Final Regulation on Amendment of Automatic Visa Revalidation
Posted Aug 29, 2003
The U.S. Department of State (DOS), on 18 August 2003, issued the final regulation on the automatic visa revalidation process, sometimes referred to as the "contiguous territory" rule. This rule pertains to the ability of individuals to reenter the U.S. after trips to Mexico, Canada, and certain adjacent islands, using a valid I-94 and an expired visa. We reported on the interim rule in our March 14, 2002 MurthyBulletin article entitled, Overhaul of "Contiguous Territory" Rule: Eliminated for Many, available on MurthyDotCom. The final rule, as is explained below, eliminates the automatic revalidation procedure for individuals who apply for visas in Canada or Mexico, as well as for persons from countries identified as "state sponsors of terrorism." The contiguous territory or automatic revalidation process still exists for foreign nationals who do not fit in the two specified categories.
Final Rule Same after Interim Rule Comments
After reviewing hundreds of comments, DOS decided to publish the interim rule as a final rule, with no change. The interim rule was introduced following the events of September 11, 2001, to address security concerns by increasing applicant visa screening. This rule was effective from April 1, 2002. Since the final rule does not reflect any changes to the procedures, it finalizes what was a temporary measure.
DOS received about 300 comments, apparently about 150 of which were from the foreign student community. The other half were from China, India, and the Philippines, complaining of the time and distance in traveling to those home countries to apply for visas there, and having to forsake visiting their families or attending international conferences and other events.
DOS Response – Revalidation is a Privilege, not a Right
In promulgating the final rule, DOS mentions at the outset that the privilege of automatic revalidation was exactly that, a privilege. It was never a right. It was originally instituted to recognize that those legally in the U.S. frequently wish to travel to Canada, Mexico, and certain adjacent islands for short business and pleasure trips. It would generally be impractical to require these individuals to return to their home countries after the departure to apply for a visa to reenter the U.S. Later, many started using the automatic revalidation process for convenience by seeking to apply for the visa in Canada or Mexico, instead of traveling all the way to their home countries. Under the old rule, they would be able to return to the U.S. even if the visa request was denied.
Since this was not the intent of the regulation, DOS believes that security concerns triumph over any issues pertaining to the convenience of students or workers who do not want to apply for the visa in their home countries. Any request for security pre-clearances was also not practical, since there are no resources or mechanism to pre-clear certain people in advance of traveling to Canada or Mexico.
Limitations on Visa Revalidation
As mentioned, the final rule is the re-publication of the interim rule that was originally published in March 2002, effective since April 1, 2002. Accordingly, under the final regulation, a visa cannot be automatically revalidated for two classes of applicants seeking reentry to the U.S. from a contiguous territory.
1) if the person chooses to apply for a visa at the consulate in that contiguous territory
2) for nationals of countries considered to be state sponsors of terrorism, if they travel abroad, regardless of whether or not these nationals apply for a visa abroad
This means that persons in these classes of applicants will not be able to reenter the U.S. without a current, valid visa in an appropriate category, even if their travel to the contiguous territory is for fewer than 30 days.
We at The Law Office of Sheela Murthy sometimes receive inquiries from people who had originally entered the U.S. on B-2 status and changed to H1B within the U.S. Then, they innocently travel to Canada to apply for a visa. They do this confident they will be able to return, even if the visa is denied, since they know someone who did it a few years ago. Now this visa applicant will have to return to the home country directly from Canada or Mexico, without being able to reenter the U.S. While it is still possible for third country nationals to apply for nonimmigrant visas in Canada or Mexico, if denied it becomes necessary to make an unexpected trip to the home country immediately.
This change is not to be confused with the visa revalidation procedure, available for some through the DOS. That procedure remains unchanged. As we have recommended previously, the elimination of the contiguous territory rule for visa applicants makes the DOS revalidation procedure quite attractive for eligible individuals.
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