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Visa Status: Difference Between Visa and Status

You must understand the difference between the two Immigration terms — Visa and Status – in order to maintain legal status while in the U.S. People are often confused between Visa and Status because of the erroneous usage of these terms in conjunction with each other (often incorrectly used together as ‘visa status’). However, there is a clear distinction between the two terms under the immigration laws.

A Visa is a stamp placed in the passport by a U.S. Consulate outside the U.S. All visas serve merely as entry documents. In simple terms it allows a foreign national to seek entry into the U.S.

Status on the other hand, is the group of privileges given to a foreign national while receiving immigration benefits at the port of entry. When a foreign national is legally admitted to the U.S., he acquires a Status.

About Visa and Status

Visas can be designated as either nonimmigrant or immigrant. A person who will live in the U.S. permanently and get a “Green Card” is issued an immigrant visa. Everyone else gets a nonimmigrant visa. While Visas and Green Cards are things you can see, a status is something that cannot be seen. A nonimmigrant visa affixed to your passport (visa stamp issued by the Consulate or Embassy) signifies that a consular officer believes that you are eligible for the immigration status you seek and to apply for admission into the U.S. in that particular nonimmigrant category. A Visa does not guarantee you admission into the U.S. A U.S. Immigration Inspector at the port of entry can deny you entry if he or she believes that you are not eligible to be admitted in the category for which the visa is issued.

Statuses can also be designated as either immigrant or nonimmigrant. Nonimmigrant statuses have exactly the same names and privileges as the corresponding nonimmigrant visa. However, an immigrant visa holder is granted the status of permanent resident upon entering the U.S. with his or her immigrant visa. While you must be given a Status with each visa, the reverse is not true. The Form I-94 — Arrival/Departure Document — received at the time of entry as a nonimmigrant will indicate the designated Status as well as the expiration date of that Status.

Period of Validity

A Visa may be valid for as few as 30 days or up to ten years. The period of validity establishes the time during which a visa holder may appear at a U.S. port of entry and ask for admission into the U.S. A Visa may be limited to a single entry or may be valid for multiple entries during its validity period. The validity period of a Visa is not the same as the authorized period of stay you are granted when admitted to the U.S. The authorized period of stay, which is indicated on the Form I-94 stapled in the passport, may be less than the period of validity of the Visa, or may be much longer than the period during which the Visa itself is valid.

Status only remains valid if you remain in the U.S. for the duration of the authorized stay as stated in the Form I-94. Once you leave the U.S, your Status is cancelled even though there is time left before the expiration date of the Status. It is important to understand that it is always the Form I-94, and not the Visa in the passport that determines your Status and its validity as to time and purpose. You are not “out of Status” if you entered the U.S. with a valid Visa and the Visa has expired, provided you are still within the authorized period of stay indicated on your Form I-94.

Change of Status

It is generally possible to change from one nonimmigrant status to another while inside the U.S. by filing a Change of Status application with the USCIS. A Change of Status inside the U.S., however, does not change the Visa. Hence, if you have a nonimmigrant status, but not a corresponding Visa, you will lose the status as soon as you leave the U.S. You may regain your privileges only by obtaining a proper nonimmigrant visa before returning to the U.S.

Violation of Status

A Status Violator is a person whose period of authorized stay has not expired, but who has violated the scope of authorized activity by working without authorization, by failing to comply with the terms of the status etc. For example, an H-1B nonimmigrant visa holder is out of status after ceasing to work for the petitioning employer or after starting to work for an employer who has not filed a petition for the foreign national. An F-1 student is out of status when no longer taking a full course of study; and a B-2 tourist is out of status when he assumes employment. However, status violators are not considered to be unlawfully present unless and until the USCIS finds that they are violating their status.

Conclusion

Clearly, failure on behalf of persons to understand the distinction between Visa and Status may result in unprecedented immigration hassles. If you have questions regarding the difference between Visa and Status consult a VisaPro attorney.

We also cover the latest happenings on all visas in Immigration Monitor, our monthly newsletter. Click here to subscribe to Immigration Monitor.

A Rendezvous with India: The journey continues

This month we finalize our attorneys’ travelogue describing their journey through India that we started in last month’s newsletter. As you probably already know, during these events, the VisaPro legal team traveled to five different cities in India to present substantive and comprehensive information on business immigration issues to a wide-ranging audience.

After a great success and a brief break in Bangalore, we headed out for the next leg of our journey the great city of Mumbai. Since Mumbai is a world-renowned city and a place that I grew up reading about in various books I was very excited for this next stop - needless to say that the visit, albeit short, did not disappoint. We held our event at the majestic ITC Grand Maratha Sheraton, a place that is made for kings. The locality was fantastic, right in the heart of the city and quite luxurious. The crowd that came was fabulous and the questions that we received were as challenging as ever. Unlike Bangalore, where a large majority of the attendees hailed from the tech industry, the Mumbai folks represented a wider spectrum of industry and offered a different perspective on the immigration issues faced by multinational companies. At the end of the eventful day, we rushed into great taxis and set off on our thrilling ride to the train station. The ride took about 40 minutes, but it reminded me more of an eternal roller coaster, out taxi dodged from one side to the next, squeezing between buses and trucks, while competing for the coveted prize of beating the other part of our team riding in another taxi. During that ride, there were numerous moments where my life flashed before my eyes and I was sure that I would not reach Ahmedabad.

The trip on the train from Mumbai to Ahmedabad was uneventful, the journey was comfortable, although I quickly learned that Indian train sleeping berths were not made for persons of my height. When we arrived in Ahmedabad, it was still early but the train station was bustling with activity. My favorite sight was two boys selling orange juice to the many people waiting for their trains - entrepreneurship at an early age. The seminar in Ahmedabad went great, the dynamics of the entire day were a bit different from the other places because there were fewer attendees, which allowed for more interaction during the presentation. Overall, I was very impressed by the knowledgeable audience and was happy to spend much time discussing various problems and issues that the attendee companies have faced while dealing with immigration and trying to expand operations to the U.S. At the end of the day, I was fortunate enough to get the opportunity to visit a Sikh temple, where both Thomas and I were warmly welcomed by the Sikhs and made feel at home. The experience was great and I very much liked the music that was being played at the temple. Everyone in Ahmedabad was quite hospitable and the whole city had a great feel. On our way to the airport we stopped by the place where Gandhi once lived and it was great to see the reverence that many people still have for the man.

