Frequently Asked Questions

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The I-94 has now been automated and can be retrieved online at Previously, an I-94 was a white card placed in your passport upon entering the United States.

An I-94 is an arrival and departure record. It determines how long you can stay in the U.S. Your I-94 expiration date and not the expiration date on your visa sticker (which is glued to a page of your passport) determines how long you can stay in the U.S. Some of you will have an expiration date on your I-94 and others will have D/S or Duration of Status in place of an expiration date. If your I-94 has an expiration date and you want/need to stay beyond the expiration date, you must file for an extension, file for a change of status or file for adjustment of status (under certain circumstances) before the expiration date on your I-94. If your I-94 has expired before you file any of the above and you have not left the U.S., you will be “out of status.”

Out of Status

If you are out of status, you are no longer authorized to be in the country. If you have an expiration date on your I-94 and you are out of status, you may incur “unlawful presence” each day beyond that expiration date.

Unlawful Presence

If you’re out of status and you continue to stay in the U.S. for 180 days, as soon as you leave the U.S., you will not be able to reenter for 3 years. If you stay for 365 days, as soon as you leave the U.S., you will not be able to reenter for 10 years. This is known as the 3 and 10 year bar to reentry. You may be able to file a successful waiver of the 3 and 10 year bar under certain circumstances should you find yourself in this situation, but that is beyond the scope of this FAQ. If you don’t have an expiration date on your I-94 but instead have D/S, you are authorized to stay in the U.S. so long as you are maintaining your status by pursuing your studies, training, etc. However, you can still fall out of status and begin to incur unlawful presence for any number of reasons should you fail to maintain your status; for example, you stop attending classes without approval or you work without authorization, etc.

Change of Status

Generally, people who become out of status cannot extend their stay, change their status, or even under certain circumstances, adjust their status. However, there are exceptions to the rule. Further, your situation may be ripe for a nunc pro tunc request. Contact us to discuss your options.

A change of status is a request to go from one nonimmigrant status to another nonimmigrant status. For example, let’s say you’re a non-immigrant in the U.S. in F-1 student status and want to change to H-1B worker status. You may be able to change your status from F-1 to H-1B. You must be in the U.S. to successfully change your status.

Extension of Stay

Simply put, this is a request to allow you to remain in the country for longer than you were initially approved for. For example, let’s say you’re in the U.S. in B-2 tourist visa status and need to stay beyond the expiration date on your I-94. You may request an extension. You must be physically in the U.S. to successfully extend your stay.

Permanent Residence

This is a request to go from nonimmigrant status to immigrant status. For example, if you’re a nonimmigrant in the U.S. as an F-1 student, but now married a U.S. citizen, you might file for an adjustment of status to lawful permanent resident status (a.k.a. “Green Card”).

The government uses a “priority date” to determine a foreign national’s place in a queue for an immigrant visa. Unless the foreign national is an immediate relative, their priority date will determine when they may apply to immigrate to the United States. There are a limited number of green cards that can be issued in any given year for foreign nationals who are not immediate relatives of U.S. citizens: 226,000 for family-based petitions and 140,000 for employment-based petitions. Therefore, the government uses a priority date to place people in the waiting queue. For family-based immigration, certain self-petitioners, some employment-based immigrants and certain investors, the priority date is the date the USCIS receives a properly filed immigrant petition. For other employment-based immigrants, the priority date depends upon whether a labor certification (PERM) was required or not. Where a PERM is required, the priority date is set on the day the PERM is with the U.S. Department of Labor. When a PERM is not required, the priority date is set on the day USCIS accepts a properly filed I-140 petition for processing. The U.S. Department of State publishes a visa bulletin every month stating which priority dates they will be processing in the coming month for permanent residence. Foreign nationals waiting in line may check the visa bulletin to find out where they are in the queue.

Where a foreign national was born can determine when that person may seek to immigrate to the United States. The priority date issued to the foreign national along with where the foreign national was born will determine where the person is in the queue in their quest to seek permanent residence. In an attempt to be fair, Congress wanted the annual allotment of green cards to be equally shared amongst all countries. Some countries have far more nationals who pursue immigration to the U.S. than other countries. For example, immigration demand from India, Mexico, China and Philippines are greater than the number of green cards available to those countries. In turn, immigration for a foreign national from those countries can take many years more than if the foreign national was born in a country that was not oversubscribed. Generally, a foreign national who seeks to immigrate to the United States is subject to the country they were born in and therefore the numerical limitation on annual immigration for that specific country, even if they no longer live in that country. Cross-chargeability is an exception to the above rule that may allow a foreign national, in certain limited cases, to use the country of birth of their spouse or parent in order to legally circumvent the numerical limitation on the foreign national’s actual country of birth.

A derivative beneficiary is not the foreign national a petition was initially filed on behalf of, but the derivative may still be able to benefit and immigrate along with or after the principal beneficiary based on a spousal or parental relationship.

Maybe. We would need to evaluate your case to see if priority date retention applies in your case. Generally, certain petitions may be eligible to have a previously issued priority date assigned to them in cases where both petitions were filed by the same petitioner for the same beneficiary, and approved, but not revoked or used.

When a petitioner dies, the I-130 petition filed by the petitioner on your behalf is automatically revoked, except in the case of a widow(er) of a United States Citizen (USC). For a widow(er) of a USC, the I-130 is automatically converted to an I-360 widow(er) petition upon the death of the USC spouse. For others, the I-130 is revoked upon the petitioner’s death and immigration under the revoked I-130 petition requires a request for and approval of humanitarian reinstatement by USCIS. We would need to assess your case to determine whether or not any remedies exist under the law with your particular facts and circumstances.

Congress created the Child Status Protection Act (CSPA) to prevent certain children who were under 21 years of age when an immigrant petition was filed from losing immigration benefits as a child when becoming 21 years or older. If CSPA applies to a particular foreign national, the person will be considered a child for immigration purposes even if the person is now at least 21 years of age. CSPA requires performing a calculation that subtracts the number of days/years the USCIS took to approve the immigrant petition from the foreign national’s age at the time a visa number first became available. If the resulting age is under 21 years, then the person would be considered a child for immigration purposes.