Maintaining “Temporary” Status

Once an individual is in the U.S. in valid nonimmigrant status, s/he should ensure that s/he maintains valid nonimmigrant status.

The following issues can arise in connection with maintaining valid immigration status.

Travelling Pitfalls

Presenting the wrong approval notice or visa stamp upon entry. Upon arrival in the U.S. individuals should present the approval notice or visa stamp that relates to their purpose in entering the U.S.

CBP makes an error on the I-94 record upon entry. Individuals should always check the I-94 record as soon as it is issued to ensure the visa status and expiration dates are correct.

Overstay vs. Duration of Status

In most cases, the I-94 record dictates how long individuals and their dependent family members may remain in the U.S. Generally, if an individual overstays this date, a violation of their status occurs.

If a petition/application to extend an individual’s status is filed prior to the I-94 record expiration date, individuals maintain valid nonimmigrant status while the extension request remains pending.

Individuals presenting F-1 or J-1 visa status where their I-94 record states D/S “Duration of Status” may remain in the U.S. as long as they satisfy the terms of the visa classification.

If an individual overstays the expiration of his/her I-94 record, his/her visa stamp becomes invalid. The individual will be required to depart the U.S., apply for and obtain a new visa at the U.S. Consulate in his/her home country in order to reenter the U.S.

Working without Permission

Employment-based visas are typically considered job and location-specific. This means that individuals working pursuant to such visas may not use their visas to work for other employers.

U.S. immigration law defines work as “performing services”. Even performing services without pay, may be considered employment for which an employment-based visa may be required.

Individuals maintaining H-1B status may be “portable”. Pursuant to U.S. immigration law, such individuals may change employers as long as the new position meets H-1B classification requirements and the new employer files an H-1B petition before the intended start date of employment. H-1B workers should avoid leaving current H-1B employment and beginning new employment until the new employer files a new petition with USCIS.

Job Displacement or Layoff

In most cases, valid nonimmigrant status ends the day one stops performing services for the sponsoring employer. There is no grace period. When employment ends, one must leave the U.S. or file an application to change status (i.e., to a visitor’s visa) if eligible.