Our final stop was New Delhi and it was a great finish to the journey. The venue was amazing -- The Claridges Hotel and it offered many amenities. The hotel was absolutely beautiful and the staff was very courteous. This was our last seminar and so there was a bit more relaxed feeling to the presentation, and the audience reacted well. We had a very informative session and even though the crowd was fairly large numbering around 100 people, the session was quite interactive with questions and suggestions being exchanged during the event in an active fashion. Aside from the successful event, I must say that the food during the High Tea was fantastic. After the session we spent quality time with our attendees to make sure all questions were answered and then we slowly got ready for our trip back to the hotel and home. It was a great finale to a successful tour. During the trip we all learned a lot, about the kinds of questions that companies have and about the problems that they face. It was a great experience that has shown us what works well and what could be improved and how to structure an even better set of events next year. Overall we were quite pleased. Our goal was accomplished -- we traveled to five cities across India and we showed people the tricks of the immigration trade. We shared our experiences, listed to those of our attendees and provided answers to many immigration law queries. Often at the end of the day we came to a conclusion along with our attendees that certain problems are unavoidable and certain things cannot be explained, but we tried our best and at the end of the trip both Thomas and I felt that we accomplished our goal of spreading more knowledge and information about the way the U.S. immigration system works. We can't wait to do it all over again next year.

Beyond Arrival…

Arrived in the U.S.! There are many things you need to do right after getting off the plane than just grab your luggage, to make sure that your stay is smooth and your experience exciting and memorable. We, at VisaPro, get queries everyday on “what, when and how” of Form I-94, medical insurance, SSN, work permit, driver's license, and travel document fronts. We thought we should give our readers an insight of what happens once you have landed safely in the U.S. The following paragraphs would give you an insight into some things which you ought to be aware of on your arrival in the U.S. and the lack of which could generally cause a nightmare for many.

Form I-94:

You are a nonimmigrant visa holder, when you enter the United States temporarily for a specific purpose such as business, study or pleasure. Upon your entry a U.S. immigration inspector should examine your passport and visa and then give you a Form I-94 (Arrival/Departure Record). This record should tell you (in the lower right-hand corner) when you must leave the United States. You can prove you did not violate U.S. laws by turning in your Form I-94 to the proper authorities when you leave the country. Also, if you want to extend your stay in the United States, then you must ask for permission from the US Citizenship and Immigration Services (USCIS) before your authorized stay expires. If you break immigration laws, you may also become subject to removal (deportation). It must be noted that if your I-94 is stolen, lost or mutilated you must get it replaced.

Medical Insurance:

The United States does not offer socialized medical care, hence if you have no health insurance coverage, you have to pay for health care as and when required. In the U.S., healthcare is generally very expensive; it may run into many thousands of dollars for serious illnesses. Health insurance, though expensive in the US is a must to stay in good health and to ensure that one receives good health care. Once you have the health insurance, you can protect yourself and your family. You may be required to pay a monthly or quarterly fee as insurance for the time once you have enrolled yourself in a health care plan.

You may select from the two main ways in order to obtain health coverage. You may choose between paying into a group health insurance plan or buying individual health insurance. Group Insurance is when you get insurance through your job or are you are covered because a family member has Insurance at work. If your employer does not offer group health insurance, you can buy an individual health insurance policy. It has been noted that Individual health insurance plans may not offer benefits as broad as those in group health insurance plans. There are various types of health insurance you may choose from some of them are managed Care ,fee-for-Service plans, Health Maintenance Organizations (HMOs), Point-of-Service plans (POS), Preferred Provider Organizations (PPOs)

SSN Number:

Social Security Number (SSN) is a unique number issued, by the Social Security Administration (SSA), to US citizens, Permanent Residents, and to certain foreign nationals who meet the eligibility criteria. In the U.S., SSN is required to work and all Citizens, Permanent Residents and most residents on specific temporary visas are required to obtain a SSN before commencing work. If a dependent is accompanying a temporary work visa holder and wants to work, he/she will have to apply for a SSN number before commencing his/her job.

The Social Security Administration (SSA) has a new process for non-citizens to apply for Social Security number (SSN) cards as part of the immigration process. Now, if you are either 18 years of age and older, you may apply with the U.S. Department of State for SSN cards at the same time.

A Social Security number is important because you need it to get a job, collect Social Security benefits and receive some other government services. Many other businesses, such as banks and credit companies, also ask for your SSN number. In general, only non-citizens who have permission to work from the Department of Homeland Security (DHS) can apply for a Social Security number. To prove your U.S. immigration status, you must present the current U.S. immigration document, I-94, Arrival/Departure Record, issued to you when you arrived in the United States.

Lawfully admitted non-citizens can get many benefits and services without having a Social Security number. You do not need a number to purchase savings bonds, conduct business with a bank, register for school or apply for educational tests, obtain private health insurance, apply for school lunch programs or apply for subsidized housing. If you are a US Citizen you can help your spouse by applying for a SSN card before your spouse arrives in the United States. You may want to read our article obtaining a Social Security Number to know more on SSN.

Driver's License:

In the United States, the individual states issue the driver licenses for their residents. Every state in the U.S. has different rules when it comes to applying for a driver's license. Here, we look at the laws in the States of California and Washington DC with respect to driver's license.

For the State of California if you are a visitor and over 18 and have a valid driver license from your home state or country, you may drive in this state without getting a California driver license as long as your home state license remains valid. If you take up a job or become a resident in the state, you must get a California driver license within 10 days. A medical form completed by a U.S. licensed doctor of medicine must be given with your original application for a driver license or instruction permit.

Similarly, for Washington DC , you may obtain a driver's license once you take and pass the eye test, the knowledge test, and the skills road test. You may not obtain a DC driver's license while maintaining a valid license from another jurisdiction. A driver's license is valid for up to five years for US citizens and may vary for non-US citizens (according to the U.S. immigration expiration date). Further, if you want to know the rules and laws in your stares, we suggest you visit the specific websites for driver's license. You may visit the site http://www.usa.gov/Topics/Motor_Vehicles.shtml to learn more on your states and the laws for attaining a driver's license in the U.S.

Employment Authorization:

If you are not a citizen or a lawful permanent resident, you may need to apply for an Employment Authorization Document (EAD) to prove you may work in the U.S.

Employment Authorization Documents (EAD) has been divided into the following categories:

EAD: This document proves you are allowed to work in the U.S.
Renewal EAD: You should apply for a renewal EAD six months before your original EAD expires.
Replacement EAD: This document replaces a lost, stolen, or mutilated EAD. A replacement EAD also replaces an EAD that was issued with incorrect information, such as a misspelled name.
Interim EAD: If USCIS does not approve or deny your EAD application within 90 days (within 30 days for an asylum applicant; note: asylum applicants are eligible to file for EADs only after waiting 150 days from the date they filed their properly completed original asylum applications), you may request an interim EAD document.

You will also need two identical color photographs as per the specifications, copy of your current passport, copy of the USCIS Form I-94 issued to you when you entered the U.S., copies of documents which indicate your current status.

Some dependants of personnel with work visas in the US are not generally allowed to work e.g. a spouse on an H-4 visa, unless they qualify for a work visa on their own. Also dependants of student visas holders, for example F-2, M-2, are also not allowed to work. However, spouses of J-1, L-1, E-1 and E-2 visa holders and those of U.S. citizens can apply for EAD and can start working when their EAD is approved.

