Examining Automatic Revalidation

• Jurisdiction: United States,Federal
• Citation: Vol. 3 No. 2
• Publication year: 2021
• topic: Administrative Law,Immigration Law,Federal

Examining Automatic Revalidation

Peter Choi ^*

Abstract: If a nonimmigrant with an expired visa returns to an American port of entry to seek readmission after a departure from the United States, the rule of automatic revalidation allows for the automatic extension of the validity period of the expired visa, and if needed, an automatic conversion of the visa's nonimmigrant classification, subject to certain conditions. Because of the rule's intricacies, questions of whether and how the rule applies to a variety of scenarios have served as a frequent topic of discussion between immigration attorneys and federal officials over the years. Identifying notable points from these discussions, this article offers a pair of observations on how the rule is administered in an effort to improve clarity on the rule and its practical application. The article also contends, however, that a clearer understanding of the rule may ultimately be better facilitated by a reformulation of it as one that abandons its focus on nonimmigrant visas altogether and provides instead for the revalidation, expressly and exclusively, of nonimmigrant status.

Introduction

This article examines the rule of automatic revalidation. If a nonimmigrant with an expired visa returns to an American port of entry to seek readmission after a departure from the United States, the rule of automatic revalidation allows for the automatic extension of the validity period of the expired visa, and if needed, an automatic conversion of the visa's nonimmigrant classification, subject to certain conditions. The article begins by providing an overview of the rule, codified at 22 CFR § 41.112(d). It then explores how the rule and its variations, formalized elsewhere in the law or borne out by government policy, apply to a variety of both conventional and unconventional situations. In doing so, the article identifies notable points from discussions about the rule that have taken place between immigration attorneys and federal officials over the years. The article then culminates with two insights. First, it offers a pair of observations on how the rule is administered in an effort to improve clarity on the rule and its practical application. Second, however, the article contends that a clearer understanding of the rule may ultimately be better facilitated by a reformulation of it as one that abandons its focus on nonimmigrant visas altogether and provides instead for the revalidation, expressly and exclusively, of nonimmigrant status.

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The Rule of Automatic Revalidation: An Overview

Under 22 CFR § 41.112, titled "Validity of Visa," the rule of automatic revalidation can be found at subsection (d), titled "Automatic Extension of Validity at Ports of Entry." The rule states that provided the requisite conditions are met, "[t]he validity of an expired nonimmigrant visa issued under INA 101(a)(15) may be considered to be automatically extended to the date of application for readmission." ¹ If between initial admission on the visa and the departure, the nonimmigrant is granted a change from status under the classification notated on the visa to status under a different nonimmigrant classification, the rule elaborates that upon return to the port of entry after the departure, "the visa may be converted as necessary to that changed classification." ² The rule then proceeds to list the conditions that must be met for automatic revalidation to apply. ³ Namely, automatic revalidation is conditioned on the returning nonimmigrant:

■ possessing an unexpired Form I-94 (or if the nonimmigrant is a student or exchange visitor, an unexpired Form I-20 or Form DS-2019, ⁴ together with a Form I-94 issued for duration of status); ⁵
■ returning from a trip of 30 days or less solely to a territory contigu-ous ⁶ to the United States (or if the nonimmigrant is a student or exchange visitor, to a territory contiguous, or an island adjacent, ⁷ to the United States);
■ having maintained nonimmigrant status;
■ returning to resume nonimmigrant status;
■ possessing a valid passport;
■ not requiring a waiver of inadmissibility under section 212(d)(3) of the Immigration and Nationality Act (INA); ⁸
■ not having applied for a new visa while abroad; and
■ not being a national of a country identified by the Department of State (DOS) as a state sponsor of terrorism. ⁹

Automatic revalidation originates from a DOS final rule titled "Automatic Revalidation of Nonimmigrant Visas in Certain Cases," published on November 13, 1969. ¹⁰ Originally codified at 22 CFR § 41.125(f) and reorganized under 22 CFR § 41.112(d) on November 5, 1987, ¹¹ that final rule was promulgated without notice and comment and became effective immediately upon publication under the foreign affairs exception to the Administrative Procedure Act's rulemaking requirements. ¹² All of the requisite conditions that must currently be met for automatic revalidation to apply can be found in the originally published version of the rule, except for the conditions that the returning nonimmigrant not have applied for a new visa while abroad and not be a national of a country designated as a state sponsor of terrorism. Those two conditions were added as national security measures in the aftermath of the terrorist attacks of September 11, 2001, through an interim

