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I-94 no more? Update on Plans to Eliminate the Arrival/ Departure Record Form

The proposal of Customs and Border Protection (CBP) to eliminate the paper I-94 form may create unintended consequences and numerous problems for foreign nationals in the United States. This blog entry explains what the I-94 is, why it is important, and why it may be sorely missed by foreign nationals and their employers.

What is the I-94 Form? If you have travelled to the USA by air in a non-immigrant category (e.g. a tourist) in the past, you will have been handed a green or white sheet of paper by your flight attendant to fill out before landing in the USA. The green sheet (the I-94W) was handed to travellers without a visa (nationals of countries participating in the Visa Waiver Program), while the white sheet (the I-94) is for travellers with a visa. Last year, the paper I-94W was eliminated.

The importance of the I-94: Travellers to the US present the I-94 card when they clear immigration upon entry into the US. The immigration officer notes certain information on the card, the most important being the status expiration date. It is this date which determines when a person must leave the US, rather than the expiration date of that person's visa. For instance, someone might have a 5 year traveller's visa and an I-94 which notes an allowed stay in the US for 6 months. This person will have to leave the USA at the end of the 6 months permitted on the I-94 rather than the longer 5 year period specified by the visa. If a person does not, they will be overstaying their visa and the consequences can be significant, including but not limited to a possible bar from entering the USA for 3 or 10 years depending on the length of overstay.

The 'Arrivals' portion was kept by US Customs and Border Protection, while the 'Departure' portion was stapled into the person's passport and had to be surrendered when the person left the US. A foreign national needs the I-94 for many practical reasons in the US, from proving an ability to legally work in the US, to obtaining a Social Security Number or Driver's License, as well as extending their visa or changing to a different visa category. The elimination of I-94W has side-stepped many of these issues because, unlike foreign nationals who receive an I-94, I-94W card holders are in the USA for a short amount of time, are not permitted to work or change to a different visa category, and therefore have a significantly reduced need to file applications which require the I-94W card.

CBP has announced plans to eliminate the I-94 and replace the card with an automated arrival database. The reasons for this proposal are the significant financial savings (some $19 million in saved staffing resources plus $17 million data entry costs) and the fact that CBP already has access to the information on the I-94 through an electronic database into which US Embassies input information when a visa is granted and into which airlines input passenger information via the Advance Passenger Information System (APIS). Instead of receiving an I-94 card, passengers will receive a stamp in their passport with handwritten information indicating, inter alia, the authorised period of stay. During the transition period, CBP may still issue I-94 cards, but it is unclear where and under circumstances this will occur.

How may the elimination of the I-94 card affect foreign nationals? Although planning is on-going in order to minimise disruption, elimination of the I-94 paper card may have several adverse consequences for foreign nationals and their employers. They include:

  • Potential for an inaccurate authorised stay recorded in the passport: Under current proposals, the CBP officer notes the authorised period of stay in the electronic database and is supposed to handwrite the same into the foreign national's passport. It is inevitable that human error will occur in some cases where the date entered in the passport will not match the database authorised stay date (the latter of which is controlling). When this happens, the foreign national will be misinformed about when (s)he must depart the USA without an ability to double check the accuracy of the handwritten date, potentially resulting in visa overstay with its drastic consequences. This concern will be ameliorated to the extent that CBP follows through on its agreement to consider allowing foreign nationals to electronically access their arrival/ departure information and print off a copy.
  • Filing US Citizenship and Immigration Services (USCIS) forms: When a foreign national wishes to extent or change his/her non-immigrant status, one of USCIS' requirements is the filing of the I-94 card.
  • Obtaining a social security number: The Social Security Administration requires the I-94 card in order to determine a foreign national's eligibility for a social security number.
  • Obtaining a US driver's license: Among other requirements, the Department of Motor Vehicles in many states requires the production of a valid I-94 card for the issuance or renewal of a driver's license issued to a non-immigrant visa holder.
  • Employment eligibility verification: Form I-9 must be used by all US employers to verify an employee's employment eligibility. Foreign nationals working in the US pursuant to a non-immigrant visa show they passport and unexpired I-94 to establish their eligibility for employment. The lack of an I-94 card may create confusion and difficulties for both foreign employees and their US employers.

The American Immigration Law Office will continue to monitor these changes and update affected clients as these changes go into effect.