Travel Document:

Before leaving the U.S. on an emergency, you should determine if you require a travel document to re-enter the country. There are several types of travel documents that you (including legal permanent residents) must obtain if they wish to re-enter the country after travel outside of the U.S. The following sections examine re-entry permits, advance parole, and refugee travel documents. To apply for any of these benefits, you may use Form I-131 . Being a dependent on an F-2, H-4, J-2, L-2, E-1 and E-2 you do not need to have a travel document until the time you maintain your valid status. While you are present in the United States in a K-3 or K-4 nonimmigrant visa status can travel outside of the United States and return using their K-3/K-4 visa. If the spouses of a US citizen on a K-3 have filed for Adjustment of Status in the U.S. prior to departure, USCIS will not presume that the departure constitutes abandonment of an adjustment application.

Re-Entry Permit:Lawful Permanent Residents (green card holders or LPRs) use re-entry permits to re-enter the U.S. after travel of one year or more. For LPRs returning to the U.S., re-entry permits are generally valid for two years from the date of issuance of the re-entry permit. If you are a LPR, then you should apply for this benefit before leaving the U.S.

Conditional residents use re-entry permits to re-enter the U.S. after travel of one year or more. For conditional residents returning to the U.S., re-entry permits are generally valid for two years from the date of issuance of the re-entry permit or until the date the conditional resident must apply for the removal of conditions, whichever comes first. If you are a conditional resident, then you should apply for this benefit before leaving the U.S.

A re-entry permit does not guarantee you an admission into the U.S. If you are entering the US with re-entry permit, you are still subject to the inspection process at the port of entry. It is also important to note that if you travel outside of the U.S. for more than one year will under most circumstances break the continuous residence requirement for your naturalization purposes. Travel for over 6 months may break the continuous residence requirement.
Advance Parole: Most of the people on non- immigrant Visas who have pending applications for immigration benefits or for changes in nonimmigrant status need Advance Parole to re-enter the U.S. after traveling abroad. If you are applying for advance parole on the basis of a pending application for adjustment of status must be approved for advance parole prior to leaving the U.S. in order to avoid the termination of their pending application for adjustment.

While you are in the United States, you should, prior to departure, obtain Advance Parole in order to re-enter the United States after travel abroad. You should have:
- Filed an application for adjustment of status but have not received a decision from the USCIS;
- Hold refugee or asylee status and intend to depart temporarily to apply for a U.S. immigrant visa in Canada; and/or
- An emergent personal or bona fide reason to travel temporarily abroad.
Refugee travel document: A refugee travel document allows ones who are or once were refugees or asylees to return to the U.S. after travel abroad. You should apply for this benefit before leaving the U.S. In some cases, immigration officials may issue travel documents to refugees or asylees who are physically outside of the U.S.

We at VisaPro hope that we have successfully attended to the daily arising queries for many of our clients. Please feel free to contact us to discuss the immigration needs for you and your family. We will help you effectively with needs and queries. Our experienced Immigration Attorneys could help you devise an appropriate strategy right after your arrival in the U.S. to your departure outside for a temporary visit.

Into almost the last leg of my travel Workshop in Chennai

The success and the overwhelming response of the Bangalore workshop was just about setting in, when it was time for us to rush back to our hotel, pack our bags, have some dinner and head to the Railway Station! Yes! We were taking a train to Chennai and believe me; I didn't know what I was heading for that night!

Here began an absolutely unbelievable series of events! We arrived at the Bangalore railway station and I had never seen so many people in some kind of a mad rush before! I saw people running from one end of the station, lugging their bags to the opposite end, trying to get into the railway compartments - it was too crazy to be real! So here we were- 4 people, clueless about our compartment, being led by an absolute stranger - what they call a “porter” in India - the one who carried our bags for us! We enter into a compartment after having walked quite a distance, just about to settle down, when we are announced that we are into the wrong one and our compartment is in the totally opposite direction!! We rush again backwards, passing hundreds of people trying to pave their way through towards their respective seats.

We were settled with our bags tucked carefully under the seats, ready to hit the sack knowing that the next day is going to be no easy! Next morning, all I remember was being woken up by 4 men who were staring at us wanting us to wake up so they can pick our luggage and get paid for the same! After endless bargain, with the porters, we seemed to have reached a fair amount to be paid to the porters and we moved on towards the taxi which ushered us to the hotel! The drive along the beach to the hotel was interesting!

The venue in Chennai, Hotel GRT, seemed impressively arranged with just the right number of chairs for an audience which would be ideal for a workshop. As I waited for the workshop to begin, I observed that the attendees were scattered around in the hall, with minimal interaction amongst themselves or with me. I would have preferred to have a tea session at the beginning of the workshop so that the attendees could warm up and mingle with each other. This would have been the right time for us to network. The workshop had a very mature and focused audience which was re-affirmed during the Q and A session. The flow of the workshop was very well paced and effective in reaching out to the varied audience and their queries. I was impressed with the VisaPro team being abreast with the knowledge of the local consulates and their changes. The interactions with a few of the attendees post workshop was enriching - some of the queries were absolutely alien to me and thus exciting to note the range of immigration concerns in India.

Summing it all, so far it has been a very different and enriching experience; everything from eating on the banana leaf, the spicy Indian cuisine, culture, traffic, three-wheeler auto rides to the impeccable security at the airports and above all every new experience that each seminar and workshop brought in!

Last but not the least, I would love to get back here as this has been one of the most well planned and executed series of immigration events that I have ever been a part of in my 30 year immigration career! I would like to congratulate the
VisaPro India team to have made these events so memorable for me.

I am now on the last leg of my travel since I landed in India. The excitement didn't cease as we were running behind schedule for the flight to Hyderabad where I had my final event termed as “Q&A”! At last we were all in the taxi, with food packed for each one, ready to literally “fly” to the airport! The driver was just waiting to hear one of us say “go fast” and he let lose on his reins - the next thing I knew was that we were at the Chennai airport!

Travelogue: Immigration Workshop in Bangalore

With pepped up energies after the success of the 2 seminars in the north, we were all set to give our best to the first workshop in Bangalore. The flight to Bangalore on 11^th October night was a welcome break post the nerve-breaking three-wheeler ride to Pune airport earlier in the evening. The drive to the hotel in the heart of city, Brigade Road, gave me an initial glimpse of the city that is famous for its IT and BPO infrastructure.

Bangalore presented yet another facet of the Indian culture to me, a little varied from Delhi and Pune. On my first dinner in southern India, I was pleasantly surprised to see food being served on a large green leaf, the banana leaf. I was informed as this being a tradition in most parts of southern India. Another interesting observation was how people around me ate food with their hands, rather than use cutlery like in the U.S. I couldn't really venture out in Bangalore, but I did notice the number of pubs strewn around, there was at least one in every street or even more!

Post dinner, we started our preparation for the workshop presentation. The workshop, unlike the seminars, was meant to be more interactive. I assumed we were located in a busy part of the city as I could hear blaring horns and screeching brakes all through the night! The view from my hotel room was of a Dominos Pizza outlet with their delivery bikes parked in straight lines and McDonalds just across the road. Although I was tempted to have a hamburger in the morning, I had to control my hunger pangs with a round of steamy idlis and fresh fruit juice for breakfast!

