Understanding the Difference Between "Visa" and "Status"

The terms "visa" and "status" are often incorrectly used interchangeably, often with disastrous results.

"Visa"

A "visa" is a document that allows a person to come to a port of entry and apply for admission into the United States. Possession of a visa does not guarantee that the person will be allowed to enter. Lack of a visa almost certainly guarantees that the person will not be allowed to enter.

The duration of the validity period of a visa has nothing at all to do with the duration of stay permitted once the person enters the U.S. The validity period of a visa simply means that during that time, the person may apply for admission to the U.S. in the category specified. It does not guarantee admission or length of stay, if admitted.

The importance of a visa is that it signifies to a U.S. immigration inspector that the holder of the visa has been prescreened abroad and found eligible for admission in a particular nonimmigrant category. A visa is only valid for admission in the category for which it is issued. For example, a student who holds a visitor's visa may not use the visitor's visa to enter the U.S. to return to school. In such a case, the student would have to have a student visa. Visas are issued for many, but not all, purposes.

To use a rough metaphor, imagine a slice of Swiss cheese. Within the boundaries are all of the possible purposes one might have for visiting the U.S. The holes represent the purposes for which visas exist and the cheese represents those for which no visa exists. Obviously, there are more legitimate reasons for visiting than visa categories and not all reasons are covered by a visa category. A person seeking admission to the United States must have the right type of visa for that particular visit. Once a person enters the U.S., however, his or her visa ceases to have any significance. Visas are only used as entry documents and do not control the terms or length of one's stay after entry.

When an immigration inspector is satisfied that a visa holder has the right type of visa and intends to engage in activities which are both permitted and consistent with the limitations of that visa, the inspector will grant entry into the U.S. in a particular "status" category. Almost always, a visitor's "status" at entry is the same category as his or her "visa". The only exception would be the rare case in which the inspector waives the visa requirement and allows the person to enter.

"Status"

There are two important components within the concept of "status:" First, there is classification under which the person is admitted (i.e., student, visitor, temporary worker, etc.); and, Second, there is the duration (length) of the stay permitted.
Both of these components may be modified by the Immigration and Naturalization Service. A person admitted in one status may seek a change of status into a new classification (such as from F-1 to H-1B1). Also, the duration of a person's stay may be extended by the C.I.S.. Again, the validity period of a visa has nothing to do with the duration of a nonimmigrant visitor's permitted stay.

"Unlawful Presence" vs. "Out of Status"

A nonimmigrant visitor violates his or her status if any of the following occur:

the person remains. beyond the expiration date of the status granted;
engages in employment without specific authorization; or,
engages in an activity that is not consistent with the status in which the person was admitted. A person who violates his or her status becomes removable as of the moment the violation takes place.

If the C.I.S. becomes aware of such a violation of status they have the right to file an order to show cause re: removal against the person. If the violation of status is then proven at a removal hearing, the person will be ordered removed.

This is in contrast to the newly defined "unlawful presence" classification that resulted from the 1996 Immigration Act. Effective April 1, 1997, a person who remains. in the United States in "unlawful presence" for more than 180 days and then departs voluntarily, must remain outside the U.S. for three years before being eligible to immigrate. A person who remains. in "unlawful presence" for more than twelve months must remain outside for ten years.

The term "unlawful presence" is not synonymous with "in violation of status." Many people who violate their nonimmigrant status are "in unlawful status" for purposes of this new provision in the law. Generally speaking, a nonimmigrant is not "in unlawful presence" unless he or she has remained longer that the period of stay explicitly granted on his or her form I-94. Even if the person worked without authorization, they are only in "violation of status" not "unlawful presence." In the case of a student with "D/S", he or she will not be considered in "unlawful presence" even if the student stops going to school, works without permission, or otherwise violates status. The exception to this rule is in a case where the C.I.S. has told the person that they are in unlawful status. At that point, and only at that point, does the person begin to accrue consecutive days in "unlawful presence."