In order to maintain lawful status when you are in the U.S., it’s important to understand the difference between the two common immigration terms — “Visa” and “Status”. Many people use these terms interchangeably, however, there is a clear distinction between the two terms under the immigration laws.
A Visa is an entry document which allows a foreign national to seek entry into the U.S. The Visa is generally an actual stamp placed in the passport by a U.S. Consulate or Embassy outside the U.S.
Visas can be designated as either nonimmigrant or immigrant.
- Nonimmigrant Visa: Visas given to those who wish to temporarily enter the U.S. to work, visit, study or live. Examples include H-1B, H-4, L-1, L-2, O-1, F-1, etc.
- Immigrant Visa: The Visa given to an individual who is the beneficiary of an immigrant petition or Diversity Visa Lotter recipient who is going to the U.S. to obtain lawful permanent residence or the “green card.”
A Visa does not guarantee the holder admission into the U.S. A U.S. Customs & Border Protection Officer 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.
Status 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.
Status is also designated as either immigrant or nonimmigrant.
- Nonimmigrant status: When a foreign national is admitted into the U.S. on a nonimmigrant visa, the foreign national now holds nonimmigrant status in the classification identified in the visa. For example, an individual with an H-1B visa, once admitted into the U.S., is now maintaining H-1B status.
- It’s important to note that you don’t have to have a visa to gain status in the U.S. For example, Canadians are exempt from having to obtain most types of nonimmigrant visas (except K-1, E-1 and E-2’s). Canadians apply for the nonimmigrant status at the border and are admitted into the U.S. in the requested status.
Those who are admitted generally obtain an I-94 Entry/Departure record
(paper or electronic). I-94 indicates the designated status as well as the expiration date of that status.
- Immigrant status: When a foreign national is admitted into the U.S. on the bases of an immigrant visa, the foreign national becomes a lawful permanent resident.
3. Visa vs. 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 United States. 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 I-94 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.
Your Status only remains valid for the duration of the authorized stay as stated in the I-94. 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 I-94.
My Case Scenario
Jane was granted a B-1/B-2 Visitor Visa by the U.S. Consulate in Dublin. The Visa is valid for 10 years. Those entering the U.S. on a B-1/B-2 visa are generally not admitted for a period longer than 6 months. When Jane comes to the U.S., her I-94 will show that her stay in the U.S. expires 6 months from the date of entry. Once she enters, regardless of the fact that her visa expires in 10 years, she can only stay in the U.S. in B-1 or B-2 status for only 6 months.
My Case Scenario
Henry’s B-1/B-2 Visitor Visa expires in 3 months. When applying for admission to the U.S., the CBP officers grants him 6 months of authorized stay in the U.S. Despite the fact that he only has 3 months remaining on the B-1/B-2 visa, Henry’s I-94 will be issued for 6 months and he will be in valid B-2 status for the duration of his six-month stay.
4. Change of Status
It is generally possible to change from one nonimmigrant status to another after entering 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 or affect Visa.
If you leave the U.S. after a change of status, you must obtain a new visa for the corresponding new status in order to re-enter the U.S. Interestingly, you can also return to the U.S. using the previously issued visa if you wish to resume the prior status.
My Case Scenario
Fred entered the U.S. with an F-1 Student Visa and maintained F-1 status for several years. After graduating, his employer filed an H-1B petition and Fred’s status was changed to H-1B status when it was approved. Fred is traveling home for Christmas. In order to return to the U.S. to resume his H-1B status, he must first obtain an H-1B visa at the U.S. Consulate.
My Case Scenario
Mary is married to Gustav, who is in H-1B immigration status in the U.S. She enters the U.S. with an H-4 visa, as a dependent of someone in H-1B status. Mary changes status in the U.S. to H-1B so she can work. After several months, Mary must quit her job for personal reasons. If she quits her job, she will no longer be in valid status so she decides to leave the U.S.
Since Mary’s H-4 visa that was previously obtained is still valid and her husband is still maintaining H-1B status, she can return to the U.S. with the H-4 visa and when she enters the U.S., she will be in H-4 status.
While some might think that knowing immigration terminology is not important or should be left to the immigration experts, the opposite is quite true. Being knowledgeable about basic immigration concepts and the differences between terms like “visa” and “status” will go a long way in keeping you on the right side of immigration rules!
If you have questions regarding obtaining a U.S. visa, or changing or extending your status in the U.S., our top immigration attorneys will be happy to assist you. Schedule A Free Consultation Today >>
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