We were joined by 2 more members from the VisaPro India team on 12^th morning. By the time I reached the venue, every detailing was already taken care of in order to ensure a hassle-free session. I was looking forward to this event in particular as this was the first time that I was going to be a part of an immigration workshop. I was pleasantly surprised to see that a few attendees reached the venue almost two hours in advance. Later I figured out that it was because of the chaotic and slow moving traffic of the city.

The workshop commenced dot on time and the attendees looked anxious to get started and make the most of this interactive event. The event was very well laid out in order to maximize the interaction between the members and so the attendees were grouped in teams and seated on round tables. The event started with an introductory warm-up session, and then moved on to discussing typical case scenarios and visa options for corporates. The session had immigration activities as an important part of the agenda to keep up the spirit. One such interesting and novel activity was called “Beat-the-competition”, a thought provoking immigration crossword puzzle where the members had to work in their respective groups to solve the same and win a prize. The Question and Answer session, like in the previous events at Delhi and Pune, helped me a great deal in getting the true feel of the immigration knowledge of the audience and their specific concerns.

During my interaction with the participants at the event, I found that most questions were centered on reasons of visa denial for identical applications, consular appointment procedures, the process to expedite them, and H-1B visa transfers for beneficiaries in India. VisaPro India team's knowhow of consular procedures, practices and their updates on unpublished information on consular processing due to case representations benefited the event participants a lot. In all, it was a yet another interesting and satisfactory session.

After the event, we had an authentic south-indian meal for supper and then left for the city railway station to board a train to Chennai. The thought of traveling by train brought forth a mix of emotions-anxiety, thrill, fear and lots more! The railway platform was a sight I wouldn't forget for years to come! We saw passengers swarming around, frantically looking for their compartment and we seemed to be pretty much doing the same! We boarded the train, and were just about to settle down comfortably, only to find out that we were in the wrong compartment and would have to rush back to make sure we find ours before the train starts off! Finally, we found our compartment and looking at the berths I realized I had found one reason to never travel by train again- they weren't made for tall people, like me! We settled down on our respective berths and got ready to retire for the day mentally preparing ourselves for another session in Chennai the next morning.

A Rendezvous with India: Immigration Seminar in Pune

After an initial glimpse of India, through my two days of stay in Delhi, I was all set to head towards our next destination for the seminar-Pune. We landed in Pune on 10th early morning around midnight. The cab driver helped us in finding our way to the hotel at 2AM. My room in the hotel was particularly nice. Thanks to the view from my window of a building under construction. It was amazing to see women laborers carrying material like bricks to the building site and it was an experience to see them work together. This was a sight I could’ve never seen in the United States!

We finally reached the venue about an hour before the program was scheduled and it was pleasing to see the impeccable arrangements made at the venue. It seemed like a great start and I was rearing to go. As I waited for the event to commence, I noticed many people had arrived well before time and still there was very minimal interaction in the hall. An interactive hi-tea session before the start of the seminar, instead of having it in the midst of the event, would have been a better platform to interact with the audience and get an insight into their concerns in order to be better prepared with answers to their queries. With over 220 persons to cater too, I was amazed by the efforts of the entire VisaPro India team to make it all look so smooth and effortless.

The response that we received at the seminar was overwhelming, with a lot of people asking many interesting questions. The audience was primarily from the IT fraternity and so was interested in weighing various options of getting to the U.S. The Q and A session would have been more productive, in my view, had we screened the questions maybe during the presentation and segregated them into categories. This would have also facilitated my planning for the questions well in advance as I personally like explaining things in detail!

I would be missing out on one of the most interesting elements of the whole Pune trip if I don’t share my experience of the “autorikshaw ride back to the airport”. We had very less time in order to catch the flight. Adding to the time crunch, I found it pretty tough to fit into the rather small sized auto. I believe they aren’t meant for very tall people! The cab driver seemed to be more concerned about my flight and so he in turn literally flew the cab! I was so scared, and knew I had no option but to close my eyes and let the cab driver take over. This was no less than a long dreadful yet exciting rollercoaster ride given the number of potholes we were flying over!

Overall, it was an overwhelming experience to see such a good turnover of about 220 attendees at the venue. I think this was an extremely well organized and well planned seminar. As the day came to an end, we had started planning for our next event, the workshop at Bangalore. The workshop was planned as a more interactive session than the seminars we had. A new experience, I was certainly looking forward to, after the success of our last two seminars. We had a break of a day before we had to fly to Bangalore. I still couldn’t catch up on sight-seeing, rather stayed back in the hotel room planning for the upcoming events.

A Rendezvous with India: Immigration Seminar in New Delhi

I (Thomas Joy) had heard a lot about India from friends who had visited this country famous for its cultural heritage. On my way to India, I had a brief stop-over in Singapore. The flight to Singapore was good, and I had a few hours in transit in Singapore before I boarded my next flight to New Delhi. I utilized these few hours sight-seeing… and the first word that came to my mind on my way from the airport to the city-center was “beautiful”. It was nice to see so much greenery on my way, and then the concrete structures started outnumbering the natural vegetation, and I realized that I was approaching the city. Singapore is colorful… the boat ride across the town, watching people dance in colorful clothes… everything was amazing.

I landed at the International Airport in Delhi late night on Saturday, October 7th, 2006. VisaPro India team members were already there to receive me and we reached our hotel close to midnight. Being an early morning person, I woke up at 5 am local time and started reviewing the materials for the events and preparing the presentation. For breakfast, I had “idlis” and “sambhar”. Idli is a kind of steamed dough made of rice flour. Sambhar is a famous South Indian vegetable curry that goes with a lot of dishes. Since this was my first visit to India and I was yet to adjust to the environment and food habits, VisaPro India team made sure I avoided too spicy or oily food. The whole of Sunday was spent fine-tuning the presentation materials and discussing about the type of audience expected, the most common queries received at VisaPro India office, and learning about the policies and procedures at the consulates in India.

Monday was the day of our seminar in New Delhi. The venue, Claridges Hotel was excellent. Located in the heart of the city, The Claridges has been a landmark in Delhi since the 1950’s. I was equally impressed by the professionalism with which the event arrangements were handled by VisaPro India team.As expected, the audience was intelligent. Over 100 attendees comprising of HR professionals, Legal professionals, CEOs and other executives from various companies were present. During the break for high-tea, I had an opportunity to interact with the audience and understand their issues. This also gave me more ideas regarding the type of questions I may need to answer in the Questions and Answers (Q&A) section of the program.

