Visa or status? How the I-94 decides how long you can stay in the US

Petition, visa, admission and status are four different things

People often use "visa" for all of these. The law treats them as separate steps, decided by different officials at different times:

• Petition: for many work routes, a petitioner (usually the employer, or a US agent for O-1) first files a petition with US Citizenship and Immigration Services (USCIS). Form I-129 is used for workers such as H-1B, L-1 and O-1, and to request an extension of stay in, or change of status to, E-1, E-2, E-3, H-1B1 or TN. An approved petition is a USCIS decision on the classification. It is not a visa.
• Visa: a consular officer at a US embassy or consulate issues it. By statute a nonimmigrant visa states the classification and the period during which the visa itself is valid, and it is evidenced by a stamp or similar placement in the passport.
• Admission: at a port of entry, a CBP officer decides whether to admit you. A visa does not entitle anyone to be admitted if they are found inadmissible on arrival.
• Status: once admitted, you hold a nonimmigrant status (O-1, E-2, B-2 and so on) for the period CBP granted, recorded on Form I-94, Arrival/Departure Record, or noted in the passport or travel document.

Sources: Form I-129 page: Form I-94 validity; INA 221(a)(1)(B), (c)(2) and (h), 8 U.S.C. 1201; INA 222(e), 8 U.S.C. 1202(e)

What the I-94 records

The I-94 shows your class of admission and the date your authorized stay ends. USCIS points to that date, not the visa date: an application to extend or change status on Form I-539 must be filed before the expiration date shown on the admission stamp or Form I-94.

The I-94 period does not simply copy the petition or the visa. Two examples from the regulations:

• O-1: a beneficiary may be admitted for the validity period of the petition, plus up to 10 days before it begins and 10 days after it ends, but may work only during the petition's validity period.
• E-1 and E-2: a treaty trader or treaty investor may be admitted for an initial period of not more than 2 years, and extensions of stay may be granted in increments of not more than 2 years. The visa's own validity is set separately, on a reciprocal basis with the applicant's country.

Sources: Form I-539 page: when to file; 8 CFR 214.2(o)(10); 8 CFR 214.2(e)(19) and (20); INA 221(a)(1)(B), (c)(2) and (h), 8 U.S.C. 1201

When the I-94 ends before the petition does

USCIS says that if the I-94 expiration date is earlier than the end of the I-129 validity period shown on Form I-797, Notice of Action, one of three things must happen before the I-94 date: the petitioner files an extension of stay on Form I-129, the beneficiary applies for some other benefit that would allow them to remain, or the beneficiary departs.

For E-2, USCIS says a treaty investor or employee who travels abroad will generally be granted an automatic two-year period of readmission on return. That new period is recorded at the new admission, so the latest I-94 is the one that counts.

Sources: Form I-129 page: Form I-94 validity; E-2 Treaty Investors page: family of E-2 treaty investors and employees

What happens when the visa expires but your stay has not?

The statute ties the visa requirement to the moment you apply for admission: a nonimmigrant who does not hold a valid nonimmigrant visa or border crossing card at that time is inadmissible, unless a waiver or exemption applies, such as the Visa Waiver Program for visitors. Once you are admitted, the deadlines USCIS applies run from the I-94. The State Department's regulation says the period of visa validity has no relation to the period of stay that immigration authorities at the port of entry authorize. So a visa that expires during an authorized stay does not by itself shorten the stay.

The expired visa matters at the next entry. To return after a trip abroad in that classification, you generally need a valid visa again, which means applying to a consular officer. USCIS grants extensions and changes of status inside the United States; it does not issue visas. USCIS also notes that in some cases an officer may decide you should obtain a new visa before being readmitted. A narrow exception, automatic revalidation, lets an expired visa be treated as extended for certain readmissions by people holding an unexpired I-94, subject to conditions in the regulation.

Sources: INA 212(a)(7)(B)(i), 8 U.S.C. 1182(a)(7)(B)(i); 22 CFR 41.112(a) and (d); Form I-539 page: when to file; INA 221(a)(1)(B), (c)(2) and (h), 8 U.S.C. 1201

What happens when the I-94 date passes?

