March 8, 2002

New State Department Rule Severely Limits use of Automatic Revalidation of Nonimmigrant Visas

For many years non-immigrants have taken advantage of a Department of State (DOS) regulation that allows foreign nationals to travel to contiguous countries or adjacent islands without a valid visa, as long as the individual possesses a valid I-94 Card and accompanying documentation verifying current lawful status in the U.S. (valid I-797 notice or valid I-20 or valid IAP-66). On March 7, 2002, the DOS revised the regulations regarding these automatic revalidations. The revisions affect third country nationals from designated terrorist sponsoring states and those whose visa applications are denied. The revisions do not apply to third country nationals from non-designated terrorist sponsoring states, if they do NOT apply for a visa while on a trip to Canada or Mexico for 30 days or less, they can still use 22 CFR 41.112(d) to apply to reenter the U.S. on an expired visa, if otherwise qualified.

The new revisions limiting the use of the section will take effect April 1, 2002. As of that date, foreign nationals from terrorist sponsoring states will be unable to benefit from the provisions of the new regulations found at 22 CFR 41.112(d). The following countries have been officially identified as sponsors of terrorism: Iraq, Iran, Syria, Libya, Sudan, North Korea, and Cuba. However, other countries may be designated in the future.

In addition, if any foreign national goes to a US consulate in Mexico or Canada, and "applies" for the visa and the visa is not issued for any reason, the applicant will NOT be able to return on the basis of an unexpired I-94 card.

In both cases, the foreign national will have to try to get deferred inspection, parole, or a documentary waiver at the port of entry to enter the US. Also, a foreign national’s inability to provide the requested documentary evidence may trigger expedited removal. Individuals who are eligible to use the Visa Waiver Program (VWP) should be aware of the consequences of using this option to return to the US after being denied the visa in Canada or Mexico. VWP entrants (post visa denial) may not change status in the US, or work under previously authorized work related nonimmigrant visa status without the correlating visa .

This revision as well as the additional security checks being conducted for males between the ages of 16 and 45 who are nationals of the 26 designated countries will now have to consider and make arrangements for extended stays outside of the U.S. while the INS and DOS complete the new security clearances.

If a foreign national has plans to leave the U.S., and he or she does not have a valid visa, it is advisable that immigration counsel be consulted in advance of any trips to ensure that all issues are addressed.