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My passport will expire in a few months. Will that affect my ability to be issued a visa at the consulate, or my ability to enter the U.S.? Will it impact an extension of status petition with USCIS?

By January 21, 2021April 30th, 2021Immigration
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I am outside the U.S. and planning to enter. For how long must my passport be valid?

In general, for admission to the U.S., the nonimmigrant must present a passport that is valid until at least 6 months beyond the planned length of stay in the U.S. In the words of the Immigration and Nationality Act (INA), a nonimmigrant who does not possess a passport with such validity is “inadmissible.” INA 212(a)(7)(B)(i). For example, a nonimmigrant who enters the U.S. on January 1st and plans to leave on March 1st must present a passport that is valid until September 1st (six months after March 1st, which is the planned date of departure).

There are, however, certain exceptions. Individuals from countries that have agreed to automatically extend their passport validity for 6 months beyond the expiration date printed on the passport (a majority of all countries) may be allowed entry even if they do not have a passport with a printed expiration date 6 months after the planned date of departure. 9 FAM 302.1-4(B)(2). For a list of these countries, see 9 FAM 403.9-3(B)(2)(f), or click here.

Consular officers have discretion to issue visas to individuals from such countries at any time prior to the passport’s printed date of expiration, but they are not obligated to do so. See 9 FAM 403.9-3(B)(2)(b). If the individual’s passport is valid for the 6-month period but not for the entire period of intended stay, consular officers are instructed to “urge the applicant to have the passport extended, renewed, or replaced before visa issuance,” but the officer may nonetheless issue the visa. However, the permissible period of stay may be limited by the passport’s validity period. 9 FAM 403.9-3(B)(3). The practice of U.S. Customs and Border Protection (CBP), which inspects people seeking admission to the U.S., is similar. CBP will often grant an I-94 arrival/departure record with a validity date that only extends until the passport’s printed expiration date.

It is critical to remember that it is the validity period of the I-94 – not the visa validity period – that determines whether a nonimmigrant has overstayed and accrued unlawful presence, which can carry severe consequences.

I already have a visa and am inside the U.S. I am now applying for an extension or change of status through USCIS. For how long must my passport be valid?

For an extension of status, USCIS simply requires that the applicant have a valid passport at the time the application is filed (8 CFR 214.1(a)(3)). The applicant must agree to maintain the validity of their passport, but there is otherwise no requirement that the passport be valid for a certain period after the application. (See 8 CFR 214.1(a)(3)(i)). Nonetheless, there may be a risk that USCIS will issue the I-94 for a period limited to the passport’s validity period, a practice that is also common with consular and CBP practice. As a result, although USCIS may issue the I-94 for the full visa validity period in spite of the passport’s validity period, there is a possibility that USCIS will limit the I-94 to the passport’s validity period.

What is the general recommendation?

Since it is typically straightforward to renew one’s passport, the general recommendation is to ensure that your passport is valid for the entire duration of your intended stay in the U.S. This will help mitigate any risk that the government officer will raise concerns about your passport’s validity period, and will show that you have a real intention to depart the U.S. at the end of your stay. If this is not possible, possessing a passport that is valid for at least 6 months from the date of entry will generally be sufficient to permit entry to the U.S. (unless you are from a country that does not appear on the list at 9 FAM 403.9-3(B)(2)(f) (here), in which case an extended passport validity period may be required). If you leave the U.S. with a valid visa in your old passport and renew your passport while outside the U.S., you may continue to use the unexpired and valid U.S. visa if it is a multiple entry visa and you bring with you both the expired passport and the new, valid passport. 22 CFR 41.112(b)(3).

As noted before, it is the validity period of the I-94 – not the visa validity period – that determines whether a nonimmigrant has overstayed and accrued unlawful presence. We recommend that, with each visit, you download and confirm your I-94 at https://i94.cbp.dhs.gov.

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