Visa Information: The Basics

The following is a basic review of relevant business immigration law terms and concepts:

Visas vs. Visa Status

As an initial concept, it must be understood that there is a distinct difference between a "visa" and a person's "visa status" in the United States. A visa is a document stamped into a foreign national's passport prior to entering the United States. A visa indicates what type of status or classification a foreign national will seek AFTER entry and admission into the United States. A person, for example, who wishes to attend a school in the United States would obtain an F-1/”student visa” prior to entering the U.S. Then, upon admission to the country they would be placed into F-1 status. A visa does not guarantee entry into the United States, but other than in certain limited exceptions—such as the Japanese visa waiver program (“green I-94”)—a person can not even attempt entry to this country without first obtaining a visa.

A visa's expiration date indicates only the last day on which a foreign national may present his or her visa to a government officer at a port of entry and request entry into the United States. If a visa expires after a person has been admitted into the United States, it would have no effect on the person’s situation until he or she next wanted to travel internationally as he or she could not be re-admitted into the United States until a new valid visa is obtained. Citizens of China, for example, generally receive only 30 or 90 day visas from the US government. This only means they must utilize the visa and attempt entry into the U.S. within the period of issuance; it does not indicate necessarily how long their authorized stay in the U.S. will be.

“Visa Status”, on the other hand, is the actual category under which a person is admitted into the United States and indicates how the US government categorizes the foreign national during his or her stay. Status is always temporary in nature and it becomes void when a person departs the United States. Often the expiration date of a visa and the expiration date of one’s visa status are different and since it is a person’s status that makes them lawful in the United States, not their visa duration, it is critical that a person always maintain lawful status. The expiration date of one’s visa status is generally indicated on a document known as Form I-94 /”Arrival/Departure Record” distributed to foreign nationals at the time of admission into the United States.

Typically entry from the United States into Mexico or Canada for trips of 30 days or fewer does not result in new I-94 issuance and instead a person maintains the same I-94 issued at the time of first entry.

Agencies

Throughout the history of the United States many different State and Federal agencies have shared oversight of the laws and procedures related to the influx of foreign nationals. Effective March 1, 2003, the majority of immigration and nationality law authority was transferred to the Department of Homeland Security (“DHS”). The Immigration and Naturalization Service (“INS”) has been closed and no longer exists. Instead, within the DHS, different organizations will assume the responsibilities previously held by the legacy INS and by other Federal Agencies. The three primary organizations related to immigration and customs laws within the DHS are the United States Citizenship & Immigration Service, the United States Customs & Border Protection and the United States Immigration Customs Enforcement Agency.

All adjudication activities previously handled by the legacy INS Regional Service Centers and District Offices are now under the authority of the United States Citizenship & Immigration Service ("USCIS"). This includes the adjudication of family and employment-based petitions, issuance of employment authorization documents, asylum and refugee processing, naturalization processing and implementation of certain special status programs. For many employment based visa classifications, such as the H-1, L-1 and O classifications, approval of a petition by the US CIS is a pre-requisite to holding said status in the United
States.

The United States Customs & Border Protection (“USCBP”) focuses on the movement of goods and people across U.S. borders. The CBP combines a variety of government operations including agricultural quarantine inspections, immigration and customs inspection and all activities previously performed by the Legacy INS’s Border Patrol Units.
The United States Immigration and Customs Enforcement (“USICE”) assumed responsibility for the investigative and interior enforcement functions of the legacy INS, U.S. Customs Service, and the Federal Protective Services. This organization also includes Customs operations regarding air and maritime assets.
Although the Department of State (“DOS”) still has authority for visa issuance at the U.S. Embassies and Consulates located around the world, the DHS will take an active role in the creation of new regulations and procedures related to such visa issuance.

A Memorandum of Understanding (“MOU”) has been released by the DHS to provide guidance on how new rules will be implemented. New procedures require applicants to allow for delays prior to visa issuance because of newly added security reviews and collection of digitized personal biographical information as directed by the DHS.

These changes in authority, coupled with numerous new regulations regarding additional security investigations for all visa applicants, have resulted in extreme backlogs at all levels of the immigration law process. Nonimmigrant applications and petitions that previously took days or weeks now take months and most immigrant (“green card”) applications have fallen years behind.