International Travel Issues on Temporary Visas

This may seem like a simple question but it is often misunderstood. A visa is a document placed or stamped in an individual’s passport. It is an entry document. The visa stamp alone is not authorization to remain in the United States. The visa stamp must be valid in the specific category under which the person wishes to enter the U.S. A visa is obtained from an U.S. Embassy or U.S. Consulate abroad – may not be obtained in the United States.

An I-797 Approval Notice for an H-1B or other temporary nonimmigrant category issued by the USCIS is not a visa. As noted above, visas are only issued by a U.S. Embassy or U.S. Consulate abroad. In some cases, the I-797 Approval Notice will need to be presented at a visa application interview at a U.S. Embassy or U.S. Consulate abroad in order to secure a visa stamp.

The answer is likely no. For most nonimmigrant categories, Canadian citizens are not required to secure a visa in their passport before seeking entry to the United States. For example, a Canadian citizen seeking entry to the U.S. to work in H-1B status would provide the CBP officer at the port of entry with his/her valid passport and I-797 Approval Notice. Other visa types, such as the TN, an application can be made directly at the port of entry and the CBP officer will determine whether the case is approved or denied. It is best to seek guidance from legal counsel on travel issues and document requirements.

The I-94 record is the document that controls the status of nonimmigrant foreign nationals while they are in the U.S. The I-94 card lists the authorized class of admission (e.g., H-1B) and period of stay. As of April 30, 2013, nonimmigrants entering the U.S. through an air or sea port of entry will no longer be issued a paper I-94 card. Their admission information is stored electronically and an admissions stamp is placed in the passport. Travelers wanting a hard copy of the I-94 card will be directed to www.cbp.gov/I94 to print a copy of the I-94 card. Paper I-94 cards will continue to be issued to travelers entering through a land port of entry and will continue to be attached to the bottom of USCIS approval notices for changes or extensions of status. The I-94 card is the most critical immigration document. If the visa stamp in the passport expires while the individual is present in the U.S., there is no issue. If the I-94 card expires while the individual is present in the U.S., there are serious concerns.

It is not uncommon for individuals to plan trips abroad but not take into consideration that they cannot return until they get a new visa in their passport. They may need a new visa because the old one expired or because the one they have is not in the correct visa category they will need when they reenter.

Further, whenever anyone travels internationally, they must take into consideration the immigration rules and laws of the country they will visit. This means not only must they look into the visa requirements for the country they are going to, but they must anticipate the visa requirements for returning to the U.S.

Whenever you plan a trip abroad, ask the following questions:

1. Do I have a current visa in my passport which I can use to reenter the U.S.?
2. If not, have I allowed enough time during my trip to go to the U.S. Embassy or U.S. Consulate and get a new visa?
3. What are the documents I will need to take with me to get the visa and do I have them?
4. Will I need to arrange an extension of my current status prior to my trip?

Once you secure a visa from the U.S. Embassy or U.S. Consulate abroad in the appropriate category, you may plan your travel to the U.S. Upon arrival at the port of entry, you will present your valid passport with valid visa stamp and your I-797 Approval Notice (if applicable) to a CBP officer who will conduct an inspection to determine if you will be admitted to the U.S If you are carrying an I-797 Approval Notice, be sure to request that the CBP officer provide a period of stay in the U.S. consistent with the I-797 Approval Notice expiration date. Upon admission, a form I-94 will be generated. If you receive a paper form I-94 at a land port of entry, be sure to review the document for accuracy (correct immigration status and expiration date). Individuals entering the U.S. through an air or sea port are no longer issued a paper form I-94. Their admission information is stored electronically and an admissions stamp is placed in the passport. Travelers are to secure a hard copy of the form I-94 from www.cbp.gov/I94. It is important that electronic form I-94 be reviewed for accuracy as well, as any discrepancy must be addressed as soon as possible.

Please keep in mind that this FAQ does not cover many exceptions such as brief trips to Canada and Mexico, visa waivers, the penalties for fraud or exceptions for those in adjustment of status proceedings and the use of advance paroles. Again, it is always best to seek individual legal advice about your travel plans as far in advance as possible.