I-94s, Passport Stamps and Periods of Admission – The Importance of Understanding How Long you can Remain in the U.S.

Question: During a particular visit to the U.S. for work or pleasure, which of the following controls the length of time a Nonimmigrant visitor is permitted to remain in the U.S.:

A)      The validity of their U.S. Visa;

B)      The stamp that a U.S. Customs and Border Protection Officer adds to their Passport;

C)      The normal admission period for the U.S. Visa Category in which they seek admission; or

D)     Their I-94 U.S. Entry and Departure Record.

Answer: D. The period of authorized stay a business visitor or tourist can remain in the U.S. is controlled by their I-94 Entry and Departure Record within the Customs and Border Protection database. Usually, though not always, this period coincides with the stamped date in the Nonimmigrant’s passport. When the two are in conflict, the U.S. government will rely on the I-94 record.

The normal admission period for the U.S. Visa Category and the validity of the actual visa are not reliable indicators of a Nonimmigrant’s I-94 Period of Authorized Stay in the U.S. For example, although an E-2 visa holder may have a 5 year-visa in their passport, they can generally only be admitted to the U.S. for up to two years. Similarly, an E-2 visa holder with a 3-month validity can also be admitted up to the same two year maximum on any given visit to the U.S.

Nonimmigrants traveling to the U.S. should exercise the utmost caution in checking their passports and I-94s following entry to the U.S. Often, a Nonimmigrant visitor to the U.S. simply relies upon their visa validity or their understanding of the usual period of admission for their visa type, and assumes that they are being admitted for that duration at the Port of Entry. However, it is important to remember that the I-94 controls, and if the Nonimmigrant overstays the authorized I-94 period, by even one day, they are accruing unlawful presence in the U.S.

Situations in Which the Passport Stamp and I-94 Indicate a Different Date

In the past, we’ve seen cases wherein an H-1B Worker receives a stamp in their passport indicating they can depart on XX date, whereas the internal CBP records and I-94 indicate an earlier date. After expiration of the I-94, the Nonimmigrant is in the U.S. unlawfully, and accruing unlawful presence. If the error in admission is on their end, CBP will sometimes be willing to correct the I-94 record.

After April 26, 2013, CBP typically no longer issues a paper I-94, instead relying on an electronic record, which is available online. However, some individuals who undergo secondary inspection processing—including asylees, refugees, parolees, will still be provided a paper copy of Form I-94.

If you have overstayed your I-94 period of authorized stay or have questions related to properly maintaining or correcting a period of authorized U.S. admission, be sure to speak with an experienced U.S. Immigration Attorney. Nonimmigrant Travelers—especially those with widely variable admission periods, such as E-1, E-2, L-1, L-2, H-1B and H-4 status holders—need to remember to be mindful their authorized period of stay during each particular entry to the U.S.