I liked the mock-interview session where we called one of the attendees for a visa interview. The volunteer for the visa interview had already appeared for a real B-1 visa interview once and an H-1B visa interview twice at the

U.S.

consulate earlier. Thus, he answered all my questions very well and, needless to say, I had to grant him the visa. The Q&A session was even more interesting as the situations presented by the attendees were quite unique. I had a tough time understanding the handwriting of some persons, and I suggested to the VisaPro India team that the Question Cards should be screened in advance or the person asking the question should be given an opportunity to explain what he had written. Overall our first seminar went as planned, it started on time and ended on time, and we were able to give an opportunity to almost everyone in the audience to present their issues and ask questions.

Since I had a packed schedule for the whole week, I didn't get much time for sight-seeing. We had another seminar in Pune the next day, and had a couple of hours between the time we wrapped everything up in Delhi and the scheduled departure time for our flight to Pune. We stopped by at a restaurant on our way to the airport to pick up something for dinner… and this is how I tasted “biryani”, a dish made of rice and vegetables. I heard that non-vegetarian biryani is awesome, but I had to resist it, to avoid going into the seminars and workshops during the week with an upset stomach. From Delhi to Pune we flew “Kingfisher airlines” and had a nice flight. We reached Pune much beyond midnight, looking forward towards managing a much bigger event, which had over 220 attendees.

Obtaining a Social Security Number

Social Security Number (SSN) is a unique number issued to US citizens, Permanent Residents, and to certain foreign nationals who meet the eligibility criteria. In the 1930s, the first Social Security Number was issued, and the federal government mandated that all legal residents and citizens of US must have a valid Social Security Card. The Social Security Administration (SSA) issues Social Security Numbers (SSN) to applicants who meet the criteria.

SSN is a nine-digit number divided into three parts. The first three numbers generally indicate the area numbers: the state of residence at the time the person applied for his or her first card; the middle two digits of the SSN, the group numbers which range from 01 through 99, merely serve to break the numbers into blocks of convenient size and the last four characters, the serial numbers ranging from 0001 through 9999 represent a straight numerical progression of assigned numbers.

Importance of SSN

A Social Security Number (SSN) issued by Social Security Administration, is a number issued to citizens, permanent residents, temporary (working) residents and foreign citizens in the United States. It is generally needed for employment purposes. If you plan to work, have an assistantship, or get a driver's license, you must have a Social Security Number.

Primary Purposes of SSN:

Tracking working individuals for taxation purposes & yearly wages
Trace entire credit history of any person
Check eligibility for Social Security benefits
Report wages to the government
Payroll deductions for old age, survivors, and disability insurance
Many institutions also use the SSN as the student ID number

Applying for SSN

U.S. Citizens

Completed Form SS-5 (Application For A Social Security Card)
Proof of U.S. citizenship: You may submit U.S. birth certificate, U.S. consular report of birth, U.S. passport, Certificate of Naturalization or Certificate of Citizenship
Proof of Age: Your birth certificate or passport may be submitted to prove your age
Proof of identity: Your identity must be current (not expired) and show your name, identifying information (date of birth or age) and preferably a recent photograph. Your U.S. driver’s license; State-issued non-driver identification card or U.S. passport may be used to prove your identity. If you do not have one of these specific documents or you cannot get a replacement for one of them within 10 days, other documents that can be considered are:
- Employee ID card;
- School ID card;
- Health insurance card (not a Medicare card);
- U.S. military ID card; or
- Adoption decree.

Non-citizens who have work authorization from DHS

Completed Form SS-5 (Application For A Social Security Card)
Documents to prove your Immigration status & Work Eligibility: The I-94 (Arrival/Departure Record) issued to you when you arrived in the United States will be needed to prove your immigration status.
If you are an F-1 or M-1 student, you will be required to show Form I-20 (Certificate of Eligibility for Nonimmigrant Student Status). If you are a J-1 or J-2 exchange visitor, you will be required to show your Form DS-2019 (Certificate of Eligibility for Exchange Visitor Status).

An F-1 student authorized to work in curricular practical training, must provide the Form I-20 with the employment page (page 3) completed and signed by a designated school official. Evidence of the employment, such as a recent pay slip or a letter from your employer will also be necessary. Your supervisor must sign and date the letter and it must describe the following:
- Your job
- Your employment start date
- The number of hours you are, or will be, working
- Your supervisor’s name and telephone number

Proof of age: Your birth certificate or passport may be submitted to prove your age
Proof of your identity: A current DHS document will be required by the Social Security Office. Acceptable documents include:
- Form I-551 (includes machine-readable immigrant visa with your unexpired foreign passport)
- I-94 with your unexpired foreign passport
- Work permit card from the Department of Homeland Security (I-766 or I-688B).

Non-citizens who have work authorization from DHS

Lawfully admitted non-citizens who are not authorized to work, can get many benefits and services without a Social Security number. SSN is not required to conduct business with a bank, register for school, apply for educational tests, obtain private health insurance, apply for school lunch programs or apply for subsidized housing.

Without permission to work, you may apply for a Social Security number only if:
- A federal law requires you to provide your Social Security number to get a particular benefit or service; or
- A state or local law requires you to provide your Social Security number to get general assistance benefits that you already have qualified for.

Cost of SSN:

There is no charge for a Social Security number and card.

Types of Social Security Cards:

There are three types of Social Security cards which show your name and Social Security number.

The first type of card is issued to:
- U.S. citizens; and
- People lawfully admitted to the United States on a permanent basis.
The first type of card is issued to:
- People lawfully admitted to the United States on a temporary basis who have DHS authorization to work.
The third type of card is issued to:
- Foreigners who are lawfully admitted to the United States without work authorization from DHS, but with a valid non-work reason for needing a Social Security number; or
- Foreigners who need a number because of a federal law requiring a Social Security number to get a benefit or service.

Processing Time

SSA needs to verify your documents with DHS before they assign a Social Security number to you. Most of the time, SSA can verify your documents quickly with DHS online; however, if your documents cannot be verified online, it may take DHS several weeks to respond to SSA’s request.

Can I start working without SSN?

SSA does not require you to have a Social Security number before you start work. However, the Internal Revenue Service requires employers to report wages using a Social Security number. While you wait for your Social Security number, your employer can use a letter from SSA stating that you applied for a number. Your employer may use your immigration documents as proof of your authorization to work in the United States.

Contacting Social Security

For more information about Social Security Administration, you may visit www.socialsecurity.gov.

Significance of Poverty Guidelines in Filing Affidavit of Support

The U.S. Department of Health and Human Services (HHS) recently issued the annual update of Poverty Guidelines for the year 2006. The HHS poverty guidelines, or percentage multiples of them (such as 125 percent, 150 percent, or 185 percent), are used as an eligibility criterion by a number of federal programs by various Departments such as Health and Human Services, Agriculture, Energy, Labor etc. Some state and local governments also use the federal poverty guidelines in some of their own programs and activities. This article explains the significance of Poverty Guidelines and their importance with respect to Immigration law.

Understanding Poverty Guidelines

There are two slightly different versions of the federal poverty measure:

The poverty thresholds, and
The poverty guidelines

The poverty thresholds are the original version of the federal poverty measure. The thresholds are updated each year by the Census Bureau and are used mainly for statistical purposes — for instance, preparing estimates of the number of Americans in poverty each year.

