A repeating point of confusion for nonimmigrants entering the country with a valid visa is the difference between their visa expiration date and their I-94 expiration date. Many nonimmigrants catch themselves in a panic when they realize they need to file a I-94 extension before their visa expires in order to remain in the country. With the COVID-19 pandemic still ongoing and changing travel laws, it is now more important than ever to check your I-94 status and see if you need to file an extension.

We’ll walk you through the I-94 extension process to help reduce any panic and increase extension success.

Table of Contents

  1. I-94 Arrival/Departure Record, Explained
  2. I-94 Extension Process
  3. I-94 Extension Documents
  4. I-94 Extension Fees
  5. I-94 Extension Processing Time
  6. I-94 Extension and COVID-19
  7. How VisaNation Law Group Can Help

I-94 Arrival/Departure Record, Explained

Every nonimmigrant entering the U.S. receives an I-94 that basically states they are legally allowed to enter the country and provides them with a departure date. If the nonimmigrant is arriving through an airport or seaport, then U.S. Customs and Border Protection (CBP) will create an electronic I-94 based on the travel records and not issue a paper form to the traveler. Those entering through land will still receive a paper form.

An I-94’s duration varies per person and the visa they are entering with. It can be valid for months or it can be valid for the duration of the visa—often marked D/S for duration of status.

CBP will record your exit from the country electronically from the carrier’s manifest information if you are exiting from an airport or seaport. Those exiting through land need to hand over the paper I-94 they received when they entered the country to CBP.

You can check on the status of your I-94 at the CBP website.

I-94 Extension Process

If your I-94 expiration date is before your visa validity date, you need to file for an I-94 extension. However, not every nonimmigrant is eligible to apply for an extension.

The following I-94 holders are able to request an extension:

  • A nonimmigrant who entered the country legally
  • You haven’t committed any act that would make you ineligible to receive a visa
  • Your visa status is still valid
  • You have a valid passport that will stay valid during your time in the U.S.
  • You haven’t violated the terms of your admission

I-94 holders with the following visas are ineligible for an extension:

  • C, Alien in Transit
  • D, Crewman
  • K-1 or K-2, Fiancé or Dependent of Fiancé
  • S, Witness or Informant
  • TWOV, Transit Without Visa
  • WT or WB, Visa Waiver Program

You should file your I-94 extension at least 45 days before your current I-94 expires.

Form I-539, Application to Extend/Change Nonimmigrant Status

Nonimmigrants with the following visas need to fill and submit form I-539 to request an extension:

  • A-3
  • B-1. B-2
  • G-5
  • H-4
  • K-3, K-4
  • L-2
  • M
  • N
  • NATO-7
  • O-3
  • P-4
  • R-2
  • All V visas
  • TD

To fill out the form be prepared to answer questions regarding the following topics:

  • Basic information about your name, birth, and U.S. address
  • Your latest I-94 number, passport information, and date of last entry into the U.S.
  • Identify your current visa category and its expiration date
  • The number of people included in the application if you are including a spouse or children
  • Your new requested departure date
  • Physical address abroad
  • Any history of immigrant petitions
  • Any criminal history

The form also asks a series of questions to determine whether you might be a public charge based on the Trump administration’s changes to the public charge rule. On July 29, 2020 a U.S. District Judge issued a nationwide injunction halting these changes. While the I-539 form still currently reflects the Trump administration’s changes, USCIS stated they “adjudicate any application or petition for extension of nonimmigrant stay or change of nonimmigrant status on or after July 29, 2020, consistent with regulations in place before the Public Charge Rule was implemented; in other words, we will not apply the public benefit condition.”

I-94 Extension for Employment-Based Visa Holders

The I-94 extension process differs depending on the visa you hold. For employment-based visa holders, your employer needs to fill out form I-129 Petition for
a Nonimmigrant Worker. These categories include:

  • E-1
  • E-2
  • E-3
  • H-1B
  • H-2A
  • H-2B
  • H-3
  • L-1A
  • L-1B
  • O-1
  • O-2
  • P-1
  • P-2
  • P-3
  • Q-1
  • R-1
  • TN-1
  • TN-2.

If you’re living with your spouse and unmarried children under 21 years old and they also want to stay, they should file form I-539. You only need one I-539 per family. Both the I-539 and your employer’s I-129 should be filed together in order to be processed at the same time.

I-94 Extension Documents

Every visa category requires different documents to be submitted with the I-539. Common documents include a copy of your I-94, visa approval notices, passport, and proof of address. For a full list of documents required per visa category visit the I-539 instruction sheet.

If your employer is filing an I-129, there are other documents that need to be submitted but they depend on which employment-based visa you have. For a full list of requested documents for your specific visa category visit the I-129 instruction sheet.

I-94 Extension Fees

I-94 extension fees depend on what visa you hold, but fees start at $455. Below is a breakdown of fees.

  • I-539: $370
  • Biometrics: $85
  • I-129: $460 (for employment-based visas)

I-94 Extension Processing Time

If you file your I-94 extension it is not guaranteed that USCIS will grant the extension. If you file your I-94 extension on time but your departure date arrives before USCIS can make a decision, you will not be deported until USCIS has made a decision on your extension. If your extension is later approved then that period where you still resided in the U.S. while your extension was pending will be considered legal.

You can check I-94 extension processing times at the USCIS processing times page. Make sure to select I-539 as the form and pick the service center where you will submit your forms. Processing times not only vary by service center but also by your visa category with the fastest times being 2 months and the longest times being 16.5 months. The times listed on the USCIS page are updated monthly.

If you file your I-539 online, you can check your status with the account you created. It is also important to periodically check that account in case USCIS has additional requests for evidence. If you file a paper version of the I-539, then USCIS will mail you a receipt with a tracking number for you to check the status of your application and an estimated processing time.

I-94 Extension and COVID-19

The COVID-19 pandemic has created stressful travel situations for many, and USCIS understands the circumstances nonimmigrants might face and has established guidelines for delays in extensions.

USCIS is encouraging those who might need to extend their I-94 to do it as early as possible. If you file your extension late, USCIS may excuse the late filing if it’s due to circumstances surrounding the pandemic. You must submit credible evidence supporting the delay to USCIS if you fall in this situation.

How VisaNation Law Group Can Help

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With the different documents required depending on visa category, and the confusion between I-94 dates and visa expiration dates, handling an I-94 extension can be difficult. VisaNation Law Group's attorneys have extensive experience with I-94 extensions, In addition, they have had success helping nonimmigrants get extensions even if they file after their I-94 has expired.