Before reading this section, be sure to familiarize yourself with the difference between a visa and a status.
While most foreign nationals must present a visa in order to enter the US, there are several exceptions, some of which are listed below:
- Returning lawful permanent residents should present their Permanent Resident Card (green card) or certain other documents [1].
- Nationals of certain countries may visit the US for business or pleasure using the Visa Waiver Program. Note that "business" doesn't include "work". In addition, there are several restrictions on the VWP, including:
- If arriving by air or sea, you will need to apply for advance authorization [2] through ESTA.
- A foreign national who was admitted under the VWP and overstayed their visit becomes permanently ineligible for the VWP [3]. This means they will need a visa in the future unless they qualify for some other exemption.
- Similarly, aliens previously removed from the US are permanently ineligible for the VWP [4].
- Being refused a visa or admission to the United States makes it unlikely, but not impossible, to qualify under the VWP in the future. [5]
- Foreign nationals admitted under the VWP are ineligible for extension of stay [6], change of nonimmigrant status [7], and adjustment of status unless as the immediate relative of a US citizen [8].
- Canadian and Bermudian citizens seeking admission as nonimmigrants using their Canadian or Bermudian passport are visa-exempt unless they are seeking admission in E, K, S, or V status [9]. The restrictions described above on the Visa Waiver Program do not apply to Canadians and Bermudians. However, Canadians and Bermudians cannot simply stroll into the US. If they want to be admitted in a status that requires additional documentation, such as F-1 or H-1B status, they must still present the required documentation at the port of entry.
- Mexican nationals seeking to visit the US for short periods of time can use their Border Crossing Card [10], but this is not really an exception since a Border Crossing Card can also be used as a B-1/B-2 visa.
The expiration of your visa has no bearing on whether or not you may remain in the United States. However, nonimmigrants who aren't visa-exempt (see above) will need to present a visa the next time they leave and re-enter the US. Nonimmigrants who have made the US their home and who don't want to be stranded outside the US are often interested in knowing whether it's possible to renew their visa while they're still in the US, so that they can depart the US with a new visa already secured. Unfortunately, with very few exceptions, visas can only be issued outside the US at a consular post [12]. Even though federal regulations theoretically allow renewal of an E, H, I, L, O, or P visa while in the US, it doesn't seem that that option is currently available. Therefore, all H-1B, L-1, and other temporary workers in the US, other than those who are visa-exempt, should be prepared for the possibility that delays in obtaining a new visa will delay their return to the US after a trip abroad.
No. A US visa remains valid until its indicated expiration date or until it is cancelled or revoked, even if the containing passport expires. The holder of the expired passport with the visa still in it can use that visa together with an unexpired passport bearing the same name. [13]
Some nonimmigrants with expired visas can return to the US using the expired visa after a visit solely to foreign contiguous territory or adjacent islands for 30 days or less. It may be possible to take advantage of this provision even if the expired passport is for a different nonimmigrant classification than the one you hold at the time of departure and in which you intend to return. The regulations for so-called "automatic revalidation" are set out in 22 CFR §41.112(d) and 8 CFR 214.1(b). For a more readable overview, see here.
Note that automatic visa revalidation can never be used to extend status! The relevant regulations permit the nonimmigrant to apply for readmission within the authorized period of initial admission or extension of stay
, meaning that the nonimmigrant may apply at the port of entry to resume their previous period of admission, which had been granted by an admission or an extension of stay. In effect, the nonimmigrant who uses automatic revalidation is asking CBP to allow them to resume their most recent I-94. A nonimmigrant who wishes to stay longer must either file for an extension with USCIS, or apply for readmission without using automatic visa revalidation. In this latter case, citizens of most countries will need an unexpired visa with the correct classification.
