As a general rule, foreign nationals on nonimmigrant status must have a valid unexpired visa if they wish to reenter the United States. However, there is an exception that allows a foreign national to enter the U.S. with an expired visa. Under the automatic revalidation provision of U.S. immigration law, in some cases visitors holding expired visas are permitted to travel to Canada or Mexico for short visits and then return to the U.S. even with an expired visa. This blog post describes the requirements of automatic revalidation program to reenter the U.S. using an expired visa.
The Automatic Revalidation Process – Can I Enter the U.S. with an Expired Visa if I Visit Canada or Mexico?
While most nonimmigrants are required to apply for another visa once their current visa expires, the expiration of the visa does not affect their lawful nonimmigrant status in the United States. Instead, after you enter the U.S. your status and the time you can spend in the U.S. is governed by the information on the I-94. That is, the I-94 will tell you which status you were admitted under and how long you can stay for. The key thing to note here is that the visa is just an entry document and does not govern how long one can stay in the U.S. The Contiguous Territory Rule permits most nonimmigrants to apply for reentry to the U.S. after travel to a “contiguous territory,” namely, Mexico or Canada. In this case, the expired visa is considered to be revalidated so that one can enter even with an expired visa and the applicant will be able to stay in the U.S. up to the date on their I-94. This program is not a right and one can always be denied entry by Customs and Border Patrol but if the border official is aware of the law, you should be admitted. To qualify for readmission pursuant to the Contiguous Territory Rule, the traveler must present the following documents and meet the following criteria:
- The traveler must present a current, unexpired I-94. If the individual applied for a change or extension of nonimmigrant status while in the United States, then he or she should bring the Form I797A (Notice of Action) with the valid I-94 attached. F or M visa holders must present a valid I-20 and J visa holders must present a valid DS-2019.
- A valid passport with the expired nonimmigrant visa stamp. If the nonimmigrant visa stamp is not in your current passport, you must bring both a valid passport and your expired passport with the visa stamp in it.
- To qualify for on automatic revalidation, the individual must have travelled only to Canada or Mexico. If the individual is a J or F visa holder, they may travel to Canada, Mexico, or the adjacent islands (i.e. the Caribbean except Cuba).
- The individual must return for readmission within 30 days or less to qualify for automatic revalidation.
- The individual must not have a pending or rejected application at a U.S. Consulate for a new visa or renewal of a visa. If an individual applied for a new visa or renewal (for example, if an applicant went to Canada to renew an E-2 visa and was denied) they are not eligible for this program.
If the individual meets the above criteria, CBP should though admit him or her pursuant to the Contiguous Territory Rule. The readmission should be for the same visa classification that was presented on the valid I-94. Thus, if the individual originally entered on a B-1 or B-2 visa and later changed status to E-2 and the B visa expired, he or she should be readmitted under E-2 status.
There are two main exceptions to the Automatic revalidation process. First, individuals admitted on the Visa Waiver Program are ineligible for automatic revalidation under the Contiguous Territory Rule. Second, foreign nationals who are citizens of countries declared as state sponsors of terrorism are ineligible for automatic revalidation. As of 2018, this list includes four countries: Iran, Sudan, Syria and North Korea. Lastly, this rule applies only for readmission into the United States, and individuals seeking to travel to Canada, Mexico, or the adjacent islands should ensure that they check the visa requirements of their destination.
While the Contiguous Territory Rule is codified in US immigration laws, individuals seeking to rely on this rule should expect increased scrutiny at a port of entry. It is therefore crucial that a foreign national planning on using automatic revalidation consult with a qualified immigration attorney prior to departing the country to determine if they are eligible and ensure that they have all the requisite documents in hand when submitting for reinspection.
To find out more about the new rules or other investor visas, contact Scott Legal, P.C.
Ian E. Scott, Esq. is the Founder of Scott Legal, P.C. He can be reached at 212-223-2964 or by email at firstname.lastname@example.org.
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