Foreign national individuals coming to the United States or in the process of filing a nonimmigrant petition or application should make sure they have a sufficiently valid foreign passport to avoid problems due to past or upcoming passport expiration.
U.S. Customs & Border Protection (CBP) rules require most nonimmigrant visa applicants for admission to the United States to have a passport that is valid for at least 6 months beyond the individual's anticipated period of stay. While CBP can consider the passport validity as automatically extended for at least 6 months beyond the expiration date for foreign nationals from many countries (see https://www.ustraveldocs.com/ci/9-FAM-41.104-Exhibit-I.pdf), CBP does not always follow this guidance, and may admit the individual only until the passport expiration date, which can be considerably earlier than the end of the period of stay for which the individual is eligible. Foreign nationals who overlook that their Form I-94 – the document generated electronically by the CBP system that shows the authorized period of stay – was limited to the expiration date of their passport, risk unknowingly being unlawfully present, and, in turn, becoming deportable.
The U.S. Citizenship & Immigration Services (USCIS) generally accepts nonimmigrant petitions and applications even where the foreign passport has expired or will expire soon. However, for those asking for an extension or change of status, USCIS as per its guidance requires for adjudication purposes that the passport be valid for the entire period of stay requested (see their flyer at https://www.uscis.gov/sites/default/files/document/guides/C1en.pdf). In practice, USCIS generally sends a request for evidence (RFE) to ask for an updated passport if the copy of the identification page of the passport submitted shows that the passport has expired or will not cover the entire period of stay requested. This can be problematic if the individual is then unable to obtain a new passport within the time period given to respond to the RFE.
Individuals have reported substantial delays or even inability to obtain a new passport from their local consular post in the United States due to the COVID-19 pandemic, i.e., related closures of posts or lack of in-person appointments. Hence, foreign nationals planning on traveling to the United States as nonimmigrants, or on filing a nonimmigrant petition or application for extension or change of status, should at all times monitor the expiration of their passport and Form I-94, and begin a passport renewal process as soon as possible. The problem is similar for U.S. citizens residing abroad, especially for those with children under the age of 16, who require an in-person passport renewal appointment every five years.
Immigration counsel can assist with obtaining and tracking I-94 expiration data, foreign passport renewals, and in certain favorable circumstances, even after-the-fact, filing of petitions or applications to extend status where the individual's Form I-94 does not match the period of stay for which the individual is eligible.Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.