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Change in Automatic Visa Revalidation Creates Risk for Third Country Nationals Traveling to a US Consulate in Canada or Mexico to Apply for a Visa
by George N. Lester

The United States Department of State has promulgated a significant change, effective April 1, 2002, in the rules governing "automatic revalidation" of expired visas for nonimmigrant aliens returning from short visits to North American countries. The change excludes from the benefit of automatic visa revalidation aliens who apply for a new U.S. visa during such visits and nationals of certain countries the State Department identifies as state sponsors of terrorism.

The current rule, found in the Code of Federal Regulations at 22 CFR 42.112(d), provides for "automatic revalidation" of nonimmigrant visas for aliens who have been out of the United States for less than 30 days in contiguous territory (i.e. Canada or Mexico) and have an Arrival-Departure Record (form I-94) showing INS approval of an unexpired period of admission. Such aliens may be applying for readmission in the same classification or in a new classification authorized by the INS prior to their departure. In the latter case, the revalidation includes a change to the new classification. In the case of qualified students (F-1) or exchange visitors (J-1), the benefit of automatic revalidation also covers travel to "adjacent islands" other than Cuba.

It is common that a foreign national may be in the U.S. in a lawful nonimmigrant status, but with the visa in the passport that the person used to enter the U.S. no longer valid. This arises when the person's status has been extended or changed in the U.S. as a result of a petition or application filing with the INS, or when the person's initial visa was issued only for limited entries or a limited period shorter than the total stay authorized in the particular nonimmigrant status, such as is usually the case for nationals of the People's Republic of China.

What "automatic revalidation" means is that such persons may travel to Canada or Mexico (or also, in the case of students or exchange visitors, adjacent islands other than Cuba) for 30 days or less, and return to the U.S. presenting simply the "I-94 card" showing an unexpired period of authorized stay in the U.S., along with proof of continued lawful maintenance of the status, such as proper employment in an H-1B or L-1 job. In the case of someone whose status was extended or changed in the U.S. by INS this will be part of the Approval Notice issued in response to the petition or application. For F-1 students or J-1 exchange visitors, the I-94 card typically states only "Duration of Status" (D/S) and must be accompanied by documentation from the school or exchange program sponsor showing continued enrollment or program participation.

Often such persons in fact want to apply for a visa in the new or extended status to be entered in their passports while making a short visit to Canada or Mexico, and make plans to do so at a U.S. consulate in one of those countries through a special appointment system as "third country nationals." With the availability of automatic revalidation upon returning to the U.S., this strategy has been seen as relatively low-risk. In the event of a delay in processing or refusal of the visa application, the person would normally be able to re-enter the U.S. with the still-valid I-94 card.

Under the change becoming effective April 1, however, persons traveling to apply for a visa at a U.S. consulate in Canada or Mexico will not be readmitted to the US with the I-94 under automatic revalidation in the event the visa is refused or there are processing delays for security check or other investigation. Instead they will be required to reenter the US in another status (which may not be an available option for most persons), wait in Canada or Mexico, or depart for the home country and reapply at a U.S. consulate there.

The State Department says it is imposing this change due to the need for greater security screening of visa applicants. The intention is that in the event visa issuance is delayed while such an investigation is undertaken, the person should be restricted in the ability to return to the U.S. until after the completion of all such checks.

This change means that traveling to Canada or Mexico for a visa application will now carry more risk of inconvenience, delay, or inability to return to the U.S. At minimum, it means that visa applicants must be careful to follow all of the instructions provided when making the visa appointment and thoroughly prepare the documents needed for the process.

For temporary workers in H, L, O, P, E or I nonimmigrant status who have previously been issued a visa in such status and who simply need a visa extension, visa revalidation by mail to the State Department in the U.S. continues to be available, and will likely become more popular. Details on that process can be found at http://travel.state.gov/revals.html.

Going forward, it will be interesting to observe whether Citizenship and Immigration Canada institutes any changes in its policies for issuance of visitor visas to Canada in response to the U.S. change in the automatic revalidation rule. In the past, they have regularly issued visas to "third country nationals" with a valid I-94 in the U.S. planning to travel to Canada for a U.S. visa appointment, because the valid I-94 provided assurance that whatever happened in the visa appointment the person would be able to depart Canada and return to the U.S. It is possible they will now restrict or cease issuance of Canadian visitor visas to such persons because of the increased risk they will end up "stuck" in Canada. If that happens then the visa application procedure at US consulates in Canada will largely be available only to nationals of countries that are exempt from needing a visa to enter Canada. A list of which countries' citizens are visa exempt to Canada and which are not can be found at http://www.cic.gc.ca/english/visit/visas_e.html - exemptions.

