Automatic Visa Revalidation Rule
(commonly referred to as the “30-day rule”)
by Dinesh Shenoy, Associate Attorney
The automatic visa revalidation rule1 is a useful tool for nonimmigrants (those temporary statuses such as H-1B, F-1, etc.) to be able to make short trips to Canada and Mexico (and in limited cases to certain Caribbean islands as well).
Normally, all foreign citizens (except Canadian citizens) who want to enter the United States to take up temporary status such as H-1B status must present a valid visa in their passport each and every time they enter. This requirement of presenting a visa is strictly enforced at all airports, sea ports and land border crossing points. In fact, unless you are a US citizen or Lawful Permanent Resident (a “green card” holder) or a refugee or have “Advance Parole” travel papers that take the place of a visa, most airlines will not even let you board a flight to the United States unless you already have a valid visa in your passport to present to US Customs and Border Protection when the flight lands in the United States.
The automatic visa revalidation rule is an exception to the general requirement of having a visa in your passport in order to return to valid temporary nonimmigrant status in the United States. The rule does not apply to foreign citizens coming to the United States for the very first time. Rather, it applies to those foreign citizens who have already obtained at least one visa from a US Consulate overseas and have been maintaining that status or another status inside the United States. The automatic visa revalidation rule allows a nonimmigrant to return to the United States without a valid visa in the following situation:
The individual’s currently valid passport contains an expired visa. (If the expired visa is an expired passport, the individual must also have a new valid passport and must present both passports.);
The individual has proof of having maintained nonimmigrant status inside the United States before leaving for the trip. (For example, an F-1 student must present a valid SEVIS I-20 form and I-94 card showing “duration of status”. An H-1B worker must present a valid Form I-797 “Notice of Action” approval notice with unexpired I-94 card, and preferably a recent paycheck.);
The individual has been in Canada or Mexico2 for 30 days or less. During that trip, the individual cannot have traveled to a third country (for example, no traveling from Canada to Iceland back to Canada within the 30 days’ window, or from Mexico to Guatemala to Mexico within the 30 days’ window.);
The individual must still have an approved period of status to come back to. (For example, an F-1 student must still be enrolled in school with time left on the I-20 form and/or still have valid Optional Practical Training time left. An H-1B worker must still have approved time left on the Form I-797 and I-94 to authorize returning to work immediately upon returning to the United States.);
The individual cannot be “inadmissible”, which means cannot be ineligible for a visa for various reasons such as criminal convictions, communicable diseases such as HIV, or past history of “unlawful presence” in the United States; and
The individual cannot be a citizen/national of Cuba, Iran, Iraq, Libya, North Korea, Sudan, and Syria (countries that are identified as sponsors of terrorism by the US Department of State).
NOTE: The automatic visa revalidation rule cannot be used by an individual who during the trip to Canada/Mexico applied for a visa at a US Consulate and who was refused a visa. It is common for citizens of other countries besides Canada and Mexico (for instance, an H-1B worker from India) to want to apply for a visa at one of the US Consulates in Canada or Mexico rather than apply back their country of citizenship. The advantage of getting a visa in Canada or Mexico is that later on during a trip home the lengthy wait for an appointment in some countries (such as India) can be avoided because the individual will already have the visa that they need to return to the USA for the next few years of travel.
This “third country national” (TCN) visa processing option continues to be available at the present time. The important warning to keep in mind when choosing this option is that the individual can return to the United States from Canada or Mexico only if the new visa is actually issued by the US Consulate. If the US Consulate refuses to issue the new visa for any reason (for instance, because of a suspicion that the worker’s credentials or identity cannot be verified or because of a “hit” on the security check that prevents issuance of a visa until the “hit” is resolved by the FBI or other law enforcement agencies), then the applicant has to choose between staying in Canada or Mexico for as long as it takes for the visa to be issued or else returning directly to their country of citizenship and applying for their visa in that country. In other words, the automatic visa revalidation rule may not be used as a “loophole” to return to the United States without a visa in the event that the individual used the trip as an opportunity to apply for a visa and was refused.
The following are some common examples of when the Automatic Visa Revalidation rule may (and may not) be used. As always, specific cases have their own specific facts that might change the applicability or advisability of relying on this rule. Clients are encouraged to discuss their travel plans with our law firm before making any final decisions to travel or to apply for a visa in Canada or Mexico or any other country.