Attending a job interview is not "work", and is a permitted activity for visitors to the US. This means you don't need sponsorship from the company you're applying to merely to attend the job interview, and you may qualify for one of the visa exemptions listed above; for example, Canadians interviewing in the US only need their passport, while most Europeans will only need their passport and approved ESTA. Otherwise, a B-1 visa (or B-2 if the primary purpose of the trip is pleasure) is appropriate. However, you will have to leave and re-enter the US with an appropriate status (such as H-1B) in order to actually begin working. If the CBP officer believes that you're not going to comply with this rule, they will deny you entry.
In most cases, this process involves both you and your sponsoring employer.
- Your sponsoring employer must first file a petition with USCIS to establish your eligibility for one of the nonimmigrant classes eligible for employment in the US
- Once this petition is approved, you can use it to apply for the corresponding visa type at a consular post; see here for instructions. Your employer does not need to be involved when you are applying for the visa itself.
Those who are visa-exempt would still need the approved petition from step 1 in order to obtain the nonimmigrant status you are seeking.
There are exceptions to this rule. Canadians who want to work in TN status are exempt from both steps; they do not need visas, and can apply for admission at the border without any prior petition approval. (TODO: also discuss H-1B1 and E-3 visas here.)
No. You need a Canadian visa, unless you're a citizen of one of the visa-exempt countries.
Yes. If you have a valid and unexpired US visa, then you don't need a Mexican visa to visit Mexico. [11]
Are Canadians still visa-exempt even if they've violated immigration laws or been denied admission or denied an immigration benefit?
Yes. Federal regulations [9] do not appear to contemplate any exceptions to the visa exemptions enjoyed by Canadians seeking admission as nonimmigrants other than in E, K, S, or V status. Thus, being denied entry to the US, or making some other request for an immigration benefit which ends up denied, does not create a requirement for Canadians to apply for visas in the future; nor do violations, ranging from minor ones such as overstaying by a few days, to the more serious, such as engaging in unauthorized employment.
Thus, as discussed previously, the rules are quite different for Canadians and other visa-exempt nationals, such as Australians; circumstances such as overstays that would force other nationals to apply for visas for future visits to the US do not have the same effect on Canadians.
It is important to remember that aliens in general, including Canadians, may become inadmissible to the US if they were previously removed or committed certain severe crimes or violations of US immigration law. Even in such cases, there is no point in a Canadian trying to apply for a visa, since the application will be denied due to inadmissibility anyway. It is sometimes possible to have grounds of inadmissibility waived by filing the appropriate form. If the waiver application is approved, the Canadian is then once again eligible for visa-free entry.
Typically, a noncitizen who is inadmissible is also banned from obtaining a visa [26]. For example, if a noncitizen has accumulated enough unlawful presence in the US that they are subject to a statutory bar on re-entering the US, then that person also cannot obtain a US visa (unless their ban has been waived). They must wait out their ban period before they can be issued a visa.
However, travel bans issued by the President (such as the well known Trump-era nationality bans [22][23]) fall under one specific section of the law, INA §212(f). While §212(f) gives the President authority to suspend entry of a class of noncitizens, it does not give the President authority to deny visas to those noncitizens. Despite this, the State Department has long taken the position that §212(f) applies to both entry and visa issuance, and has therefore denied visas to various noncitizens on the basis of §212(f). In other words, the State Department's position is that individuals who are subject to §212(f) travel bans are not eligible to be issued a visa, unless:
- they can demonstrate that they fall under one of the exemptions in the proclamation;
- they are applying for a visa in a category that is not banned by the proclamation; or
- they are granted a waiver when they apply for the visa.
A banned individual who applied for a visa would thus either receive an outright denial under section 212(f), or be referred to administrative processing to determine whether the individual may qualify for an exemption or waiver (for example, see [24]).