The poverty guidelines are the other version of the federal poverty measure. They are issued each year in the Federal Register by the Department of Health and Human Services (HHS). The guidelines are a simplification of the poverty thresholds for use for administrative purposes — for instance, determining financial eligibility for certain federal programs.

Poverty Guidelines and Immigration

Generally, applicants for a nonimmigrant or an immigrant visa must show that they will not become a public charge while in the U.S. The poverty guidelines are used in calculating levels of income and assets that immigrant visa petitioners and joint sponsors must demonstrate in their I-864, Affidavits of Support.

What is an Affidavit of Support?

The I-864, Affidavit of Support, is a contract between a sponsor, the applicant, and the US government, that is required for all family based immigrant visas and some employment based immigrant visas. In this contract the sponsor agrees to provide financial support for the applicant until he/she becomes an American citizen or can be credited with 40 quarters of work (usually ten years). The sponsor must show that he/she has income equal to or greater than 125 percent of the federal poverty guidelines for his/her household size.

Who needs an I-864 Affidavit of Support?

The following applicants for immigrant visas need an I-864:

All applicants in family-based immigrant visa categories
Orphans to be adopted in the United States (IR-4)
Applicants for employment-based immigrant visas whose relative filed the immigrant visa petition or whose relative has a five percent or greater ownership interest in the business that filed the petition

What are the income requirements for an Affidavit of Support?

As a sponsor, joint sponsor or a substitute sponsor, you must meet certain income requirements. You must show that your household income is equal to or higher than 125 percent of the U.S. poverty level for your household size. If you, the sponsor, are on active duty in the Armed Forces of the United States, and the immigrant you are sponsoring is your spouse or child, your income only needs to equal 100 percent of the U.S. poverty level for your family size.

What does household size mean on the I-864?

Household size means all those living in the sponsor's house or are dependent on the sponsor for support. The household size is:

The sponsor
All relatives by blood, marriage or adoption living in the sponsor's household
All dependents listed on the most recent federal tax forms (IRS 1040, 1040A or 1040EZ), whether or not they live in the sponsor's household
Any individuals for whom the sponsor has already signed an I-864 and for whom the contractual obligation still exists
The applicant (beneficiary) for the visa
The applicant's (beneficiary's) accompanying dependents

For example, if you have a spouse and two children and you want to sponsor your brother and his wife, you must prove that your household income is equal to or higher than 125 percent of the U.S. poverty level for a family of six, or $33,500, from the table below. You must also include in your household size any immigrants you have previously sponsored under this part of the law. In the above example, if you had previously sponsored your parents and your sister, your household size would be nine persons and you would need a household income of 46,250 ($42,000 + $4,250).

What are the Poverty Guidelines for 2006?

The following tables show the Poverty Guidelines for the year 2006. Guidelines vary by family size. In addition, there is one set of figures for the 48 contiguous states and D.C.; one set for Alaska; and one set for Hawaii.

For the 48 Contiguous States, the District of Columbia, Puerto Rico, the U.S. Virgin Islands, and Guam:
Sponsor's Household Size	100% Poverty Line	125% Poverty Line
2	13,200	16,500
3	16,600	20,750
4	20,000	25,000
5	23,400	29,250
6	26,800	33,500
7	30,200	37,750
8	33,600	42,000
	Add $3,400 for each additional person	Add $4,250 for each additional person

2006 Poverty Guidelines for Alaska:
Sponsor's Household Size	100% Poverty Line	125% Poverty Line
2	16,500	20,625
3	20,750	25,937
4	25,000	31,250
5	29,250	36,562
6	33,500	41,875
7	37,750	47,187
8	42,000	52,500
	Add $4,250 for each additional person	Add $5,312 for each additional person

2006 Poverty Guidelines for Hawaii:
Sponsor's Household Size	100% Poverty Line	125% Poverty Line
2	15,180	18,975
3	19,090	23,862
4	23,000	28,750
5	26,910	33,637
6	30,820	38,525
7	34,730	43,412
8	38,640	48,300
	Add $3,910 for each additional person	Add $4,887 for each additional person

These poverty guidelines remain in effect for use with the Form I-864, Affidavit of Support, from March 1, 2006, until new poverty guidelines go into effect in the spring of 2007.

Can assets be included to meet the 125% minimum income requirement?

Yes. The sponsor’s income is counted first. Next the personal assets and/or the income and assets of household members who have signed an I-864A are counted. If, using all of those sources, the minimum income requirement is met, the affidavit would be "sufficient." To be counted, the cash value of assets must equal five times the difference between the sponsor's income and 125 percent of the poverty line for the household size. For example, if you have a family of six, but your income is only $30,000 you are $3,500 short of the required income level. You would need to show assets of at least $17,500 ($3,500 x 5).

What can be used as assets?

Assets can be savings, stocks, bonds and property. They must be easily converted to cash.

If the poverty guidelines change between the time the petitioner signed the I-864 and the issuance of an immigrant visa, must the petitioner/sponsor and joint sponsor, if required, submit a new I-864?

As long as the I-864 was submitted to a consular officer within one year of the date it was signed and notarized, a new I-864 is not required. However, the petitioner/sponsor and the joint sponsor must meet the minimum income requirement based on the federal poverty guidelines in effect on the date of the visa issuance, not those in effect when the form was signed.

Conclusion

As discussed above, an applicant for a nonimmigrant or an immigrant visa must overcome the designation of “public charge” in the U.S. An Affidavit of Support is a significant document that is required in almost all family based green card applications and certain employment based green card applications. One is often confronted with a variety of questions while filing an Affidavit of Support, such as, whether you are eligible to file an Affidavit of Support; which income requirements will apply to your application; whether you need a joint sponsor; whether you can sponsor only the principal applicant and exclude the dependants; whether you satisfy the domicile requirement; and so on.

We at VisaPro have helped various immigrant visa applicants by correctly determining their specific situation and assisting them in the best possible manner to ensure the success of their visa application. We understand that your visa application may be a realization of your dreams to live and work in the U.S. Our experienced Immigration Attorneys take pride in assisting you and effortlessly guiding you through each step of your visa process. Consult a VisaPro attorney to determine the best possible ways of bringing your relative into the U.S.

Adjustment of Status vs. Consular Processing

Permanent residence (Green Card) status is conferred either through issuance of an immigrant visa at a U.S. consulate abroad or through approval of an ‘adjustment of status’ application (Form I-485) by the USCIS in the U.S. For those present in the U.S. both alternatives may be available. Foreign nationals going through the permanent residence process often find themselves trying to figure out which of the two alternatives is better for their case. This summary is for those applicants who have a choice.

