Visa vs I-94
A visa simply lets the visitor come to the United States to apply to enter, it doesn’t determine the length of a visitor’s stay. The period of stay is determined at the time of admission. The visitor will usually find that information on his or her Form I-94.
Unlawful presence
Visitors who enter the united states without presenting themselves to an immigration official, who overstay their I-94, or who violate the terms of their visa are said to be in “unlawful presence.” How long the visitors remain in unlawful presence before leaving the U.S. will determine the outcome of their future attempts to visit.
Overstaying the I-94
- If a visitor overstays by more than 180 days but less than 1 year, and then leaves the U.S., it will mean a 3-year bar from re-entry.
- If a visitor overstays by more than a year and then leaves the U.S., it will mean a 10-year bar from re-entry.
- If a visitor has overstayed by one year or more in the aggregate and attempts to re-enter without proper admission, it will mean a lifetime bar.
Extending the I-94 or changing to another status
Most visa holders can file Form I-539, Application to Extend/Change Nonimmigrant Status, and should ideally do so 45 days before the I-94 expires. It costs $370 to file and they will have to submit their biometrics for an additional $85.
There needs to be a compelling reason why the visa holder needs to extend the I-94. Alternatively, the visa holder can apply to change to a different nonimmigrant status. For example, into student status.
The visa holder has an expired status the day the I-94 expires and DHS can deport him or her even if there is a pending I-539 application. But if the I-539 was filed before the I-94 expired, the visitor is not in “unlawful presence” for the purposes of the immigration bar until the USCIS makes a decision.
A visitor can NOT file Form I-539 to request an extension of stay in, or change of status to, any of the following classifications:
- E-1 principal treaty traders and E-1 principal employees of a treaty trader
- E-2 principal treaty investors and E-2 principal employees of a treaty investor
- E-2 CNMI principal investors
- E-3 principal specialty occupation workers from Australia
- H-1B, H-1B1, H-2A, H-2B, and H-3 nonimmigrants
- L-1 nonimmigrants
- O-1 and O-2 nonimmigrants
- P-1, P-2, P-3, P-1S, P-2S, or P-3S nonimmigrants
- Q-1 nonimmigrants
- R-1 nonimmigrants
- TN-1 and TN-2 nonimmigrants
Overstay forgiveness
If a visitor overstays the I-94 without filing for an extension, it becomes a serious obstacle to future efforts to adjust status. In that case, the out-of-status visitor can file Form I-601, Application for Waiver of Grounds of Inadmissibility for $930. Some of the out-of-status persons that qualify are:
- Being a minor (under age 18).
- Having an asylum application pending with USCIS.
- Being the beneficiary of the Family Unity Program.
- Having an application pending for an adjustment of green card, change of status, or extension of status.