If my visa has run out but my I-94 hasn’t, when do I need to leave the U.S.?

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Question:

I’m here in the U.S. on an H-1B visa, which I just realized ran out last week. But my I-94 shows that I have three years to stay and work in the United States. Have I done something wrong? Do I need to renew the visa?

Answer:

No need to panic, you have not done anything wrong. Contrary to widespread misperception, a “visa” is simply a U.S. entry document. The date on it literally shows the last date upon which you could show up at a U.S. airport or border and request entry. It has nothing to do with the date by which you must leave the United States.

As you were probably figuring, the date you must leave the U.S. is that entered by the Customs and Border Protection (CBP) officer who met you at the U.S. airport or border. He or she would have put the date on your Form I-94 card (Arrival/Departure Record). Before April 2013, all nonimmigrants visiting the U.S. received a paper I-94. After this date, the vast majority of U.S. visitors will not receive a card and can instead access this information on the CBP website.

It is not uncommon for a visa to run out before the I-94 does (except in cases of multiple entry visitor visas, which typically last for several years). You are completely within your rights to stay within the U.S. until the date on your I-94.

If your employer wants to keep you on longer than three years, you should be able to apply to U.S. Citizenship and Immigration Services (USCIS) for a “extension of status.” Upon approval, USCIS will issue a new I-94, with a date even farther into the future. (Be sure to submit this application at least three months before your I-94 will expire, to give USCIS time to process it.)

One thing you should be aware of, however, is that if you leave the U.S. and your visa has expired, you will need to get a new visa for U.S. reentry. The exception is if you’re going to Canada or Mexico on a pleasure trip for a visit of fewer than 30 days, in which case, as an H-1B visa holder, your valid I-94 and passport are enough. This is called “automatic visa revalidation.” It is not available to nationals of Iran, Syria, Sudan, or Cuba.

Renewing a visa requires going to the U.S. consulate, preferably in your home country, to apply. As long as you have maintained your status in the U.S., and received approval from USCIS for any extension , this should not be a problem – but allow some time for this step, just in case. Bring the USCIS Form I-797 notice, a copy of the visa petition filed by your employer, and the usual visa application documents, passport photos, fees, and your passport, valid for at least six months beyond the date you will leave the United States. You will likely need to make an appointment with the consulate.

Consult with an experienced immigration attorney if you have any questions, or need help preparing any application paperwork.

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