The most common questions I get from those currently living in America are always about expiring visas, LCAs, I-94 dates, and how the three elements interact. There’s a lot of confusion about when you are and are not allowed to stay in the country and what you are permitted to do while you stay. So let me break it down for you.
First things first, as always, I'm not an immigration attorney and I highly recommend you speak to one if you are facing issues concerning anything below.
The easiest way to sum these issues up is to start broad and then zoom in, because these issues have a way of getting especially curly, very quickly.
If you're outside the United States and you want to enter (e.g. on a visa)
For those of you who are outside the country and want to enter (putting aside any travel limitations due to COVID or other reasons), what you need is one of the following:
- A valid visa; or
- A valid ESTA; or
- A valid green card; or
- A US Passport
Let's assume you don't have a US Passport, because you can always get back into the US if you're a citizen.
What do I need to check if I have a visa?
Inside your passport, if you have a visa, you will see a sticker (referred to as a “stamp” in many cases) that takes up a whole page of your passport. Something like this:
This is effectively your permission to request entry. You need to check the dates on this document to make sure that it's valid, and then you can use it
What do I need to do if I want to enter America on an ESTA?
To enter the US on an ESTA you simply need to go online and request one. There's only one website to request an ESTA from and that's this one: https://esta.cbp.dhs.gov/esta
Don't get it from anywhere else, print it out, and make sure it's valid for the full time you're in the US (which can be up to 3 months).
You can't transfer to another visa or immigration status from an ESTA, it's purely for visiting temporarily.
What do I need to do if I want to enter America on a green card?
Assuming you haven't been out of the country too long, you're fine to enter the United States just like a citizen.
If you're already in the United States the first thing you must check is your I94 date
As a general rule, the I-94 date (which is the date stamped in your passport and/or entered online that you got when you arrived in the country in the first place) is the one you have to check first. It determines the exact date you must have left the country by and it's a firm number.
If you overstay this date, you can get yourself in big strife potentially resulting in deportation, fines, and not being permitted back into the United States for some time (or possible ever).
DO NOT OVERSTAY YOUR I94 DATE*.
If you need help checking this date, then you can click here to find out how to check and/or print your I94 date.
* There are exceptions for those of you who have filed extensions with USCIS and we'll go into those below.
What about my visa? Does that expiry date still matter?
Now we've got the basics out of the way, we can look at the visa. As I talked about above, your visa has an expiry date on it, and that date suggests how long you have permission to request entry into the United States.
Once you're in the United States, that date technically becomes a little moot, as you no longer need to enter (you're already there).
If you leave the United States on an expired visa though, you will not be able to re-enter the country. Very importantly: This is also the case if you have extended your status in America by filing with USCIS (e.g. an I-129) you have extended your ability to stay in the US, but you have not got a new visa. This is an important distinction because if you leave the country, you will not be able to return until you have gone through the visa process (at a US Consulate or Embassy).
When you enter the US, especially on an E3 visa, it's likely that they will stamp your passport (your I-94 date) with two years from entry, as opposed to the expiry date on your passport. This is due to a slight confusion around the rules, and from what we've seen, is basically a mistake. It's not your mistake though, so don't worry if it happens to you.
This does however confuse things as we'll go into below.
Where does my LCA fall in all of this?
As part of a work visa, you will likely have had to fill out an LCA. This document is a request from your employer for permission to employ someone (you) in a certain job, for a certain time, at a certain wage.
At a top-level, this means you can only work in the United States (regardless of everything else) if you have a valid LCA (and a valid I-94, because remember, that one's important).
You can file a new LCA up to 6 months in advance of the start date, and it should not impact any existing LCAs that you are currently using (because the dates won't overlap). So you can file in advance to make sure you stay valid.
So now… let the curliness begin:
I've filed an extension with USCIS, what's the deal with 240 days?
USCIS is a giant machine, and therefore when you file paperwork with them it's likely to take some time. If everyone who filed had to wait for their documents to come back to be able to stay in the US, well there'd be very few who actually got their paperwork back in time.
So they implemented a policy that says (for a lot of filings): Once we have received your documents and issued a notice of receipt, you get 240 days of status added to the end of your I-94.
This means that if you've validly filed for an extension, and haven't heard whether it's been approved or not yet, your confirmation of receipt document counts as extending your status for 240 days. Note: This will not be reflected when you check your I-94 online, so be sure to keep all the paperwork you are mailed back from USCIS.
If my USCIS extension is approved, how long can I stay in America?
When you file an extension, you file a new LCA and fill in a whole range of forms. This includes dates that you are now permitted to stay and on an E3 (for example) that could be up to another 2 years.
Again though, with this extension you can not leave the United States and re-enter. You are stuck outside if you don't have a new and valid visa.
If I have an approved USCIS extension, how do I get a full visa? Is there a special process?
I will admit that I've only found limited information on this and most lawyers I've spoken to have suggested that even with an approved USCIS extension, the best bet is to just file as if you were filing a fresh E3 for your consulate visit.
“Just getting the stamp” might technically be thing but isn't always worth it.
My E3 is expiring, but my I94 is valid for another few months or years! Can I stay and work in the US?
First things first, this is very common. Second things second, the answer to this question is a little murky.
Some lawyers have said that it's fine to keep working without doing anything as long as your I-94 is valid, because when you arrived, you were permitted on your E3 work visa status until that date.
However, when you dig a little deeper you will see that the majority of lawyers recommend taking a slightly more conservative approach to ensure you stay on the right side of the law.
While in theory you can just keep on living and working, it's highly recommended that you extend your status from inside the US (through an I-129) or you leave the country, get a new visa, and return. This is basically due to the origins of the E3 visa and the fact that you're not really meant to have different dates.
Sure, you can skip this advice, and file a new LCA only (definitely recommend at least doing this) but this is US immigration law and you are in the country only with specific permission. Don't ruin this for yourself and don't risk it for everyone else.
The greatest risk comes especially if you want to renew in the future, and if you have to start by explaining why your visa was invalid but you were in the States working for a year, it might just get more difficult for you. You are only permitted at their discretion each and every time.
Please note: I know a lot of you have heard from your own immigration attorneys that it's ok to stay in your particular scenario, and that's fine! Trust your own attorney, not the guy on the internet.
My visa, LCA, and I-94 are all different dates!
Again, this is really common, but it's important that unless you are 100% sure you have filed an extension and have the documents to prove it, you never overstay your I-94, and if you want to keep working, that you file an extension as above with USCIS.
My passport is expiring!
My scenario isn't listed!
Leave it in the comments below and I'll try to answer it so that we can build this page up to be a comprehensive list of scenarios!