I'm Sorry, Your VISA Has Been Canceled
No, this does not express the woes of the spendthrift who has run up excessive charges on a credit card. That solution would be simple -- switch to MasterCard or American Express for additional credit.
Instead, this message will be directed to potentially thousands of foreign nationals who overstay - by even a single day - their permitted time of stay in the U.S.
Under the Immigration and Nationality Act (INA), all nonimmigrants present in the U.S. are issued an I-94 Departure Card which specifies the time limits on their stay. This applies to all the temporary categories, such as professional workers (H-1), intra-company transferees (L-1), employees of Treaty Trading Companies (E-1) or Treaty Investors (E-2), students (F-1), and visitors (B-1 and B-2). The I-94 card, issued by an INS officer at the Port of Entry after determining the purpose for entry, represents the extent of individual's permission to remain in the U.S.
Independently, each applicant for admission to the U.S. must also present a visa (stamped into the passport) for the type of stay (work, study, pleasure...) sought. Visas are issued by the U.S. Department of State, an agency wholly independent of the Justice Department's INS. Visas are issued at U.S. Embassies or Consulates around the world.
The visa is, essentially, an admission ticket to the U.S. The visa permits an applicant to come to a Port of Entry and request admission by the INS. Thus, it is sufficient to have even one day's validity remaining on a visa in order to gain entry into the U.S. for a potentially lengthy period authorized by the INS. In the absence of a valid visa, the INS will not even consider admitting the applicant.
Visas are issued for varying periods of validity, dependent upon the visa category and the applicants country of nationality. For example, a Japanese professional or transferee can receive a visa valid for 5 years and an unlimited number of entries to the U.S. Compare a professional from China (PRC) whose visa can be used only for a single entry which must occur within 90 days of visa issuance.
The importance of retaining visa validity has always been important. Upon expiration, the holder must reapply to an embassy or consulate for a new visa, as prerequisite to reentering the U.S.
WHOOPS, I'VE LOST MY VISA
Until now, the effect of violating terms of a nonimmigrant stay (overstaying, employment without authorization, exceeding permitted terms of stay) required the individual, at most, to briefly depart the U.S., leaving the door open to immediately turning around and seeking reentry based on strength of a long-term visa. However, recent legislation (effective September 30, 1996), the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) socks status violators or overstayers with a major penalty. '632(a) of IIRAIRA (found at '222(g) of INA) automatically voids the visa of any person who overstays by even a single day.
In this situation, the individuals who must depart the U.S. will need to secure a new visa before returning. Under prior law, the visa application could be made (conveniently) at any visa-issuing consulate (e.g. at Toronto, or in Mexico, requiring a minimum of travel).
Consider a pertinent recent example of the impact of this new legislation: A Japanese Treaty investment companies' employee, enjoying benefits of a 5 year visa and receiving a fresh full 1 year's permission to stay each time reentering the U.S. Although his frequent international travel assured that he would not overstay, his wife and children, who remained in the U.S. while he traveled, inadvertently missed their 1 year departure deadline. This automatically voided their visas, as well as rendering them out-of-status and, thus, deportable.
Under prior law, the simple solution would have been to briefly depart the U.S., reentering on their preexisting visa and thus correcting their status. Now, as a result of IIRAIRA '632, this family must obtain a new visa from the consulate located in their country of nationality, engendering extensive travel and inconvenience. An Argentinean would have to return to Buenos Aires, a Japanese national to Tokyo, etc.
The harshness of this provision is exacerbated when considering that the penalty (of being limited to visa processing only in one's country of nationality) is triggered by overstays or status violations which have ever occurred, even potentially many years ago.
WHAT TO DO?
The best advice to persons temporarily in the U.S. is to carefully remain in status and observe their deadlines, timely securing extensions of stay when needed. Yet, if one's status has been violated and both the I-94 and visa have been voided, there may occasionally be short-cuts available to traveling overseas to process for a new visa. For example, for the Japanese Treaty-Investor's family members who had overstayed in the U.S., the U.S. Embassy in Tokyo has a generous policy of allowing visa processing to be done by mail (so long as less than a 6 month's overstay in the U.S.). While, staying in the U.S., their visas could be replaced by mail. Thus the new visa will be untarnished. With new visas in hand, the family can briefly travel into Windsor (lunch being optional) and immediately turn-around, requesting a new one-year's stay in the U.S.
The Congress intended this new provision to inconvenience status violators and in most instances, will have succeeded. Foreign nationals temporarily in the U.S. should be counseled, at all costs, to remain in-status and not to miss any deadlines. If a violation occurs or is feared as being potential, a lawyer's assistance in the highly-specialized immigration field should be obtained.