For today's column, let me answer questions sent to me earlier this week:
Question 1: I am presently in the US visiting my sick sister. The officer at the border stamped my passport that I am allowed to stay here until December 1, 2018. However, my B2 visa expires on August 5, 2018. Can I stay here in the US until December 1, 2018 even if my visa has expired by then?
Answer: Yes, you can stay in the US until December 1, 2018, the date that the US Customs and Border Protection agent has stamped in your passport. This is also known as your I-94 date. You are authorized to stay until such date even if your tourist visa expires earlier. The visa only enables you to enter the US. Its validity or expiry does not control how long you stay. Similarly, if your visa is valid for 10 years, it does not mean that you are allowed to stay in the US for 10 years. What is controlling is the date and the time period given to you when you enter the US.
Question 2: So if I go home before December 1, 2018 but after August 5, 2018, maybe around September 15, 2018, can I come back to the US on October 15 and have the remainder of the days I did not use during my earlier stay?
Answer: No. Once you left you cannot claim the remainder of the days of your authorized stay. And since your visa has already expired when you came back on October 15, 2018, you would have to reapply for a new visa.
Question 3: What if I just choose to extend my stay in the US. Would that have any negative consequences?
Answer: Yes, you can file for extension of stay before your authorized period expires on December 1, 2018. But you have to be very careful. You must have a very valid reason to extend your stay, such as a medical emergency or verifiable unfinished business engagements. If you submit an application for extension but did not prepare thoroughly you could outrightly be denied and potentially be placed in removal proceedings, since with the new USCIS policy issuance of RFEs is no longer the standard practice.
Question 4: What if I just choose to reapply for a new tourist visa. Would I have a higher chance of approval because I did not violate my status?
Answer: Each application is treated individually and on a case-to-case basis. Your previous travel to the US even if you did not overstay does not automatically qualify you for visa reissuance or reapproval. You will still be evaluated based on standard policy and guidelines and at the consular officer's discretion.
This column is not a substitute for professional legal advice obtained from a US-licensed immigration attorney. The information contained herein does not constitute a warranty or guarantee or legal advice regarding a reader’s specific immigration case. No attorney-client relationship is and shall be established with any reader.
For any questions, comments and observations, please contact Atty. Marco Tomakin at mtomakin@gmail.com