Immigration Law Insights

Foreign nationals often coordinate travel abroad to coincide with the holidays. December can be one of the busiest times of year for visa processing at U.S. Consulates and Embassies abroad. Here are a few helpful considerations to make foreign national holiday travel a little less stressful. 

Do I have a valid passport?

While seemingly obvious, an immediately expiring passport can cause a multitude of issues for foreign national travelers. Initially, U.S. Consulates and Embassies may require a passport to have a specific amount of validity in order to issue a visa. Additionally, Customs and Border Protection (CBP) may issue a shortened I-94 upon entry to coincide with a passport expiration, despite the foreign national having status approval for a longer period. Those planning to travel should check the validity of their passport before exiting the United States and, if necessary, obtain a new passport before departure. 

Do I have a valid visa?

The validity period of nonimmigrant visas varies depending on the visa type and nationality of the foreign national. Validity can vary from one to ten years. A valid visa does not guarantee CBP will admit a foreign national and does not determine how long the individual can remain in the U.S. A valid visa only provides the foreign national the opportunity to “knock on the door” and attempt entry. However, as long as a visa is valid on the date of entry, the foreign national will typically receive a term of stay consistent with the validity of their employment-based approval expiration. Foreign nationals should also be aware that a visa alone may not be sufficient for entry. Those seeking to enter the United States on an employment-based visa should always travel with a copy of their I-797 Approval Notice (if applicable), a letter from their U.S. employer confirming continued employment, and some recent pay stubs.

What if I need to interview for/obtain a new visa?

The holidays can be a hectic time to schedule visa interviews at U.S. Consulates around the world. A best practice is to plan travel at least three months in advance to ensure sufficient time to schedule an interview. Foreign nationals can check approximate interview wait times at the Department of State’s website (available here).

Every nonimmigrant foreign national requiring a visa to enter the U.S. must complete a DS-160 Application on the Department of State’s website, pay applicable visa fees, and request a visa appointment date. Depending on the country and the type of visa, wait times can be lengthy. Thankfully, some Consulates waive interviews for certain visa applicants. Depending on visa type and other criteria, the Consulate may direct a foreign national to provide their application documents by mail or at a drop-off location instead of appearing in person at the Consulate. Foreign nationals should always confirm visa interview dates, Consular instructions and gather the required supporting documents before booking airline tickets. Supporting documents regularly vary by Consulate. 

Travelers should also take into account the potential for administrative processing after a visa interview. Administrative processing is a period of additional review to determine visa eligibility. During administrative processing, the Consulate may conduct additional background checks or request additional supporting documentation. Administrative processing can delay travel for weeks after the visa interview.

After entering the U.S.

Nonimmigrants should always check their visa entry stamp and I-94 expiration upon entering the U.S. Upon entry, a new I-94 record should be available on the CBP’s website, which is accessible here.

The I-94 expiration is the controlling date by which a foreign national must leave the U.S. or file to extend a status with USCS. Expiring passports or dependent children turning 21 (also known as “aging out”) will cause CBP to issue shortened I-94 expirations. Errors do happen, but it is easier to correct an error while still at the point of entry.

Burr & Forman’s immigration team advises clients on all aspects of the nonimmigrant work visa process. If your business has questions regarding employment-based visas, contact Melissa Azallion Kenny (makenny@burr.com), Anna Scully (ascully@burr.com), or Jon Eggert (jeggert@burr.com) on the Burr & Forman immigration team.