I have previously written that Customs and Border Protection (CBP) is chomping at the bit to automate the I-94 process. Well, they’ve done it. A notice in the Federal Register last week announced an interim final rule (IFR), which will be effective April 26, 2013. The IFR, “Definition of Form I-94 to Include Electronic Format” is the first step in the automation process, with the end game being the elimination of the paper I-94 card foreign nationals receive when they seek admission to the United States.
Who does this IFR apply to and why should you care as an employer?
- Putting aside foreign travellers coming to the United States to visit one of our great national parks, this will impact temporary foreign workers coming to the United States in H-1B, O-1, L-1, etc. status if they arrive by air or sea.
- The I-94 card is used for a variety of purposes, including completing the Employment Eligibility Verification form (Form I-9), applying for a driver’s license with DMV and other situations in which a foreign national is seeking a government benefit.
What will happen?
- When a foreign traveler enters the United States they will no longer receive a paper I-94 card if entering by air or sea. Instead they will be directed to a website — www.cbp.gov/I94 — which is as of today’s date not yet operational. This website will be where they will be able to print out an electronic Form I-94.
- The above referenced electronic Form I-94, according to the IFR, is the “functional equivalent” of the paper I-94 card.
As an employer what can you expect with I-94 automation?
For Form I-9 and employment purposes, the electronic Form I-94 would be used for purposes of completing List A of the Form I-9. Therefore, an H-1B worker would typically present a foreign passport and a small, white paper I-94 card. Due to automation, that same H-1B worker will no longer have a small white I-94 card affixed to their passport but will instead have a computer generated printout of their I-94 card. The printout, as I stated earlier and according to CPB, is the “functional equivalent” of the paper Form I-94 and can be used for purposes of the Form I-9 (see pages 18460 and 18461 of the IFR).
However, having said that, CBP isn’t completely doing away with the small, paper version of the I-94 card and so as an employer it is entirely possible that you will continue to see the small version of the I-94 card (for an example see page 60 of the M-274) as well as the computer generated printout version. Situations in which you would see the traditional paper I-94 card as shown in the current version of the M-274 would include for those entering by land, refugees, asylees, parolees and whenever else CBP feels like issuing a paper Form I-94 at a port of entry.
So…happy I-9 completions!