Overstaying your authorized visit

Section 222 of the Immigration and Nationality Act provides that anyone who is "unlawfully present" in the United States for 180 days or more will be barred from the United States for three years. If one is "unlawfully present" for more than a year, he or she will be barred from the United States for ten years. Children under the age of 18 are not subject to the three-year or ten-year bar.

"Unlawfully present" is defined as "being present in the United States after the expiration of the period of stay authorized by the Attorney General." The effective date of the law was April 1, 1997, and the clock started on that date for those who were out of status. Anyone who was unlawfully present on April 1, 1997, and who continued to be unlawfully present after April 1, 1998, can be barred from the United States for a period of ten years.

Although this law is directed toward illegal immigrants, those who have attempted to comply with the immigration laws may also be affected by it. For example, one could inadvertently overlook the expiration date of the nonimmigrant status (on form I-94). The immigration inspector at the airport could put the wrong date on the I-94. A spouse or child may have a different expiration date and inadvertently fail to extend it. A person could erroneously assume that the period of lawful stay is governed by the date on the passport visa or by the H or L approval notice (rather than the I-94).
It is therefore very important that those in nonimmigrant status review the expiration date on their form I-94 (or any extension of that date), as well as the expiration dates for their family members. They need to make sure that they are in valid nonimmigrant status, and will not be barred from reentering the United States in the future under Section 222 of the Immigration and Nationality Act.

Employers usually track the expiration dates of work-authorized status as part of their I-9 compliance systems. However, that system will not track the expiration dates of the status of spouses and children, so it is very important for each nonimmigrant employee to calendar and track those expiration dates as well.

Also, the employer’s I-9 system cannot cover a change in the expiration date of authorized stay that could arise when the H-1B or L-1 visa holder makes a trip abroad.

A discrepancy between the I-94 and the I-797 can arise when the visa holder reenters the United States by presenting an older H-1B visa (the stamp in the passport that received from the U.S. Embassy, Consulate or Visa Office) from a previous employer and the I-797 (H-1B approval notice) from the current employer. INS policy provides that the INS inspector should issue the I-94 with an expiration date that is the same as the expiration date on the I-797 of the latest employer. However, many INS inspectors ignore that rule, and instead issue the I-94 with the earlier date on the H-1B visa. When arriving in the United States, the visa holder should insist that the I-94 be issued with the later I-797 date, rather than the earlier visa date.

These are just some of the possible scenarios that could cause an H-1B or L-1 visa holder, or their families, become unwittingly "unlawfully present." It is therefore imperative that nonimmigrant employees review their I-94s (white cards) and I-797 approval notices, and those of their spouses and children, to again determine their final day of authorized stay.

* The purpose of this newsletter is to inform potential clients of the type of legal issues our firm handles. It is not intended to establish any attorney/client relationship, and we accept no responsibility for the accuracy of the information provided. We cannot discuss or clarify any of the information contained in our newsletters, except with our existing clients.