Restrictions on visa issuance - Immigration America

The Department of State, in response to the 9-11 attacks, promulgated an interim rule which became effective on April 1, 2002. A close examination of the rule is very important in order to protect individuals who apply for a visa to reenter the United States.

In brief, keeping with its desire to ensure that aliens remain in valid status at all times within the U.S., the Department of State changed its regulations on automatic visa revalidation. In the past, the Department of State approved visas (or at least reentry) to the United States for individuals in valid status who had departed the United States to contiguous territories (Mexico, Canada, and certain Caribbean islands). The Department of State now takes the position that an alien with an expired visa will not be allowed to re-enter the United States from a contiguous territory, but must apply for a new visa and wait in that third country until the visa is issued in order to re-enter the USA. If for some reason the visa is not issued, then the alien would have to return to his or her home country and reapply for a visa there.

To understand this article and the points discussed below, it is necessary to understand the distinction between a .visa. and an .arrival-departure document., or .Form I-94.. The visa is a document which includes a photograph of the passport holder. The visa is issued by the U.S. Department of State through U.S. consulates overseas, and is attached to a page in the foreign national’s passport. The visa is issued for a specific non-immigrant visa classification and is valid only for a specified period of time. It permits entry to the United States for a specified number of occasions (single entry, a defined number of entries, or multiple entries) over a specific period of time.

By contrast, the Form I-94, arrival-departure document, is issued by the Immigration and Naturalization Service. The I-94 is a white card and is stamped at the port of entry by an INS or US customs officer. The I-94 indicates the type of visa classification held by the foreign national and the duration that the INS authorizes the foreign national to remain in the United States. The duration of stay on an I-94 may be substantially different from the dates of validity of the visa. Even if the visa has expired, the I-94 may still be valid. For example, a student visa may be good for only a single entry over a two-month window. If the alien enters during that two-month window, he or she may be issued an I-94 which is valid for .D/S. or .Duration of Status., which will permit the foreign national to remain in the United States as an F-1 student as long as he or she remains in status, i.e. attending a course of study as authorized by the appropriate U.S. educational institution. Therefore, it is important to remember this distinction between a .visa. and an .I-94".

Before April 1st, 2002, any non-immigrant alien in the United States who held a valid and unexpired I-94 could travel to a contiguous territory for up to 30 days, and return to the United States. Likewise, individuals who were .third country. nationals could apply for a visa in either Mexico or Canada, and even if the visa were refused, could return to the United States under their valid unexpired I-94, if they had one.

The interim rule effective April 1, 2002 changes this policy in two significant ways: Individuals who have a valid unexpired I-94 but desire a new visa stamp in their passport (for example, a change of status from F-1 to H-1 which would require a new H-1 visa stamp in the passport) must now await for the approval of a new visa at a U.S. Consulate in Canada or Mexico (or, by analogy, other third country) before re-entering the United States. Simply having a valid unexpired I-94 will not be sufficient to allow individuals to re-enter the United States if their visa application at the U.S. Consulate abroad has been rejected. In other words, if you apply for a visa in a contiguous country and are rejected you may not then re-enter the United States from such contiguous territory. This is significantly different from the prior policy.

Likewise, individuals who are nationals of countries identified as "state sponsors of terrorism" (currently Iraq, Iran, Syria, Libya, Sudan, North Korea, and Cuba) cannot re-enter the United States from a contiguous territory even if they have a valid unexpired I-94. These individuals are therefore in essence restricted to travel within the United States only. If these individuals should leave the United States, and their visa has expired, they will need to have a visa issued at a U.S. Consulate overseas prior re-entering the USA.

The only issue which remains unchanged relates to the reentry of individuals who are not nationals of "state sponsors of terrorism" countries as listed above. If these individuals leave the United States for a contiguous territory, and they have a valid unexpired I-94, they need no additional documentation to reenter the United States.

As stated above, however, if their visa has expired or they want a different visa status, and they apply for a visa and the new visa application is denied, they cannot re-enter the USA.

This is an area of the law that is likely to see significant change. For the latest status updates on this issue as well as an examination of Forms DS-156 and DS-157 which the Department of State requires for visa applications, please are click on the links button on this website which will give you a link to the Department of State website. The DOS website should include new regulations, policy updates and the applicable forms.