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What happens if the visa date in the passport and the I-94 departure date differ? Which date takes preference?

Glendale, AZ |

Visa date has expired but I-94 departure date still has a year remaining. Will the passport holder become undocumented and out of status? Will they face being barred from the U.S.A. for three or ten years depending on length of "Overstay" in terms of the visa if they leave before the date stipulated by I-94 departure date? Holder is an H-4 holder but turned 21. I-94 was officially issued and no -one from U.S.C.I.S. has challenged or contacted the recipient about the discrepancy. If said person attempts to leave before the I-94 and is barred, can said person challenge the bar given that person is leaving before stipulated time? Would this affect family members who are in status and are attempting to apply for Permanent Residence?

Attorney Answers 3


The visa controls only your ability to leave the U.S. and then return. If it has expired, then you would need to obtain a new visa if you leave the U.S. and wish to return in the same status. The I-94 Arrival-Department controls your legal status while you are present in the U.S.

(213) 394-4554 x0 Mr. Shusterman is a former INS Trial Attorney (1976-82) with over 35 years of immigration experience. His response to your question is general in nature, as not all the facts are known to him. You should retain an attorney experienced in immigration law to review all the facts in your case in order to receive advice specific to your case. Mr. Shusterman's statement above does not create an attorney/client relationship.

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A minor under the age of 18 does not accrue unlawful presence for purposes of the three and ten year bars until the day after her 18th birthday. The I-94 card states the period of your authorized stay in the U.S. If you believe you were given time beyond 21 years in H-4 status, you may want to talk to an immigration attorney and seek advise on how to proceed.

This response is general in nature and cannot be construed as legal advice, given that not enough facts are known. Any comments offered on Avvo are of a general nature only, and are not meant to create an attorney-client relationship. If you would like additional information based on this response, please contact my office at 510 657 7665 or 415 902 0832 to schedule a consultation.

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In most cases the I-94 controls.

You have identified an exception to that rule ... when a person on H-4 turns 21.

Yes, they are out of status. But, it is debatable as to whether or not they are accruing unlawful presence.

Meet with an immigration attorney for personal guidance.

PROFESSOR OF IMMIGRATION LAW for over 10 years -- This blog posting is offered for informational purposes only. It does not constitute an attorney-client relationship. Also, keep in mind that this is an INTERNET BLOG. You should not rely on anything you read here to make decisions which impact on your life. Meet with an attorney, via Skype, or in person, to obtain competent personal and professional guidance.

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