Should I leave the U.S. before my visa expires? Differences between Visa and Status


Two common questions: 

  1. My student F-1 visa is going to expire next month. Should I leave the United States now to get a new visa stamp? 
  2. I am changing my status to B-2 (or any other nonimmigrant status). My application is pending but my original status already expires. Will I be in trouble?

To answer these questions, we must first be able to know the basic definition of and differences between visas and status.

Visa is a permit or ticket for foreigners to enter the United States. Visas are divided into two categories: immigrant visa and nonimmigrant visas. Immigrant visas are those entry permits with the purpose of immigration (staying in the U.S. permanently). Nonimmigrant visas, on the other hand, allows foreign visitors to come to visit the States for specific purposes like sight-seeing, business trips, study, work, or investment for only a limited period of time.  

When foreign visitors arrive in the U.S., the first thing they meet is the U.S. Customs and Border Protection (CBP). The CBP officer would first inquire visitors about the purpose of their visits and check the relevant permit/visa for entry. If the visa for entry is not found, the visitor will be deported immediately. If there is a valid visa in the passport, the CBP would determine what lawful status this visitor would hold and the period of authorized stay. Each type of visa has correlating periods of authorized stay: permanent stay for Green Card holders, up to six months for B-1/B-2 visa holders, and for H-1B is up to three years. Your recent 5-year history of entry to the U.S. with authorized stay could be usually found at your I-94 on CBP’s website. (CBP I-94 Blog Post found Here). 

For international students, the authorized stay is usually marked as D/S (Duration of Status). This means that so long as you maintain the full-time student status at the appropriate school and does not commit any deeds violating the condition of status, you may stay and study in the U.S. within the corresponding period on the I-20 or Employment Authorization Card (EAD) if in Optional-Practical Training (OPT), rather than that on the F-1 visa stamp. However, if during this period of authorized stay, you decide to leave the U.S. with an expired F-1 visa and come back to continue your study, you will need to apply for a new F-1 visa to reenter the U.S.

Once you enter the U.S. legally, you may be eligible to extend or change your status if you would like to stay in the U.S. longer or for different purposes. The application to extend or change of status (Form I-539) must be filed BEFORE the expiration of the original status. Once the Change or Extension of Status is filed and received by the U.S. before the original status expires, the foreigner is permitted to stay. But if the USCIS denies the application for change/extend the status in the end, the foreigner needs to leave the U.S. immediately afterward. If you overstay your visa, you may accrue unlawful presence in the U.S. which may result in 3-year, 10-year or permanent bar from re-entering the U.S.

If you have any questions, you should contact a local Immigration Lawyer, or you can contact Fickey Martinez Law Firm to set up a consultation with one of our attorneys.


Related Blog Post:

From F-1 Student to H-1B Worker: Things to Note

An Electronic I-94: A Brief Explanation



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