US Immigration Law is full of words and phrases which have specific meanings, as do all areas of law. We call these words and phrases “terms of art” because they have a distinct meaning in the context of immigration law which they may not have in another context. For example, “change of status” means changing the status of a non immigrant to another non immigrant category, such as B-2 visitor to F-1 student or F-1 student to H-1 professional employee. “Adjustment of status” means changing a non immigrant to an immigrant such as going from H-1 to permanent resident. We cannot “change” status from H-1 to a green card, we can only “adjust” status. Conversely, we cannot “adjust” status from F-1 to H-1, we can only “change” it.
As lawyers we do not normally expect clients to learn all of the terms of art and use them correctly when discussing their cases. In fact, in most cases I can determine that a client really means “adjustment of status” when he or she says “change of status” because I know we were retained to obtain his or her permanent residence. I also know the opposite if a student says he/she is trying to “adjust status” to H-1. On the other hand, if an attorney or paralegal uses these phrases incorrectly it causes confusion and concern since they know what they mean and should use them properly.
There is one area where it is not as easy to figure out what the client means and it often causes significant confusion between the foreign national, an employer, a school, and the attorney. This is the issue of “visas” and “status”.
The term of art “visa” means a document issued by a US consulate to allow the person to travel to the US and request admission at the port of entry. That is its only use and cannot be used for anything else. It is for travel and to request permission to be admitted.
The term of art “status” is what is given to a person at a port of entry who has requested entry with a visa (except Canadians who are visa exempt but must meet all status requirements). Status is what a non immigrant (and to some extent an immigrant) has while in the US. If my “visa” expires while in the US it does not matter since it is only for travel. If my “status” expires while in the US I am subject to deportation/removal. This is how these words have been used, and are intended to be used, since the current Immigration Act of 1952 was enacted.
Over the past several years there has been an increasing use of the phrase “visa stamp” in lieu of the more simple and accurate “visa”. In fact, the majority of foreign students now use this incorrect and misleading phrase. To make matters worse, there is now a growing use of the phrase “visa status” instead of the proper word “status”.
At first glance this may seem to be a matter of semantics and of little real world concern. I am sure some students and others who use these phases just think lawyers are being hyper technical. In other areas, such as the change and adjust status phrases discussed above, I agree. But not these.
As for semantics, the phrase “visa stamp” is redundant. Section 215 of the Immigration Act requires all visas to in the form of a stamp. But from a substantive standpoint, saying “visa status” raises the question of which one we are referring to: a visa or the status? Since these are just made up phrases out in the blogsphere, we have no way of knowing which made up phrases the person knows and how they might use them.
The most glaring examples of this are found on the blogs which allow people to ask for free legal advice. Invariably the question will concern “my visa status” which requires more questions to figure out whether it is a visa or status question. Employers encounter the same issue since they often are not clear on this distinction and just assume their employee understands his or her own status and can state it correctly. There have been many instances of a panicked employer calling about an employee whose “visa” is expiring today(!). Invariably, this means either the actual “visa” which does not matter since it is only a travel document or in fact it is the status which is expiring because the employee assumed he was ok since his visa is still valid.
A wise person once implored us all to us language as a scalpel and not a sledgehammer. Nothing could be more true than in this example.