Legal Issues that Will Affect Your Visa Status

Coming to America is the dream for many people around the globe. In order to enter the United States legally, most foreign nationals (any foreigner who is not a naturalized citizen) must obtain a visa before crossing the border. However, even if a foreign national properly obtains a visa, there are certain legal issues that can affect their visa status while in or trying to re-enter the States.

Lawful And Unlawful Entries

When entering the United States, foreign nationals can either do it lawfully or unlawfully. This is important because the manner in which a foreign national enters the country can affect his or her visa status.

A lawful entry into the United States requires the foreign national to properly apply for a visa with the Department of State before entering. If all of the requirements are fulfilled by the foreign national, then the Secretary of State may issue a visa to allow the foreign national to lawfully enter the United States. If an individual enters the country without acquiring a visa, this is considered an unlawful entry.

Visa Extensions

Foreign nationals who want to extend their stay in the United States must file this request with U.S. Citizenship and Immigration Services (USCIS) before an authorized stay expires. If the foreign national remains in the United States longer than authorized, he or she may be removed from the country and barred from returning for a set period of time.

To extend a stay, it's recommended that the applicant files the request at least 45 days before the authorized stay expires. A foreign national may apply to extend a stay if he or she:

  • Was lawfully admitted into the United States with a nonimmigrant visa.

  • Has a nonimmigrant visa status that remains valid.

  • Has not committed any crimes that make the applicant ineligible for a visa.

  • Has not violated any conditions of admission.

  • Has a valid passport, and it will remain valid for the duration of the extended stay.

Bars to Admission Into the United States

Foreign nationals who are deemed inadmissible under the Immigration and Nationality Act are ineligible to receive visas. As a result, they cannot be admitted into the United States. Foreign nationals who have been previously removed or who are unlawfully present in the country will be barred from reentry into the States for a set period time.

Certain Foreign Nationals Previously Removed

Arriving foreign nationals are classified as inadmissible if they seek admission into the U.S. within five years of a removal due to a violation of the Immigration and Nationality Act. If the individual is deported from the U.S. for a second or subsequent time, or if he or she is convicted of an aggravated felony at any time during the original removal, the person is classified as inadmissible and cannot seek admission into the United States for 20 years.

Foreign Nationals Unlawfully Present

Generally, any foreign national who is unlawfully present in the United States will be barred from obtaining a visa for a set amount of time. The length of prohibition depends on how long the person was unlawfully present in the country.

If an individual was unlawfully present in the U.S. for more than 180 days but less than one year, he or she is considered inadmissible and may not seek admission into the country for three years after the removal. However, if the person is unlawfully present in the United States for one year or more, he or she is inadmissible and cannot seek admission into the U.S. within 10 years of removal.

There are certain exceptions to these rules for specific classes of people, including:

  • Minors

  • Asylees

  • Family unity

  • Battered women and children

  • Victims of a severe form of trafficking in persons

Waivers of Unlawful Presence

The Attorney General has sole discretion to waive the unlawful presence of a foreign national if the person is the spouse or child of a United States citizen or a lawfully admitted permanent resident. The individual must show, to the satisfaction of the Attorney General, that the refusal of admission would result in extreme hardship to the citizen or the lawfully resident spouse or parent.

Immigrant Intent Issues When Extending Visa

A successful approval for a visa extension depends on the foreign national's reasons for needing to stay longer in the U.S., and on his or her ability to prove a continued "non-immigrant intent." A "non-immigrant intent" means that the foreign national still plans to leave the U.S. and will not try to live in the country permanently. If the foreign national intends on living in the U.S. permanently, then he or she has an "immigrant intent" and his or her visa will not be extended.

Getting Legal Help

Immigration laws can be difficult to understand and are subject to change. It is important to consult with an experienced immigration attorney or check the USCIS website for the most up-to-date rules and regulations regarding visas. Learn more about the United States border entry rules and visas on FindLaw.

Next Steps

Contact a qualified immigration attorney to help you get the best results possible.