Advantages of Adjustment of Status Over Consular Processing:

Concurrent Filing Available. Adjustment of Status is Quicker than Consular Processing: With concurrent filing process available for both employment and family based green cards, Adjustment of Status may be quicker than processing an immigrant visa at the consulate.
Adjustment of Status Provides Protection to Aged-Out Children thru CSPA: If a child is near age 21, Adjustment of Status (especially concurrent processing) may protect the child better than consular processing through the use of the Child Status Protection Act (CSPA). The CSPA will ‘freeze’ the child’s age at the time of filing the adjustment of status application.

Let’s look at a case where Child Status Protection Act (CSPA) is used.

CASE SCENARIO #1
Q: John has been in the U.S. as an F-1 student for the last three years. His father came to the U.S. several years before as a permanent resident. John’s father will be sworn in as a U.S. citizen next week, only one month before John’s 21st birthday.		A: As soon as John’s father has his Certificate of Naturalization they are going to file and adjustment of status package for John. The filing of the I-130 and I-485 will ‘freeze’ John’s age at under 21 for immigration purposes allowing him to immigrate as an immediate relative child, even after he turns 21. For more information keep reading.

Interview is Not Required in Employment-Based Adjustment of Status Unlike Consular Processing where Interview is Mandatory: In employment-based cases, there is usually no interview with adjustment of status. There is always an interview in a consular process.
No International Travel is Required in Adjustment of Status: Consular Processing may require travel by the principal applicant and family members to the American consulate in the country of nationality or last residence. Adjustment of Status does not require any international travel.
Attorneys Can be Present with the Applicant During Adjustment of Status Interview: Attorneys can be present if an interview does occur on an Adjustment of Status application at the USCIS. Clients have no right to attorney representation at most American consulates.
Adjustment of Status is Simple and Easy. No Vast Documents are Required unlike Consular Processing: Document availability is another issue, particularly as it relates to foreign police clearances. Police certificates from all countries where the foreign national lived for six months or more since age 16 are required in consular process. If a foreign national has lived in many countries for a substantial period of time, obtaining police clearances from every country, especially those from which they have no present connection, can be difficult and delay the immigrant visa processing substantially. Police certificates are not required in Adjustment of Status cases.
Provision to Change Employers Freely “Portability Provision” is Available to Employment-Based Adjustment of Status Applicants: Under AC21, employment-based adjustment applicants are not required to remain employed with their sponsoring employers if the USCIS does not adjudicate their application within 180 days (which virtually never occurs). This flexibility — known as portability — does not exist in consular processing.
Adjustment of Status Applicants Can Accept Employment in the U.S. unlike Applicants who Applied for Consular Processing: The adjustment applicant, and his spouse and children under age 21, can obtain employment authorization documents shortly after filing for adjustment of status. This may eliminate the need to extend nonimmigrant status during the pendency of the adjustment application (however, it may be recommended for some clients to maintain H or L status if possible). It is not possible to obtain an employment authorization document for those foreign nationals living in the U.S. during the pendency of the consular processing of an immigrant visa application.
If an applicant is subject to a ground of inadmissibility under INA §212(a), for which a waiver is available, the advantage for adjustment of status applicants is that the foreign national is in the U.S. and can continue to work and stay with their family while the waiver is being reviewed.

CASE SCENARIO #2
Q: Juanita entered the U.S. as a visitor two and a half years ago. She remained in the U.S. because she met the man of her dreams and she could not bear to be separated from him. They finally got married last week.		A: If Juanita were to travel to her home country of Peru to process her immigrant visa she would be subject to the ten year bar for overstaying her authorized stay as a visitor. Her husband would have to file a waiver for her and she would have to remain in Peru until the waiver is approved (and there is no guarantee that the waiver would be approved). However, if she files for adjustment of status she will receive an automatic waiver of overstay because she is married to a U.S. citizen. For more information keep reading.

Applicants May Appeal or Renew a Denied Application for Adjustment of Status whereas Consular Processing Applicants Cannot: There are procedures for appealing or renewing a denied application for adjustment of status. There are no such procedures for a denied immigrant visa application.
Applicants Stay Inside the U.S. even when their Application for Adjustment of Status is Under Processing: If there are USCIS delays in deciding an adjustment application, the foreign national is able to remain in the U.S. and continue working. If there are delays in the consular processing of an immigrant visa application following the interview, the foreign national may be stranded outside the U.S. until the problems are resolved.
Adjustment of Status Provides a Status Bridge between nonimmigrant status to Permanent Residence: The filing of an Adjustment of Status application provides a status bridge between nonimmigrant status and permanent residence. The preparation of an immigrant visa application at an American consulate abroad provides no status other than the nonimmigrant status presently being maintained by the foreign national. To avoid incurring the three and ten year bars, immigrant visa applicants in the U.S. must be vigilant to maintain an unexpired visa status.

On balance, the safeguards attached to adjusting status in the U.S. frequently make it the more attractive option in obtaining U.S. permanent residence. Yet with all of the advantages of Adjustment of Status there are times when it may be advantageous to process an immigrant visa at the consulate abroad.

Advantages of Consular Processing Over Adjustment of Status:

Consular Processing for Employment-Based Immigrant Visa is Faster than Adjustment of Status: The greatest advantage has traditionally been timing. Traditionally, immigrant visa processing at the consulate could save an employment based applicant 3 to 18 months depending upon the consulate involved and the USCIS office having jurisdiction over the Adjustment of Status application. However, given the increased delays in consular processing since September 11, in many cases consular processing may no longer offer any significant advantages in this respect. In addition, this advantage is neutralized where concurrent processing is utilized.
Consular Processing Applicants Does Not Need to Obtain Travel Document: Upon the filing of an Adjustment of Status application, the foreign national may have restrictions on travel outside of the U.S. With the exception of aliens maintaining H or L status, adjustment applicants must file for and obtain Advance Parole travel permission to leave the U.S., or their applications will be deemed abandoned. Applicants applying for immigrant visa at the consulate, on the other hand, are able to travel without restriction assuming that they have valid visas for travel. However, many nonimmigrants will be unable to travel in either case because of issues of immigrant intent on re-entry after filing an immigrant petition.
Consular Processing Applicants Does Not Have to Maintain Valid Status in the U.S.: An applicant for Adjustment of Status may need to maintain valid status during the pendency of the Adjustment of Status application. There is no such requirement for the immigrant visa applicant (however, if the immigrant visa applicant has 180 days of unlawful presence in the U.S., he or she will be subject to a three-year bar to returning to the U.S., or a ten-year bar if he or she had one year of unlawful presence)
Consular Processing Strengthen Family Unification: If the family (spouse and children) of the foreign national are outside of the U.S., it is often advantageous for the entire family to process their immigrant visa applications together at the American Consulate. Otherwise the family must wait for the principal alien to complete the adjustment of status before they can start the immigrant visa process.

Let’s take one last look at another situation. This is one where consular processing is to the advantage of the foreign national spouse.