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final rule of DOS that was published on March 7, 2002, and that went into effect on April 1, 2002. ¹³

In addition to its codification at 22 CFR § 41.112(d), the rule of automatic revalidation as applied specifically to students and exchange visitors can be found at 8 CFR § 214.1(b). A variation of the rule adapted to nonimmigrants admitted under the Visa Waiver Program (VWP), discussed in greater detail below, can also be found at 8 CFR § 217.3(b).

Conventional Cases

"Conventional" cases, as described in this article, are those that conform neatly to the terms of the rule of automatic revalidation as codified at 22 CFR § 41.112(d). They involve situations in which a visa-holding nonimmigrant seeks readmission after a departure from the United States. The nonimmigrant may be seeking readmission under the same nonimmigrant classification as that which is notated on their visa pursuant to 22 CFR § 41.112(d)(1)(i) or a different nonimmigrant classification pursuant to 22 CFR § 41.112(d)(1)(ii).

Readmission Under the Same Nonimmigrant Classification as Classification Notated on Visa

A conventional case in which automatic revalidation applies involves a situation in which a nonimmigrant who, after departing the United States, returns to an American port of entry seeking readmission under the same classification as that which is notated on their visa. Consider the following hypothetical:

■ A Nigerian H-1B worker is first admitted to the United States on October 1, 2018, to take on employment in Buffalo.
■ The worker is admitted pursuant to an H-1B petition approval notice valid for three years from October 1, 2018, through September 30, 2021, and a corresponding H-1B visa valid for two years from September 1, 2018, through August 31, 2020.
■ Upon admission, the worker is issued a Form I-94 valid from October 1, 2018, through October 10, 2021.
■ Maintaining H-1B status for the next two years, the worker departs the United States on October 1, 2020, when they cross into Canada via the Peace Bridge landport for a three-day visit to Toronto.
■ On October 4, 2020, the worker returns to Peace Bridge, seeking to cross back into the United States to resume their H-1B employment.

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Assuming the worker has a valid passport, does not require a waiver of inadmissibility under INA § 212(d)(3), and did not apply for a new visa while in Toronto, their expired H-1B visa may be considered automatically extended through October 3, 2020, under 22 CFR § 41.112(d)(1)(i), thereby allowing them to be readmitted to the United States in H-1B status. Under the policy of U.S. Customs and Border Protection (CBP) in administering the rule of automatic revalidation, the worker would not be issued a new Form I-94 upon their readmission. ¹⁴

Readmission Under a Different Nonimmigrant Classification Than Classification Notated on Visa

Another conventional case in which automatic revalidation applies involves a situation in which a nonimmigrant who, after departing the United States, returns to an American port of entry to seek readmission under a different classification than that which is notated on their visa. Consider the following hypothetical:

■ A Chinese L-1B worker is first admitted to the United States on October 1, 2018, to take on employment in San Diego.
■ The worker is admitted pursuant to an L-1B petition approval notice valid for three years from October 1, 2018, through September 30, 2021, and a corresponding L-1 visa valid for two years from September 1, 2018, through August 31, 2020.
■ Upon admission, the worker is issued a Form I-94 valid from October 1, 2018, through October 10, 2021.
■ The worker maintains L-1B status for the next one-and-a-half years, after which their employer files a petition with U.S. Citizenship and Immigration Services (USCIS) to classify them as an H-1B worker and to request a corresponding change of their status and an extension of their stay. Accordingly, the worker is granted H-1B classification, as well as the requested change of status and extension of stay as evidenced by an H-1B petition approval notice valid from October 1, 2020, through September 30, 2023, affixed with an extended Form I-94 valid from October 1, 2020, through October 10, 2023.
■ The worker continues to maintain L-1B status through September 30, 2020, and H-1B status from October 1, 2020, through October 2, 2020, when they depart the United States by crossing into Mexico via the San Ysidro landport for a three-day visit to Tijuana.
■ On October 5, 2020, the worker returns to San Ysidro, seeking to cross back into the United States to resume their H-1B employment.

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Assuming the worker has a valid...