University basketball player must travel outside of U. S. to play games, but F1 visa expired several years ago.

Question: I am a 20-year-old citizen of Nigeria, and I came to the United States as a student in 2011. My F1 visa was issued in 2011, but it expired in 2013. Since my entry into the United States, I have remained in the country to continue my education.

Currently, I am a student athlete at a university located in New York State. I play basketball for the university’s division I basketball program. In two weeks, my team is scheduled to play four games outside of the United States: The first and second games are to be played in Canada, and the third and fourth games are to be played in the Bahamas.

If I leave the United States to play any of the games on an expired F1 visa, do I risk being unable to return to the United States to continue my education? Can I apply for a new F1 visa closer to where I go to school, or must I return to Nigeria to obtain a new visa?

Answer: Thank you for your question. I am glad that you reached out before traveling outside of the United States for any of your games, or applying for a new visa at a nearby consulate as a Third Country National. If not handled properly, either option could have an undesirable result, which we obviously want to avoid. Please call my office immediately to discuss your case. In the meantime, I have provided some information below for your review. We will discuss the following information in detail during our consultation.

Applying for a new F1 visa as a Third Country National

Applying for a visa in a country that is not your home country (called a “third” country) can be more difficult than applying at home. If you choose to travel with an expired visa to a third country, you need to consider the following risks: (1) you may be required to stay multiple days until a decision is made on granting you a visa, (2) If your application is delayed for a security check or other administrative reason, you will not be allowed to reenter the United States while you are awaiting your visa application to be processed (the duration of such delays range from a few weeks to several months), (3) if your visa application is not approved, you may not be able to return to the United States, and (4) if your visa application is rejected, you will be required to return to your home country directly to reapply without reentering the United States first.

Based on the facts you provided in your question, applying for a new visa at a nearby consulate may be too risky. In particular, I am concerned about timing issues. As you stated above, you are scheduled to travel in two weeks. With such a short turn around, and the associated risks outlined above, I do not believe that applying at a nearby consulate (e.g., the U.S. Consulate Toronto, Canada) would be your best option. 

Automatic visa revalidation

The more prudent step at this point, considering your time constraints, may be to automatically revalidate your expired F1 visa. 22 C.F.R 41.112(d). You can usually revalidate an expired visa automatically when returning from a visit of less than thirty (30) days to Canada, Mexico, or one of the islands adjacent to the United States (other than Cuba) provided that you have a valid Form I-20 and a valid unexpired Form I-94. This process revalidates your visa (making you eligible for a single trip), but it does not renew it.

However, if you meet any of the following, you will not be able to automatically revalidate your visa: (1) you applied for a new visa and the Department of State has not yet issued it to you, (2) you applied for a new visa and the Department of State denied your application, (3) you have a terminated SEVIS record indicating that you are out of status, or (4) you have been out of the United States for more than thirty (30) days.

In order to take advantage of automatic visa revalidation, you must meet the following requirements:

  • Be readmitted from a continuous territory or adjacent island (except Cuba)
  • Be readmitted after an absence not exceeding 30 days
  • Possess a Form I-94 endorsed to show an unexpired period of initial admission or extension of stay or possess a Certificate of Eligibility Student and Exchange Visitor Information System (SEVIS) I-20AB or SEVIS DS-2029
  • Possess a valid passport, unless exempt
  • Do not require authorization for admission under INA § 212(d)(3)
  • Have not applied for a new visa abroad
  • Have maintained and intends to maintain nonimmigrant status

It should be noted that the provisions of the automatic revalidation of visas is not available to citizens of countries identified as supporting terrorism in the State Department’s annual report to Congress. Citizens from the following countries are currently ineligible: Iran, Syria, Sudan, and Cuba. 

Border advocacy to facilitate automatic visa revalidation

Located near three major ports of entry (Peace Bridge, Rainbow Bridge, and Lewiston-Queenston Bridge), our office is in a unique position to help advocate on your behalf before departing the United States. If necessary, we can submit a brief to immigration officials outlining your eligibility for automatic visa revalidation, in an effort to remove as much uncertainty from your situation as possible.

Conclusion

Before departing the United States to attend any of the basketball games, please contact the office so we can discuss your case in greater detail. You can reach our office by calling (716) 565-6270, or by emailing me at nmurchie@murchielaw.com. Also, you will likely need a visitor visa for both Canada and the Bahamas to enter either country. I look forward to speaking with you.

CASE UPDATE

We were pleased to be able to assist the individual mentioned in above email. Due to timing issues and the risks associated with renewing a visa in at a nearby consulate, we thought it best for the individual to use the provisions of automatic visa revalidation. The individual was able to play both games in Canada, but was unable to travel to travel to the Bahamas because Bahamas immigration required a valid unexpired F1 visa before issuing a visitor visa. Finally, we were able to help facilitate the individual’s readmission to the United States by submitting a brief to Customs and Border Protection (CBP) officials at the Peace Bridge Port of Entry.