USCIS says that if your status expired before you filed to extend or change it, or you otherwise violated its terms, for example by working without authorization, you are out of status. It cannot then change your status except in limited circumstances beyond your control, and staying longer than your admission may affect your ability to obtain other benefits or return later. A late filing may be excused only if the delay was caused by extraordinary circumstances beyond your control, was reasonable in length, you have not otherwise violated status, you are still a bona fide nonimmigrant and you are not in removal proceedings.

Unlawful presence has its own consequences. The statute counts someone as unlawfully present if they remain after the period of stay authorized has expired. A person unlawfully present for more than 180 days but less than one year who leaves voluntarily before removal proceedings begin is inadmissible for 3 years from departure, and one year or more leads to a 10-year bar, subject to the exceptions and waivers in the statute.

A visa can also be voided under section 222(g) of the Immigration and Nationality Act (INA). That section's text was not among the sources checked for this guide, but the State Department's regulation says that a person whose prior nonimmigrant visa was voided under it must apply for a new one at a consular office in their country of nationality, unless extraordinary circumstances are found. Convenience and cost do not count as extraordinary.

Sources: Form I-539 page: when to file; INA 212(a)(9)(B), 8 U.S.C. 1182(a)(9)(B); 22 CFR 41.101(b) and (d)

How to check your I-94

Look at the record from your most recent admission, not an older one. CBP may record the period of stay on Form I-94 or note it in the passport or travel document. CBP's online I-94 lookup was not among the sources checked for this guide; use CBP's official site to retrieve the record. When you have it, check:

• The class of admission. For example, USCIS and CBP have issued I-94s with an E-2S code to certain spouses of E-2 workers since 30 January 2022, and USCIS treats an unexpired I-94 with that code as evidence of work authorization.
• The admit-until date, compared with the petition validity on the I-797 for petition-based workers.
• Each family member's own record. Every person has their own admission and their own date.

Sources: Form I-129 page: Form I-94 validity; E-2 Treaty Investors page: family of E-2 treaty investors and employees

Family members

Dependants are admitted in their own right. Under the E regulation, the spouse and minor children of a treaty trader or investor are admitted for the period during which the principal is in valid status. But USCIS warns that when the E-2 principal is readmitted for a new two-year period, the new period does not apply to family members unless they accompany the principal or separately travel and return within the new readmission period. To remain lawfully, family members must track their own period of stay and apply for an extension before it ends.

For petition-based workers, USCIS says dependants whose stay is limited must also, before their own I-94 date, request an extension on Form I-539, apply for another benefit that lets them stay, or depart.

Sources: E-2 Treaty Investors page: family of E-2 treaty investors and employees; 8 CFR 214.2(e)(19) and (20); Form I-129 page: Form I-94 validity

Common problems

• Reading the visa expiration date as the date you must leave. The I-94 date controls the stay.
• Treating an approved petition as permission to travel. A visa is still needed where one is required, and CBP still decides admission.
• Expecting a USCIS extension to work as a visa for the next trip. An extension approved by USCIS covers the stay; a new entry generally needs a valid visa where one is required.
• Missing a family member's separate I-94 date after the principal traveled alone.
• Filing an extension after the I-94 date. Late filing is excused only in limited circumstances.

Sources: Form I-129 page: Form I-94 validity; E-2 Treaty Investors page: family of E-2 treaty investors and employees; Form I-539 page: when to file; 22 CFR 41.112(a) and (d)

How Visa Trouble can help

We can point you to official information, but we don’t assess or prepare I-94 corrections, extension requests or visa applications. Free route discovery at Visa Trouble is open to everyone and includes O-1A and the E-2 treaty investor route. O-1A application preparation is open in Visa Trouble accounts by invitation: you organize your evidence and fill your own form drafts. The rules it uses are general and still draft, and nothing is filed, signed or paid for you. We’re building application preparation for E-2 investors; it is planned, not open yet. Visa Trouble is not a law firm and does not give legal advice.

You can start free route discovery at visatrouble.com.