CBP Commences Process of Ending the Paper I-94 - Employers and Travelers Beware

It seems innocuous – an anachronistic paper form being replaced by an electronic process. Customs and Border Protection (CBP) started a money saving and security enhancing project to end the issuance of the paper I-94 (arrival/departure) record at air and sea ports (not land) in a staged process starting April 30 http://tinyurl.com/cshmkkx . What’s not to like?

The I-94 is that critical document evidencing the admission period and category of admission at our ports of entry. It is a key document number used in a variety of immigration processes as well as other government agencies, such as the Departments of Motor Vehicles nationwide, to determine eligibility for driver’s licenses and the Social Security Administration in connection with social security card applications. CBP plans to have the paperless process completely implemented by May 21, after a four week transition.

What is the new paperless process?

CBP will stamp the applicant’s passport with an admission stamp stating the date and class of admission, and admission validity period. Those admitted will also receive a flier advising them to go to a new website in order to obtain their I-94 admission number. A video of this process is available at: http://tinyurl.com/c3mp2vw and copy of the flier is attached. As to the exit process for air and sea departures, it will no longer be necessary to return the paper I-94 upon departure after admission, because electronic departure manifests can track this data. Of course, this return process does not cover those being admitted at air or sea ports and departing by land ports or vice versa. We are leaving that conundrum for another day.

So why do employers need to care?

Employers have a new Form I-9 that they must start using on May 7, if they have not already done so. That Form I-9 requires, when applicable, that employees record their admission number in Section 1 and employers, depending on the documentation provided by the employee, record the employee's admission number in Section 2. Just this week, U.S. Citizenship and Immigration Services (USCIS) indicated that information from the passport stamp can satisfy a request on a USCIS form for an admission number. Unfortunately, it is not clear if this option works for Form I-9.

The viewing of the electronic I-94 is deemed by CBP’s new regulation to be a review of the “original” I-94. Of course, employers completing Section 2 of the Form I-9 must timely review originals of the work authorization and identity documents provided by a new employee. Employers can enter the data from a work authorized nonimmigrant employee’s passport to access and print out the I-94 admission record from the new CBP website, if the employer is retaining the Form I-9 support documents. For those employers not retaining I-9 support documents, it appears that viewing the information on the CBP website will equal a view of the original I-94 admission number when required. Let’s hope Immigration and Customs Enforcement and USCIS agree on that with CBP.

Employees who are work-authorized nonimmigrants may need their admission number to complete Section 1 of the Form I-9. In such cases, they will need access to the CBP website for this information unless USCIS clarifies that the passport stamp upon admission is acceptable.

Why do travelers care?

1. Travelers must check the new CBP I-94 website when being admitted under this new electronic system to ensure that their admission category and validity period is correct in addition to their passport information. The consequences of failing to depart timely or an untimely departure from the U.S. can result in potential removal from the U.S. or future inadmissibility to the U.S. In addition, admission in the incorrect category can cause an employee not to be eligible to work in the U.S., for example.
2. Errors in the electronic I-94 may be corrected by CBP. http://tinyurl.com/cgrdsf8. The process requires the employee to go to a port of entry or a deferred inspection site to correct an erroneous admission record. Errors in the USCIS I-94 at the bottom of an I-797 approval notice are to be corrected by USCIS.
3. On the border, the readmission of a traveler with an expired visa pursuant to the Department of State’s visa revalidation regulation at 22 CFR §41.112(d) will be implicated as well. The presentation of the paper record will be replaced by referral to the database for those using the electronic I-94 process.
4. For those entering via the land border, paper I-94s will continue to be issued. Even in the air and sea port environments, the paper I-94 will still be used for certain applicants for admission (e.g. parolees, asylees, etc). CBP needs to provide more guidance for the common issue of what to do when you combine the land entry and exit process with this new electronic I-94 roll out – and for that reason, among others, the “beware” note is necessary.