What is a visa?

Sunday, January 19th, 2014
By: Jonathan MontagJ.D.

A basic term and a basic benefit in immigration law is a visa. Curiously, the most misunderstood item in all of immigration law may well be “visa.” To illustrate, the following scenarios have occurred in immigration court:

1. An alien in removal proceedings is charged with removability because the Department of State canceled his visa.

2. An alien in removal proceedings lacking lawful status has a fiancé visa petition (K-1) approved by a USCIS Service Center and seeks that removal proceedings be terminated.

Is having a visa canceled by the State Department a valid removability charge? NO
Is having a fiancé petition approved a status that merits terminating removal proceedings? NO

In both cases, government officials, because of a lack of understanding of what a visa is, made mistakes, or at least what seems to me to be mistakes, in removal proceedings.

Here are some other scenarios:

3. A person is granted a visa to enter the United States as a tourist good for ten years. The tourist assumes that because the visa is good for ten years, he can stay for ten years. Can he? NO.

4. A person comes to the border with a visa set to expire in one month. The border official cannot admit the person for a period beyond one month. Is this right? NO.

In these cases, as well, the assumptions of the applicants for admission about what a visa is is all wrong.

Here’s why.

A visa is a document allowing a person to enter the United States. See, generally, Title II, Chapter 3 of the Immigration and Nationality Act entitled, “Issuance of Entry Documents,” beginning at INA § 221. The validity period only dictates the time when an application for admission must be made. It is unrelated to the period of admission granted by USCIS upon arrival. According to 9 FAM 41.112, N.1   (the law and policy handbook for consular officers):

a. A visa is not the same as immigration status. Many travelers confuse the two. A visa does not entitle the bearer to enter or remain in the United States.

b. The validity of a visa refers to the time in which an applicant may make application to an immigration officer at a port of entry for admittance into the United States. It has no bearing on the length of time for which the alien may be admitted. For example, an alien whose B-1 visa may expire a month after entry into the United States, could be admitted by a Department of Homeland Security (DHS) officer at a port of entry (POE) for a stay of up to one year. On the other hand, an alien whose B-1 visa has a validity of one year may be granted a stay of only one  month, as may be determined by a DHS official at a port of entry.

The visa does not provide status in the United States, it simply is a condition precedent to admission. It is the officer at the Port of Entry or in the cases of a change or extension of status, a USCIS officer, who designates a period of authorized stay or concludes that admission is not warranted. If a visa conveyed status, then a border inspector would have no role in determining a period of stay or denying admission. See, INA § 221(h). At INA § 221(i) revocation of visas by the State Department discusses the impact on transportation companies and not the effect on status in the United States.

Once an alien is admitted to the United States, the status conferred is not revocable by the State Department. Take, for example, students. Regulations for student visas describe when a student falls out of status. For example, falling below a full course load, 8 CFR § 214.2(f)(6)(iii), or lengthy absences from the United States, 8 CFR § 214.2(f)(4). Working without authorization renders a student out of status and subject to removal through removal proceedings. 8 CFR § 214.1(e); Matter of Yazdani. It is USCIS, ICE, and the immigration court that determine these things — not the State Department and not by canceling a visa.

Further, an alien with an expired visa who is in the United States can extend of change status provided that his period of authorized stay has not expired. INA § 248. This is yet another indicator that the visa is nothing more than a “get into the U.S. card” and is not a provider of status in the United States. Finally, aliens can enter the United States with expired visas under certain circumstances. This is referred to as “automatic revalidation.” 8 CFR § 214.1(b); 22 CFR § 41.112. Some aliens under some circumstances are visa exempt. See, inter alia,  22 CFR §§ 41.1; 41.2(b); 41.2(m), still more proof that a visa is not the determinant of status.

Finally, at INA § 221(c), the Act states an immigrant visa (permanent resident visa) shall be valid for such period, not exceeding six months, as shall be by regulations prescribed…. This cannot mean that an immigrant’s period of authorized stay is only six months as an immigrant is a “permanent” resident. Rather, it means that when a Consulate issues a visa to enter the United States, the entry must be accomplished within six months.

So where does the confusion come from? I think there are a few reasons:

1. Most people are inspected by government officials only at two times – when they are applying for a visa and when they seek entry to the United States at an airport of land or sea port of entry. When applying for the visa, it is getting the visa that is all-important. When seeking admission to the United States, in most cases it is the visa that the inspector is most interested in. So, in most cases, the visa seems all-important. This observation about the importance of a visa continues even after admission.

2. The status of permanent resident is evidenced by a permanent resident card, commonly referred to as a green card. The green card is proof of lawful status in the United States. It is also used as a visa to get into the United States. Because the green card has two uses – proof of status in the United States and as a visa to enter the United States – people conflate the meaning of “visa” to be definitive proof of status in the United States.

3. Movies and the popular media have historically conflated proof of status with the word visa and this common misconception prevails, even among seasoned immigration officials. Asking someone, “So what kind of visa are you here under?” really is a question about how a person entered the United States and not necessarily what his current status is. A person may have entered as a tourist but is now without status for violating the terms of the tourist visa or overstaying the period of stay or may have changed status but never left the United States to obtain a new visa in the new status.

Now, let’s return to the four scenarios.

1. In the case of the alien whose visa was canceled by the State Department, his status and period of stay was determined by a Customs and Border Protection officer at the port of entry. The State Department does not control the person’s status as long as the person remains in the United States. Once in the United States, USCIS, ICE, or an immigration judge can make determinations about whether the status remains valid. The State Department has no role. Of course, should the person leave the United States and seek re-admission, then the issue of a canceled visa is very important as the person now lacks the get-into-the U.S. visa.

2. In the case of an out-of-status alien whose fiancé petition is approved, all that happened was that USCIS determined that the person is a United States citizen’s fiancé. The person has not applied for a status and none was conveyed. There is no mechanism to change status to a fiancé within the United States and consequently none was granted. In fact, the alien does not file the fiancé petition, the U.S. citizen fiancee files the petition. Only if the person departs the United States, goes to a Consulate and gets a visa, and then accomplishes entry to the United States, does the person have a status.

3. As for the tourist with a ten-year visa, all the ten-year visa means is that the alien has permission to seek entry to the United States multiple times over a ten year period. Whether he will actually be admitted and for how long he will be admitted is a decision for the officer at the border to determine. If the officer decides that the person should be admitted for one month (rather than the usual six months), that is how long the person can enter for – certainly not for ten years. If a person stays in the United States for the authorized period of stay and departs the United States and seeks re-admission right away, if a CBP officer concludes that the lengthy and repeated stays indicate that the person is not acting as a visitor but as a person who is living or intends to live in the United States, the officer can deny the person admission – visa or no visa.

4. Finally, a person whose visa is expiring can be admitted for a period beyond the expiration of the visa. The expiration only means that the period when a person can enter is expiring. How long the person can stay for is a determination that can be – but not always so be careful – independent of when the visa expires. As noted, a permanent resident visa issued at a Consulate is supposed to be good for six months, yet a permanent resident is admitted permanently as long as he does not violate the terms of the immigrant visa.

Now you know more about visas than many experts. January 19, 2014.


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