CASE SCENARIO #3
Q: Sheila, an Australian citizen, married her fiancée Murat, a U.S. citizen. Sheila has traveled to the U.S. numerous times over the three years she has been dating Murat. They had the opportunity to marry in the U.S. and have Sheila apply for adjustment of status, but instead decided, because of Sheila’s job, to marry in Australia and process her immigrant visa at the U.S. consulate there. Sheila is a partner in a large accounting firm in Sydney and did not want to wait the 90-120 days it would take to get work authorization through adjustment of status before she could work in the U.S.		A:When she enters the U.S. with an immigrant visa she will be able to start a new job immediately. For more information keep reading.

Conclusion – Adjustment of Status or Consular Processing:

Many factors go into choosing between Adjustment of Status or Consular Processing.

The relative advantages given above should help permanent residence applicants make an informed judgment regarding the venue for the completion of their case.

For more information on Consular Processing and Adjustment of Status please Contact VisaPro. Our experienced attorneys will be happy to assist you

We cover the latest happenings on work visas and family visas in Immigration Monitor, our monthly newsletter. Click here to subscribe to Immigration Monitor.

Do You Know the Consequences of Overstaying a Visa in the US?

Overstaying your time in the US is no longer overlooked. The issue of overstaying while on a nonimmigrant visa has been getting serious attention in recent years. However, much confusion still exists over the regulations relating to foreign nationals present in the US beyond their authorized period of stay.

Prior to the passage of the 1996 reforms of the US immigration law, persons who overstayed a visa did not face huge consequences. Even though overstays were deportable and considered to be in the US without legal status, they could still receive a number of immigration benefits. For example, visa overstays could still Adjust Status upon payment of a civil penalty, they were eligible to apply for Asylum, Suspension of Deportation, voluntary departure, and were able in many cases to simply depart from the US and reenter

1996 Reforms [IIRAIRA of 1996]

In the 1996 reforms, the law relating to overstays was drastically changed. The impact of the new law on overstays is particularly harsh. Often foreign nationals who were otherwise eligible for further benefits, such as a work authorized nonimmigrant visa or employment based immigrant visa, are denied the opportunities because of overstaying visa in US.

An overstay could be any nonimmigrant (B-2 visitor, F-1 student; H-4 spouse; visa waiver tourist, or persons in any other nonimmigrant category) that stays beyond the time authorized at the time of entry or any extensions they receive.

The law on overstays is different from the previous law in several significant ways. An automated system, coupled with the use of Machine Readable Passports, will maintain entry and departure records of all persons coming to the US.

I. Consequences of Overstaying a Visa:

Some of the consequences of overstaying a visa are:

Overstays may be barred from returning to the US for ten years or three years depending on the period of overstay
Overstays may be further restricted from Extension of Stay or Change of Status
Overstaying will void your existing visa
Overstays generally are unable to obtain a new visa except in their country of nationality
Overstays may not be able to Adjust Status in the U.S.

These consequences may be considered as below:

(i) Inadmissibility as a consequence of Overstaying a Visa
The 1996 reform created two new grounds of inadmissibility for foreign nationals who remained in the US after the expiration of the period of stay authorized by the Attorney General through the immigration inspector at the time of entry.

The Three Year Bar: Persons who remain in the US after their authorized stay has expired for more than 180 days but less than one year, and who leave the US prior to the institution of removal proceedings, are barred from reentering the US for three years from their date of departure.
The Ten Year Bar: Persons who remain in the US after their authorized stay has expired for more than one year, and who leave the US prior to the institution of removal proceedings, are barred from reentering the US for ten years from their date of departure.

(ii) Bar to Change of Status and Extension of Stay as a consequence of Overstaying a Visa
Persons who remain in the US after their authorized period of stay are not able to extend their stay in the US or change their status to another nonimmigrant status. In most cases they are also barred from adjusting their status from that of a nonimmigrant to that of an immigrant.

However, the USCIS stated that as long as a foreign national files for an Extension of Stay or Change of Status or Adjustment of Status before the period of authorized stay expires, the foreign national will be considered to be maintaining status until a decision is made on the application or petition, even if the decision is after the date on the I-94 expires.

(iii) Visa Voidance as a consequence of Overstaying a Visa
Another major change in the law affects your current visa. The visa of any foreign national that overstays their period of stay is automatically voided. Immigration is very strict in its interpretation and application of this provision – overstaying by even a day will void your existing visa. A foreign national who has overstayed a visa may not be readmitted unless they have obtained a new nonimmigrant visa in their country of nationality.

(iv) No Consulate Shopping as a consequence of Overstaying a Visa
The new law provides that any foreign national who has stayed beyond his period of authorized stay in the US must return to his country of nationality to obtain a new visa. You may no longer apply at a Consulate that is ‘more convenient’ or closer to the US. If there is no Consulate in your home country of nationality which issues visas, the Secretary of State may designate a third country where those individuals can apply for a new visa.

There is a narrow exception to this rule. If the foreign national can show that ‘extraordinary circumstances’ exist, they may be allowed to apply for a visa at a Consulate in a third country, i.e., a country that is not their country of nationality. Any person wanting to take advantage of this exception must receive the consent of the third country Consulate before making an appointment and submitting a nonimmigrant visa application.

II. Waiver of the Three or Ten Year Bar of Inadmissibility for Overstays

(i) Nonimmigrants
The 1996 reforms do not include a waiver of the three or ten year bar for nonimmigrants. The immigration laws do not, however, preclude a nonimmigrant from applying for a general waiver under section 212(d)(3). Section 212(d)(3)makes available to nonimmigrants a general waiver for most grounds of inadmissibility.

(ii) Immigrants
The statute does provide a specific waiver for the three or ten year bar for foreign nationals who are the spouse, or son or daughter of a US citizen or permanent resident. The waiver is not available to foreign nationals who only have children who are US citizens or permanent residents. To obtain the waiver the foreign national must show that their US citizen or permanent resident spouse or parents will suffer ‘extreme hardship’ if the foreign national is not allowed to return to the US. ‘Extreme hardship’ to the foreign national himself is not recognized for the purposes of the waiver.

III. How to avoid Overstaying a Visa and its Consequences

Check the expiration date on your I-94. You must leave the US on or before the expiry of the authorized period of stay granted at admission or with any subsequent Extension of Stay or Change of Status, unless you file a timely, non-frivolous application for Extension of Stay, Change of Status or Adjustment of Status.
Make sure to document your departure. Get your passport stamped when you enter another country, save your airline tickets and/or boarding pass, save your travel itinerary etc.

The consequences of being found to have stayed beyond your period of authorized stay in the US are numerous and harsh; from having to get a new visa to return, to facing a ten year bar from reentering the country. It is just not worth the risk anymore to get in that extra day of vacation.

If you have questions regarding overstay and its consequences on your future travel to the U.S. Consult a VisaPro attorney.

The above article is brought to you by "VisaPro.com". VisaPro’s US Immigration Lawyer Services include H-1B, K-1 Visa, K-3, L-1, Green Card, E-3 and over 100 Immigration Services.

The information in this article is not intended to be legal advice. If you have questions specific to your case, we suggest that you consult with the experienced immigration attorneys at http://consultattorney.visapro.com

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