Traveling to Mexico while in the U.S. with H4 Visa and returning using Automatic Visa Revalidation

Question

My Wife is here on a H4 Visa, I have a H-1B Visa, we are both Mexican citizens, I have a current stamped H1-B Visa valid till the end of this month(by the time Wife returns my own Visa will be expired if that is relevant), and my Wife has a expired H4 Visa. We both have I-797 with attached i-94s Valid until January 2019. None of the Visas in our passport are with my current employer, but of course our i-797s are with my current employer.

I have asked my company lawyers about this, and researched everywhere online, including the USCIS website, and can't find a good answer. I also have a PERM that was filed a couple weeks ago. As far as I know the PERM has no impact whatsoever on this, but wanted to mention it just in case. I have obtained a proper current employment verification letter for them, and I also have a full copy of my H-1B Visa petition.

We used to have TN Visa, and until then almost every single time we went out of the U.S. we would get a new Visa, because as Mexican citizens we can only get a Visa (either TN or H-1B) valid for up to 1 year because of the reciprocity agreement with Mexico. We learned about this relative new thing called Automatic Visa Revalidation, no lawyer had ever mention this to us, but I have done my research and asked around and I know for a fact it is a real thing.

My Wife intends to travel to Mexico for a period of 28 days, just within the 30 days max for the Automatic Visa Revalidation, however and this is the part that is extremely unclear to me is, if she leaves the U.S. by land (car), how can she prove that she only left for a period of 28 days?. I know with a flight ticket this would be easier, as there is proof of when she left the U.S., but what about leaving by land?, how can she prove that she qualifies for Automatic Visa Revalidation, because she has an expired H4 from my old employer and a current i-797 from my current employer?.

The only thing I could find, is that you could stop in the border before crossing to Mexico and let them know that you are exiting and plan to return using AVR, I read this on some U.S. university website, I really don't think this is a real thing, there is no line or queue with a officer in the border where you could do such a thing as far as I know.

What should we do?.

Answer 1

As an apology for the previous answer, in my defence I'll just note there is a difference between processing of visa-exempt and visa-required entries that always causes me cognitive dissonance. If you are visa-exempt and get an I-797 extending your status, the CBP officer you see on reentry looks at your I-797 and allows you entry based on that; the I-797 behaves like a travel document for practical purposes. If you are visa-required, however, a Department of State officer instead looks at the I-797 and gives you a visa based on that, and the CBP looks at the visa to grant you entry. I'm sure there's a logic to that but I've never quite gotten it.

In any case Automatic Visa Revalidation, and the 30 day limit, applies when your only (travel) status in the US is an unexpired I-94 and you lack whatever you need for a new entry. You get 30 days no matter how you leave the US, but if you leave via a land border they may not record an exit and will only realize you left when you attempt to reenter. In this case, when they know they lack exit data, they generally have no choice but to rely on your own report of when you left, though it is good to try to keep any records (receipts, credit card or ATM transactions, toll payments) that place you in the US on or before the date you report in case the officer is in a mood to dispute what you say. Note that for third-country nationals they apparently do now get exit reports from Canada and Mexico even though they don't appear on I-94 records, so the question of when you left may be more of a truth test, but Canadians and Mexicans crossing their own border may not (yet) get ratted out by their governments so they must ultimately give you the benefit of the doubt when there is one and they have no evidence contradicting you.