition expires, making it even more important that the extension is filed.
- New client tells attorney that her visa is valid for ten years and that she has been in US for two years. While the client is indeed correct in that her B visa stamp is valid for ten years, she was only admitted for six months on her last entry which is generally the maximum amount of time a visitor can be admitted. Her status in the US expired even though she thought she was fine to stay because her visa stamp was valid for so long. If she leaves the US now she may be barred from coming back to the US because of how long she has overstayed her visa status.
In the end a good attorney should be able to ask questions and investigate the details of a foreign national’s background to get to the bottom of any verbal miscommunication but using the correct terminology should get us all to the end goal much faster!