Revalidation of Expired Visas After Travel to Contiguous Territory
Written by Henry J. Chang
February 13, 2009
Nonimmigrants who are in lawful status in the United States can usually be readmitted after a temporary visit to contiguous territory (Canada and Mexico) for less than thirty days, provided that they are returning to resume their lawful nonimmigrant status. In the case of F-1 and M-1 students, the provision applies to contiguous territory and adjacent islands other than Cuba. The applicable provision appears in 22 CFR §41.112(d) which is reproduced below:
DOS Regs, SUBCHAPTER C-FEES AND FUNDS, §41.112(d)
AUTOMATIC EXTENSION OF VALIDITY AT PORTS OF ENTRY.
The above provision not only provides for automatic revalidation of expired visas but also automatic revalidation from one visa category to another where the applicant has changed status since his or her initial entry. However, great care must be taken to ensure compliance with the requirements of 22 CFR §41.112(d) before leaving the United States.
The alien must be in possession of a currently valid I-94, IAP-66 (for J-1s) or I-20 (for F-1s) indicating a currently valid period of stay at the time that he or she seeks readmission. The alien must not have been outside the United States for more than 30 days and must have travelled solely to contiguous territory (or in the case of a student or exchange visitor contiguous territory or adjacent islands other than Cuba). The alien must have maintained his or her status while in the United States. If the alien has fallen out of status prior to departing the United States, he or she cannot use this provision. The alien requires a valid passport and must not require a waiver of inadmissibility under INA §212(d)(3). Finally, the alien must not have applied for a new visa while abroad.
- Provided that the requirements set out in paragraph (d)(2) of this section are fully met, the following provisions apply to nonimmigrant aliens seeking readmission at ports of entry:
- The validity of an expired nonimmigrant visa issued under INA 101(a)(15) may be considered to be automatically extended to the date of application for readmission, and
- In cases where the original nonimmigrant classification of an alien has been changed by INS to another nonimmigrant classification, the validity of an expired or unexpired nonimmigrant visa may be considered to be automatically extended to the date of application for readmission, and the visa may be converted as necessary to that changed classification.
- The provisions in paragraph (d)(1) of this section are applicable only in the case of a nonimmigrant alien who:
- Is in possession of a Form I-94. Arrival-Departure Record, endorsed by INS to show an unexpired period of initial admission or extension of stay, or, in the case of a qualified F or J student or exchange visitor or the accompanying spouse or child of such an alien, is in possession of a current Form I-20, Certificate of Eligibility for Nonimmigrant Student Status, or Form IAP-66, Certificate of Eligibility for Exchange Visitor Status, issued by the school the student has been authorized to attend by INS, or by the sponsor of the exchange program in which the alien has been authorized to participate by INS, and endorsed by the issuing school official or program sponsor to indicate the period of initial admission or extention of stay authorized by INS;
- Is applying for readmission after an absence not exceeding 30 days solely in contiguous territory, or, in the case of a student or exchange visitor or accompanying spouse or child meeting the stipulations of paragraph (d)(2)(i) of this section, after an absence not exceeding 30 days in contiguous territory or adjacent islands other than Cuba;
- Has maintained and intends to resume nonimmigrant status;
- Is applying for readmission within the authorized period of initial admission or extension of stay;
- Is in possession of a valid passport;
- Does not require authorization for admission under INA §212(d)(3); and
- Has not applied for a new visa while abroad.
- The provisions in paragraphs (d)(1) and (d)(2) of this section shall not apply to the nationals of countries identified as supporting terrorism in the Departments annual report to Congress entitled Patterns of Global Terrorism.
The last requirement appeared in amendments that were published in the Federal Register on March 7, 2002 (the "Amendments"). Effective as of April 1, 2002, it prohibits the re-entry using an automatically revalidated visa of any alien who has applied for a new visa while outside the United States. This change was prompted by the desire to prevent aliens subject to enhanced security procedures from re-entering the United States via automatic revalidation prior to security checks having been completed but applies to all aliens who seek revalidation after having applied for a new visa (and who have been denied).
According to Note 3 to §41.112 of the Foreign Affairs Manual states that an "expired nonimmigrant visa" means a visa which is no longer valid either because of the passage of time or because the alien has used up the number of entries for which the visa is valid. However, a visa which has been cancelled is not capable of being revalidated. For example, Iranian visas are supposed to be cancelled after the alien has been admitted. Where the Iranian national's visa has been cancelled, it cannot be revalidated pursuant to this provision.
22 CFR §41.112 does not appear to apply to aliens who initially entered as visa-exempt persons since it refers to a previously issued visa. Canadian nationals are visa-exempt from nonimmigrant visa requirements (except for E-1/E-2 treaty traders and investors and K-1 fiances) pursuant to 8 CFR §212.1(a). Since visa-exempt aliens are not issued nonimmigrant visas, where a visa-exempt Canadian national changes status in the United States to a category requiring a visa, the automatic revalidation provision will not apply. For example, a TN professional who changes status in the United States to E-2 treaty investor will not be able to re-enter the United States unless he or she obtains an E-2 visa at a U.S. consulate abroad.
Prior to the Amendments, nationals of Iraq were specifically excluded from automatic visa revalidation. Other foreign nationals were excluded as well through Department of State cables. The revised regulation now simply makes reference to "nationals of countries identified as supporting terrorism in the Department of State's annual report to Congress entitled 'Patterns of Global Terrorism'". Countries currently designated as global sponsors of terrorism include: Cuba, Iran, Sudan, and Syria. Other countries may be designated in the future.