After many years of legal practice, one fact that never seems to stop amaze me is how poorly our immigration system is in properly informing foreign nationals about their legal rights and obligations in the United States. This article addresses legal distinctions between a visa and an I-94 and provide information relating to the penalties that a foreign national would face if s/he becomes out of status in the United States. The immigration law requires all foreign nationals to strictly comply with their respective immigration status with which they were given at the time of their most recent entry. Failure to comply with the terms and conditions of the stay carries serious consequences that may affect one's future eligibility to return to the United States.

It is important to note that one's legal stay in the United States is NOT based on the validity of the visa. Rather, one's legal stay is governed by the validity of the I-94 that s/he would receive at the time of entry.

Generally, most foreign nationals who wish to enter the United States for nonimmigrant purposes must first apply for a nonimmigrant visa with an American consulate abroad. The purpose of visa application is for the State Department to review the underlying claim presented by the applicant and to run various background checks to make sure that the applicant does not present any national security threat to the United States before a visa can be issued. Once the visa is issued, foreign national would have the permission to travel to the U.S. border.

Upon arriving at the U.S. border, all foreign nationals must be inspected by the Customs and Border Patrol (CBP), a division of Department of Homeland Security. The CBP, at the inspection station, would examine the nature and the intent of the visa holder's visit. The CBP has the sole discretion to grant or deny one's admission to the U.S. If the CBP grants the admission, it will endorse its authorization on a Form I-94 (Arrival and Departure Record), which contains the visa type of immigration status and the expiration of the stay, if any. Once in the United States, I-94, not the visa itself, is the only legal document that verifies a foreign national's legal status in the United States.

As long as the I-94 has not expired and the foreign national has not done anything to invalidate his/her nonimmigrant status, in most cases, s/he may file an I-539 application with the CIS to change and/or extend the present nonimmigrant status. If the I-94 has already expired, the CIS generally would deny the I-539 application. There are exceptions, however. If the foreign national could show that the reason that s/he is out of status was for reason(s) beyond his/her control, that s/he had not engaged unauthorized employment, and that s/he had not violated other immigration provisions, then the CIS, in its discretion, may approve the application.

Bear in mind that one's legal status in the United States is controlled by the most recent I-94 that the foreign national has been given by the CBP (or CIS, if the alien files for an extension/change of status request). For those individuals who travel quite extensively, they must pay close attention to the I-94. The CBP may issue I-94 that is only valid to the expiration of the foreign national's passport, or what the law permits the CBP to give, whichever is shorter.

Paying close attention on the expiration of I-94 is the first step in maintaining legal status in the United States. If the I-94 expires, the foreign national would be deemed out of status and therefore would begin to accrue "unlawful presence" in the United States. The law states that if an alien has accrued at least 180 days of unlawful presence, and then departs from the United States thereafter, the alien is barred from coming to the United States for three years. If the alien departs from the United States after accruing at least one year of unlawful presence, the bar is ten years. This is the infamous three and ten year bar.

If you have any questions about your immigration situation, please contact an experienced immigration attorney.