When a foreign national has differing expiration dates on their US immigration documents, it is important to know which expiration date controls in order to determine when an extension of status is needed.
I-797 Notice of Action
US Citizenship and Immigration Services (USCIS) issues an I-797 Notice of Action when a non-immigrant petition or application is approved. The I-797 form reflects the visa classification (H-1B, L-1A, etc.) the foreign national has been approved for and the validity period for the non-immigrant status authorized by USCIS. In cases where the relevant USCIS petition was approved as a change of status or extension of status, the I-797 Notice of Action will also contain an I-94 in the lower right corner.
Visa Stamp
In order to enter the US in a non-immigrant status a foreign national must obtain a visa stamp at a US Consulate abroad and be prepared to present it to the inspecting US Customs and Border Protection (CBP) officer at the US port of entry (with the exception of Canadians who are not required to obtain visa stamps for most non-immigrant categories). After reviewing a foreign national’s documentation, including the I-797 mentioned above, the US Consulate will insert a visa stamp in the foreign national’s passport.
Why might the I-797 approval notice validity be different from the visa validity?
The visa stamp expiration date is typically the same date as the expiration date on the I-797, but there are exceptions. The visa stamp validity period will be different from the I-797 in the following circumstances:
- If there is a visa reciprocity agreement between the US and the foreign national’s country of citizenship, which establishes a different validity period. For instance, pursuant to the current visa reciprocity agreement, H-1B visas issued to Chinese nationals will be limited to a one-year validity, and L-1 visas issued to French nationals will be limited to 17 months, regardless of the I-797 expiration.
- In rare cases, the US Consular Officer may limit the visa validity in their discretion, regardless of the I-797 expiration or the visa reciprocity agreement, for myriad reasons (e.g., national security considerations).
Prior to traveling internationally, foreign nationals should check the expiration date on their visa stamp as they will not be able to re-enter the US if they do not have a valid visa stamp (with the exception of certain travelers to Canada and Mexico—see Automatic Visa Revalidation below).
In many cases, the visa stamp will have two different expiration dates: an expiration date listed adjacent to the issue date, and PED in the lower right corner. In such cases, the visa stamp remains valid until the issue date, but a new petition to extend the I-797 must be approved by USCIS for that visa to be used after the listed PED expiration. Please see below for additional information regarding the significance of the PED.
What happens if a visa is expired in passport but the foreign national has a valid I-797
If a foreign national’s visa has expired but they have a valid I-797 Notice of Action, here is what it means:
- Most foreign nationals will be able to legally remain in the US as long as their most recently issued I-94 has not expired.
- Because a valid visa is required for re-entry, most foreign nationals travelling outside the US would need to apply for a new visa at a US consulate prior to returning.
- Individuals undertaking short trips (30 days or less) to Canada, Mexico, and for those in F or J visa status, some North American islands, can re-enter the US with an expired visa under the Automatic Visa Revalidation provision, as long as their I-94 has not expired.
In all cases, it is the foreign national’s I-94, not their visa, that controls their ability to remain in the US legally.
What is the significance of the PED on a visa stamp?
The Petition Expiration Date (PED) listed on a visa stamp generally reflects the I-797 expiration date and the final date on which a foreign national can enter the US using that visa without a new I-797. While the PED is typically the same as the visa stamp’s expiration date, this is not always the case.
L-1A and L-1B non-immigrants for example, are often issued visa stamps valid for five years even though their I-797 may only be valid for three or even two years. The PED listed on the visa stamp will correspond with the (shorter) L-1 expiration date on the I-797. To re-enter the US after the PED, the L-1 foreign national will need to present their visa stamp and a new I-797 reflecting an extension of L-1 status beyond the original PED.
PED example:
A foreign national was issued an I-797 authorizing L-1A status from October 1, 2023, to September 30, 2026, by USCIS. The foreign national obtained a visa stamp from the US Consulate in her home country, which is valid from October 1, 2023, to September 30, 2028 (the full five years allowed) and reflects a PED of September 30, 2026 (the period authorized on the I-797). The foreign national enters the US and is issued an I-94 that is valid until September 30, 2026.
Prior to September 30, 2026, the foreign national is issued a new I-797 reflecting the extension of her L-1A status until September 30, 2028. Between October 1, 2026, and September 30, 2028, the foreign national can re-enter the US by presenting the visa stamp with the expiration date of September 30, 2028 (and PED of September 30, 2026) and her new I-797 authorizing L-1A status until September 30, 2028. The foreign national will be issued an I-94 to September 30, 2028.
What is the significance of the I-94 form expiration date?
The I-94 expiration date is the “controlling” expiration date for immigration purposes and determines how long a foreign national can legally remain in the US.
Upon a foreign national’s entry to the US in a non-immigrant status, CBP creates or updates the foreign national’s I-94 record. CBP began issuing electronic I-94 records several years ago (replacing the small white cards that were previously stapled into a passport). The electronic I-94 record should be downloaded from CBP’s website after each entry into the US.
If an I-94 is issued incorrectly by CBP, the foreign national must take the necessary steps to correct his or her I-94 immediately. Incorrect I-94 records can have very serious consequences for a foreign national’s status in the US. The most common errors tend to be I-94s issued with abbreviated authorized periods of stay and I-94s issued for the wrong non-immigrant status. Importantly, CBP will often limit the I-94 expiration to the foreign national’s passport expiration date, regardless of the foreign national’s visa or I-797 expiration date. CBP does not consider this to be an error, and the shortened I-94 expiration is the controlling date for purposes of remaining in a lawful immigration status.
If a foreign national is unaware of an I-94 error, he or she may inadvertently overstay his or her period of authorized stay. Overstays and unauthorized employment can have serious consequences down the road including triggering bars to returning to the US for 3 or 10 years, rendering the foreign national ineligible for future visas or other immigration benefits.
As previously mentioned, in cases where the relevant USCIS petition was approved as a change of status or extension of status, the I-797 Notice of Action will also contain an I-94 in the lower right corner. This I-94 arguably controls a foreign national’s status in the US until such time as a new I-94 is issued by CBP, as noted in the example below.
I-94 error example:
A foreign national was issued an I-797 authorizing H-1B status from October 1, 2023, to September 30, 2026, by USCIS. The foreign national obtained a visa stamp from the US Consulate in her home country, which is valid from October 1, 2023, to September 30, 2026, and reflects a PED of September 30, 2026. The foreign national enters the US and is issued an I-94 by CBP that is valid only until June 30, 2026. If her I-94 is not corrected, she is only authorized to remain and work in the US until June 30, 2026 (not until September 30, 2026).