The new rule also prohibits nationals of countries the State Department identifies as sponsors of terrorism from using automatic visa revalidation in any circumstances. At present, the list of countries so designated consists of Iraq, Iran, Syria, Libya, Sudan, North Korea, and Cuba. Thus, nationals of these countries will be required to have a valid visa in their passports to enter the U.S. at any time, regardless of how long they had spent out of the U.S. or where they had traveled.

For foreign nationals not applying for a U.S. visa in Canada or Mexico and not from one of the designated state sponsor of terrorism countries, automatic visa revalidation will continue to be available in the manner described above, allowing eligible nonimmigrants to undertake short travel for business or pleasure within North America using a valid I-94 card for readmission to the U.S.

Click here to read the full Notice from the State Department as published in the Federal Register.


About The Author

George N. Lester, IV

EXPERIENCE

  • Represents U.S. employers seeking to hire foreign professionals, scientists, business persons and artists;
  • Represents foreign individuals applying for appropriate status to live and work in U.S.
  • Represents clients in all steps of processes necessary for non–residents to obtain temporary or permanent immigration status in U.S. before the
    • Immigration and Naturalization Service
    • Department of Labor
    • State Department
    • United States Information Agency
    • All other Relevant Agencies.
  • Prepares immigration related petitions and applications in the U.S., and assists with visa application procedures at U.S. consulates abroad
  • Represents companies of all sizes, from start–ups to established multinationals, and has worked with employers and aliens in a broad variety of high tech, scientific, manufacturing, academic and other fields.
  • Files petitions for “H–1B” temporary professional workers and “L–1” intracompany transferees, and related “labor certification” and permanent residence matters.
  • Works with employers having large numbers of foreign national employees to develop cost efficient, effective strategies for high volume processing of immigration petitions and applications.
  • Particularly successful in complex matters involving temporary and permanent classification for “aliens of extraordinary ability” and “outstanding researchers,” the “national interest waiver” of labor certification and waiver of the 2–year home country residence requirement for “J–1” exchange visitors.
  • Successfully represented foreign musical artists seeking to tour the U.S. in concert and persons who have fled persecution in their home countries to seek political asylum in the U.S.
  • Extensive prior experience in commercial litigation.
EDUCATION
Dartmouth College, B.A. History and Economics (1980)

Northeastern University School of Law, J.D. (1989)

BAR AND COURT ADMISSIONS
Supreme Judicial Court of Massachusetts

United States District Court for the District of Massachusetts

United States Court of Appeals for the First Circuit



PROFESSIONAL INVOLVEMENT
  • Active member of the American Immigration Lawyers Association at national and local level
  • Regularly speaks to business and academic groups on immigration issues
COMMUNITY INVOLVEMENT
  • Serves as Treasurer and as Board Member of the Political Asylum/Immigration Representation Project (PAIR), a nonprofit organization which coordinates pro bono representation among major Boston law firms in political asylum and related matters
  • Elected member of Planning Board of Town of Medfield, Massachusetts
  • Former Board member, Treasurer and Secretary of Eastern New England Council of American Youth Hostels, Inc.
HONORS
  • Pro Bono Attorney Award, for Dedication and Commitment to Human Rights, Political Asylum/Immigration Representation Project, May 1996
RECENT SPEECHES AND CONFERENCES
  • Featured Lecturer, “Permanent Residency and The Labor Certification Process,” American Immigration Lawyers Association (AILA) Immigration Law Basics Conference, March 3, 2000, Boston Massachusetts
  • Featured Lecturer, “Employment-Based Immigrant Visas - Labor Certification,” Mass. Continuing Legal Education  (MCLE) Immigration Law Basics Seminar, January 23, 2001, Boston, Massachusetts
RECENT PUBLICATIONS
  • Lead author, Chapter 4, “Specialty Occupation Professionals” (a detailed discussion of the H-B program), Business Immigration Law:  Strategies for Employing Foreign Nationals, Law Journal Press, New York, New York, 2000.
  • Author, "Section 10: The Labor Certification Process, A Step by Step Practical Outline," Immigration Law Primer, Massachusetts Continuing Legal Education, Boston, Massachusetts, January 2001.


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