What Having a “Visa” Really Means for Small Business Owners
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4. And what About Overstays
It is critical to understand that the document that establishes how long a person can validly stay in the U.S. is neither the visa nor the petition, but the Arrival/Departure Document, known as an I-94, which is issued by the DHS officer at passport control at the time the applicant for admission to the U.S. presents herself. Whatever the I-94 provides as the term of valid stay is the period of authorized valid stay end of story. So, if an applicant is granted a ten-year multiple entry tourist visa, the applicant is not entitled to stay in the U.S. for ten years, but only for the period of time expressly designated on the I-94, which could be six months.
Where an applicant for admission to the U.S. presents a passport to passport control that is due to expire before the supporting petition is due to expire, the I-94 will usually designate the date of expiration of valid stay as being the expiration date of the passport. For this reason, it may turn out that the period of valid stay is less than what is stated in the underlying petition, which can lead to an inadvertent overstay. To militate against this risk, a person should get into the habit of accessing her electronic I-94 after re-admission to the U.S., so that the term of stay in the U.S. can be verified. Since 2013, I-94’s have been issued electronically. DHS’s I-94 database can be accessed via https://i94.cbp.dhs.gov/.
5. The Take Away
- Employers need to understand that obtaining a work visa for an employee is generally a 2 step process, requiring the approval of a petition filed by the prospective employer, and the approval of a visa application submitted by the prospective employee to the relevant consular office in her nation of residence.
- Approval of an employer’s petition does not guaranty approval of the prospective employee’s visa application.
- The I-94 Arrival/Departure document controls the term of valid stay in the U.S. and should be consulted every time an employee re-enters the U.S. after traveling abroad.
Employees traveling abroad with impending expiring passports should get their passports renewed prior to departing the U.S. since this could affect the term of stay authorized in the I-94 that is issued to the employee upon readmission.
Related articles:
The Immigrant Investor Meets Realities, Part I
Part II: EB–5 A -Summary of a Job Creating Enterprise