We will discuss the specific case of the regional COVID-19 travel bans proclaimed during the Trump and Biden administrations. These proclamations, in general, suspended the entry of noncitizens if they had been physically present in certain countries for 14 days prior to seeking entry to the US (they were not, however, based on the nationality of the traveller). See for example [17–19]. As of Jan 1, 2022, there were no such regional proclamations in effect, although it is possible for them to be reintroduced in the future, so we will discuss the legal issues here. The State Department's policy was particularly impactful in the case of the regional COVID-19 travel bans. For example, Brazil was one of the countries subjected to a regional COVID-19 travel ban. This meant that a Brazilian citizen who already had a US visa prior to the proclamation, and who was hoping to travel to the US, would have been able to enter the US by first travelling to Mexico for 14 days and then proceeding to the US. However, a Brazilian citizen who did not already have a US visa, and was planning on travelling to Mexico and then the US, would have been refused a visa by the US embassy and consulates in Brazil during the proclamation, and would most likely not have been able to enter the US.
A number of legal challenges were mounted to the State Department's policy, asserting that §212(f) may only be used to ban entry, and not issuance of visas (therefore, in the hypothetical situation previously discussed, the Brazilian citizen should have been able to obtain a US visa in Brazil despite the fact that they would have to spend 14 days in a non-banned country prior to using said visa). Most of these lawsuits sought injunctions allowing plaintiffs to obtain visas. On October 5, 2021, in the case Kinsley v. Blinken, the District Court for the District of Columbia actually concluded that the State Department's policy is unlawful (see [29]), though it stopped short of entering a universal injunction so the State Department was not actually forced to revise its guidance. On October 25, 2021, the regional COVID-19 travel bans were replaced with Proclamation 10294, whch imposes a vaccination requirement for noncitizens from all countries [30] and explicitly states that the proclamation applies only to entry and not to visa issuance. This may indicate that the State Department's preferred method to deal with the court's ruling was to moot it out and reserve the possibility of eventually banning visa issuance again during a future presidential proclamation.
Note that the Trump-era nationality bans were rescinded on January 20, 2020 [27], the immigrant visa ban [15] was rescinded on February 24, 2021 [28], and the work visa ban [16] expired at the end of March 31, 2021 [20]. These bans are no longer in effect.
[1] 8 CFR §211.1(a)
[2] 8 CFR §217.5(a)
[3] INA 217(a)(7) (8 USC §1187(a)(7))
[4] 8 CFR §217.2(b)(2)
[5] https://help.cbp.gov/app/answers/detail/a_id/1097/~/previously-denied-a-visa-or-immigration-benefit
[6] 8 CFR §214.1(c)(3)(i)
[7] INA 248(a)(4) (8 USC §1258(a)(4))
[8] INA 245(c)(4) (8 USC §1255(c)(4))
[9] 8 CFR §212.1(a)(1)
[10] 8 CFR §212.1(c)(1)(i)
[11] https://consulmex.sre.gob.mx/sanfrancisco/index.php/visas-traveling-to-mexico
[12] 22 CFR §41.111
[13] 9 FAM 403.9-3(B)(4)
[14] INA 221(g) (8 USC §1201(g))
[15] Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak
[16] Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak
[17] Presidential Proclamation 9984
[18] Presidential Proclamation 9992
[19] https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/25/proclamation-on-the-suspension-of-entry-as-immigrants-and-non-immigrants-of-certain-additional-persons-who-pose-a-risk-of-transmitting-coronavirus-disease/
[20] Presidential Proclamation 10131
[21] (Reserved)
[22] Presidential Proclamation 9645
[23] Presidential Proclamation 9983
[24] https://twitter.com/gsiskind/status/1275792561454579712
[25] https://www.natlawreview.com/article/update-gomez-v-trump
[26] INA 212(a) (8 USC 1182(a))
[27] https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/proclamation-ending-discriminatory-bans-on-entry-to-the-united-states/
[28] https://www.whitehouse.gov/briefing-room/presidential-actions/2021/02/24/a-proclamation-on-revoking-proclamation-10014/
[29] https://www.immigrationissues.com/update-on-travel-ban-litigation-kinsley-v-blinken/
[30] https://www.whitehouse.gov/briefing-room/presidential-actions/2021/10/25/a-proclamation-on-advancing-the-safe-resumption-of-global-travel-during-the-covid-19-pandemic/