When a foreign national has differing expiration dates on their U.S. immigration documents, it is important to know which expiration date controls in order to determine when an extension of status is needed.
I-797 Notice of Action
U.S. Citizenship and Immigration Services (“USCIS”) issues an I-797 Notice of Action when a nonimmigrant petition or application is approved. The I-797 reflects the visa classification (H-1B, L-1A, etc.) the foreign national has been approved for and the validity period for the nonimmigrant status authorized by USCIS.
In order to enter the U.S. in a nonimmigrant status a foreign national must obtain a visa stamp at a U.S. Consulate abroad and be prepared to present it to the inspecting U.S. Customs and Border Protection officer at the U.S. port of entry (with the exception of Canadians who are not required to obtain visa stamps for most nonimmigrant categories). After reviewing a foreign national’s documentation, including the I-797 mentioned above, the U.S. Consulate will insert a visa stamp in the foreign national’s passport.
The visa stamp expiration date is typically the same date as the expiration date on the I-797, but there are exceptions. The visa stamp validity period will be different from the I-797 in the following circumstances:
- Foreign national’s passport expires prior to the I-797 expiration date;
- Foreign national is being issued an L-1 visa stamp (see PED section below).
U.S. and foreign national’s country have a reciprocity agreement that provides for a different validity period (for example, the U.S. and China will only issue visa stamps to each other’s nationals in one-year increments in some non-immigrant visa categories);
- Prior to traveling internationally, foreign nationals should check the expiration date on their visa stamp as they will not be able to re-enter the U.S. if they do not have a valid visa stamp (with the exception of certain travelers to Canada and Mexico).
PED expiration on visa stamp
The Petition Expiration Date (“PED”) listed on a visa stamp generally reflects the I-797 expiration date and the final date on which a foreign national can enter the U.S. using that visa without a new I-797 approved. While the PED is typically the same as the visa stamp’s expiration date, this is not always the case.
L-1A and L-1B nonimmigrants are often issued visa stamps valid for five years. However, the PED listed on the visa stamp will correspond with the (shorter) L-1 expiration date on the I-797. To re-enter the U.S. after the PED, the L-1 foreign national will need to present their visa stamp and a new I-797 reflecting an extension of L-1 status beyond the PED.
PED example: A foreign national was issued an I-797 authorizing L-1A status from October 1, 2016, to September 30, 2019, by USCIS. The foreign national obtained a visa stamp from the U.S. Consulate in his home country, which is valid from October 1, 2016, to September 30, 2021 (the full five years allowed) and reflects a PED of September 30, 2019 (the period authorized on the I-797). The foreign national enters the U.S. and is issued an I-94 by CBP that is valid until September 30, 2019.
Prior to September 30, 2019, the foreign national is issued a new I-797 reflecting the extension of his L-1A status until September 30, 2021. Between October 1, 2019, and September 30, 2021, the foreign national can re-enter the U.S. by presenting the visa stamp with the expiration date of September 30, 2021 (and PED of September 30, 2019) and the new I-797 authorizing his L-1A status until September 30, 2021. The foreign national will be issued an I-94 to September 30, 2021.
The I-94 expiration date is the “controlling” expiration date for immigration purposes and determines how long a foreign national can legally remain in the U.S.
Upon entry into the U.S., U.S. Customs and Border Protection (“CBP”) issues foreign nationals entering in nonimmigrant status an I-94 record. CBP began issuing electronic I-94 records several years ago (replacing the small white cards that were previously stapled into a passport). The electronic I-94 record should be downloaded from CBP’s website after each entry into the U.S.
If an I-94 is issued incorrectly by CBP, the foreign national must take the necessary steps to correct his or her I-94 immediately. Incorrect I-94 records can have a very serious negative impact on status in the U.S. The most common errors tend to be I-94s issued with abbreviated authorized periods of stay and I-94s issued in B-1 business visitor status rather than the approved employment authorized status (H-1B, L-1, etc.).
If a foreign national is unaware of an I-94 error, he or she may inadvertently overstay his or her period of authorized status and lose employment authorization. Overstays and unauthorized employment can have serious negative consequences down the road.
I-94 error example: A foreign national was issued an I-797 authorizing H-1B status from October 1, 2016, to September 30, 2019 by USCIS. The foreign national obtained a visa stamp from the U.S. Consulate in his home country, which is valid from October 1, 2016, to September 30, 2019, and reflects a PED of September 30, 2019. The foreign national enters the U.S. and is issued an I-94 by CBP (in error) that is valid only until June 30, 2019. If the I-94 is not corrected, the foreign national is only authorized to remain and work in the U.S. until June 30, 2019 (not until September 30, 2019).