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Many foreign national employees will be traveling overseas in December and January for vacation or to be with family members during the holiday season. We often get questions related to travel and visa applications, and we thought it would be helpful to share the two most common questions that are asked, as well as other travel-related considerations such as maintaining travel records for recapture purposes and monitoring one’s I-94 status after each trip.

Question: My visa is expiring, do I need to renew it?

No, if you do not have plans to travel outside the United States and your I-94 is still valid.

Yes, if you have plans to travel abroad and re-enter the U.S. after your visa has expired.

There is often confusion between the visa, which is the machine-readable visa stamp in the passport with the foreign national’s photo, and the I-94 Arrival/Departure record, which used to be a small white card stapled in the passport upon admission to the United States. Since April 2013, the U.S. Customs and Border Protection (CBP) has implemented an automated version of Form I-94.

A visa entitles the holder to travel to the U.S. and apply for admission but it does not guarantee entry. It may be for single or multiple entry and may be limited in terms of validity period as determined by the U.S. Department of State’s Country Reciprocity Schedule (http://travel.state.gov/visa/fees/fees_3272.html). An immigration inspector at the port of entry determines eligibility for admission.

The I-94, on the other hand, indicates the date of entry, class of admission (visa classification), and the authorized period of stay.  It is the expiration date on the I-94 that determines how long a foreign national may remain in the U.S. (will be marked “D/S” for “Duration of Status” for those on F-1 or J-1 status).

Even if the visa expires, the foreign national may stay in the U.S. as long as his or her I-94 remains valid. In other words, the I-94 is the controlling document.

Question: I need to apply for a new visa/renew my visa at the US embassy, what documents should I bring?

Some foreign national employees refer to this process as “visa stamping.” We recommend bringing the following supporting documents to the visa interview:

  • Original Approval Notice
  • Copy of petition that was submitted to the USCIS
  • Letter from employer confirming current employment (including job title, salary, brief description of job duties, and date employment started)
  • Copies of most recent pay statements

If dependents are applying for visas, the employee should also bring the original and copy of the marriage certificate, and birth certificate(s) for any children, with English translations if necessary.

It is recommended that the foreign national refer to the instructions on the U.S. embassy’s or consulate’s website for the most up-to-date guidance. Some visa applicants may even be eligible for the Visa Interview Waiver Program (which is for designated countries, limited to certain visa categories, and may also depend on the consulate). For example, those who were previously approved for the same visa category for the same petitioner may be eligible to apply for visas without interviews.

It should be noted that some U.S. embassies or consulates may not accept visa applications from third country nationals; even if such applications are accepted, processing times may take longer. If the U.S. embassy or consulate cannot process the application or do not have enough information to process it, the foreign national may be asked to return to his or her home country to apply for the visa. This may happen particularly with third country nationals with foreign degrees or whose work experience has been mostly outside the U.S. or the country where he or she is applying for the visa.

Visa wait times for interview appointments and processing may be obtained at the following link:http://travel.state.gov/visa/temp/wait/wait_4638.html

Maintaining Travel Records and other Evidence to Recapture Time spent outside the U.S.

If the foreign national employee is close to maxing out the amount of time allowed for the visa (e.g. 6 years for an H-1B, 5 years for an L-1B), he or she should maintain good travel records each time he/she travels, and keep documentation such as airlines tickets, boarding passes, travel itineraries, etc.  It may be possible to recapture time spent abroad and extend the foreign national’s final non-immigrant visa (NIV) date, and such evidence will be helpful for future petitions.

Monitoring I-94 status

Since the I-94 has been automated and paper forms are no longer provided, it is important for the foreign national employee to go online to www.cbp.gov/I94 to retrieve and print a copy of his or her I-94 after every trip overseas. The employee should review the I-94 for any errors (such as the wrong nonimmigrant visa status or wrong expiration date) and provide a copy to us so that we can monitor his or her status.

It is recommended that our office be contacted in advance of any travel plans in the event any foreign national has specific questions related to his/her personal situation.

Written by Jenny Wang, Esq.
SW Law Group, P.C.

December 2013