EXAMPLE #1 – Claudette is a citizen of France who obtained an F-1 visa in 2001 to study in the United States. She entered the United States on her F-1 visa in 2001 and began her studies. While she was in her 4-year program, for her trips outside the United States (some to France, some to Asia for study abroad and vacation) she used her existing valid F-1 visa in her passport to present to US immigration inspectors each time she returned to the United States. In 2005 she graduated with a Bachelor degree in Education. She got a job offer with a school to teach French and English and the school properly changed her nonimmigrant status from F-1 to H-1B status. She now has H-1B status valid from 1/1/2006 to 1/1/2009 (shown on a Form I-797 and new I-94 card issued by the USCIS Service Center). It is now the summer of 2006. Claudette is a member of the Association of French Language Teachers, which this year is holding its annual 4-day conference in Montreal. Claudette has a very tight schedule teaching summer classes, but she can manage a 4-day absence, no more. She should make use of the automatic revalidation rule to fly to Montreal for 4 days for her conference and then back to the United States to resume H-1B status. While she could potentially apply for an H-1B visa at the US Consulate while she is in Montreal, there is no reason to do so. She fits within the requirements of the automatic revalidation rule and using the rule is the quickest and easiest way to get back to the United States after this 4-day trip to Canada, instead of applying for an H-1B visa.
EXAMPLE #2 – Ahmed is a citizen of Germany who obtained a J-1 visa in the professor/research scholar category in the spring of 2005 in order to teach Physics at a university in the United States. Because his German passport was expiring by the end of 2005, the US Consulate limited his J-1 visa validity date to the end of 2005. The US Consulate correctly assured him that if he enters the United States while his J-1 visa is valid, it is okay if his visa expires as long as he maintains valid J-1 status by working for the university. Ahmed’s wife his wife Aisha came with him to the United States on a J-2 visa as his dependent. They did not incur the “two-year home residence requirement” and so Aisha was able to successfully change into H-1B status once she found a job as a Teaching Assistant in a different department at the university. Ahmed renewed his passport in early 2006. They have both been working hard for a year; now that the 2005-06 school year is finished, they finally have time for some vacation. Aisha found a great online deal for a 1-week cruise in the Bahamas. The cruise leaves in 3 days so they quickly book their tickets and hurry to get ready for the trip. Only on the ride to the airport does it occur to them to think about their visas. Ahmed will be able to return to the United States without a valid J-1 visa because he has been maintaining J-1 status by continuing to work for the university. Under the automatic visa revalidation rule, all he has to do is present his a valid Form DS-2019 for the upcoming 2006-07 school year that he will be teaching in, and his old and new passports. But Aisha will not be able to return to the United States without an actual H-1B visa in her passport, which could mean extra delay while she locates a US Consulate and schedules an appointment and waits for her interview. (Another option is for her to use her J-2 visa to come back as Ahmed’s dependent if her J-2 visa stamp is still valid, but then she would be in J-2 status again and would require another “change of status” to H-1B status to be filed by the University and be approved before she could resume working legally. In retrospect, she might have considered never getting into H-1B status and instead having obtained an EAD card which is permitted for J-2 spouses.)
Here is a common example of when the automatic revalidation rule cannot be used:
EXAMPLE #3 – Rahman is a citizen of Jordan who obtained an H-1B visa in 2003 and entered the United States to take up a job in nuclear engineering. Three years later, his employer obtained a proper extension of H-1B status to allow Rahman to continue working from 2006 up to 2009. He plans to go home in December 2006 and is worried he will not be able to obtain his H-1B visa quickly enough at the US Consulate in Amman to return to work for an important project at his job that he is leading in January 2007. Knowing that there is a possibility of a delay in getting his visa at the US Consulate in Amman, he therefore schedules an appointment at the US Consulate in Toronto during the summer of 2006 to apply for an H-1B visa. In Toronto the US Consular officer who interviews him tells him everything looks fine but the security check has not cleared and so the visa cannot be issued. The Consulate cannot provide any estimate on whether it will take 1 week, 2 weeks, or several months for the security check to clear. Rahman is forced to either remain in Canada or return to Jordan and try applying again for an H-1B visa. He cannot use the automatic revalidation rule to return to the United States at this time.
*Located in Minneapolis, MN, the law firm of Ingber & Aronson PA offers a full range of immigration counseling services to clients throughout the United States and worldwide. It has been recognized for its excellence in the field and serves as counsel to corporate employers, private individuals, other lawyers, as well as private and public institutions. Dinesh Shenoy has been an Associate Attorney with the firm for more than five years and is a regular speaker on employment based immigration issues. In 2003 he won the AILA Mentor Award for “Outstanding Efforts and Excellent Counsel to Immigration Attorneys By Providing Mentoring Assistance.”