On Thursday, March 21st, US Customs & Border Protection announced that the agency had submitted a rule for publication in the Federal Register to automate the issuance of the Form I-94 Arrival/Departure Record Card.  This interim rule becomes effective April 26, 2013.  This rule was issued unilaterally and with limited possibility for public comment.

What is the I-94 Arrival/Departure Card?

The Form I-94 has been used for approximately 50 years by the Department of Homeland Security (DHS), its predecessor agency the Immigration and Naturalization Service (INS), and many third parties for a variety of purposes.  The Form I-94 is currently a paper form and is issued by US Customs and Border Protection (CBP), a component of DHS, to certain aliens upon lawful arrival in the United States or when changing status in the United States.  The Form I-94 is used to document arrival and departure, lawful admission, and evidence of the individual’s approved length of stay and the terms of admission.  The individual keeps the I-94 Card as the official record of admission and permission to remain in the US.  The importance of this card is paramount to maintenance of an individual’s immigration status.  When departing the US, an individual must surrender his I-94 card except if travelling to Canada, Mexico, or contiguous islands other than Cuba for a period not to exceed 30 days, in which case the individual may be able to use an unexpired I-94 Card to reenter the US.

The I-94 card and a visa stamp are two separate documents.  A visa stamp is issued to an individual by a US consular officer outside of the United States.  Having a valid visa does not necessarily guarantee entry into the United States. The CBP has the authority to grant or deny admission to the United States, and only the CBP officer has the authority to determine how long an individual may remain in the United States. This is why the I-94 card is the most important document for foreign nationals entering the United States and why automation is a significant change for the United States.

Why Automation?

The advantage of this new system is “time management.”  Automation will eliminate most of the duplicative paper Form I-94 process and reduce wait times at immigration processing which will facilitate entry of all travelers.  Automation of the I-94 will increase efficiency and streamline the admission process," said CBP Deputy Commissioner David V. Aguilar.  "Once fully implemented, the process will facilitate security and travel while saving CBP an estimated $15.5 million a year."  More importantly, CPB estimates all foreign travelers will save, on average, eight minutes spent  filling out the paper Form I-94 and those who lose the Form I-94 will save the $330 fee and 25-minute time burden for filling out the Form I-102 to replace a lost I-94 card.

With these new technologies in place, CBP no longer needs to collect Form I-94 information as a matter of course directly from the passengers.  CBP will create an electronic Form I-94 based on the information in its databases.  Following 9/11, CBP implemented the Advance Passenger Information System (APIS) which collects information on aliens traveling by air or sea to the United States electronically from carriers before arrival.  CBP also now uses the Arrival and Departure Information System (ADIS), which draws information from APIS, to document an alien's arrival and departure electronically.  Because CBP does not currently collect advance travel information from aliens arriving by land, this automation will not apply to land ports of entry at this time.    Visa information has long been made available to CBP by the Department of State via the Consular Consolidated Database (CCD).  Thus, CBP obtains almost all of the information contained on the paper Form I-94 electronically and in advance.  It is essential, therefore, to complete consistently and correctly all biographical information at the time of making travel plans.

How will an individual access his I-94?

In order to make this a seamless transition, CBP is making the electronic Form I-94 available to aliens through a web site: www.cbp.gov/I94 which will be activated at the end of April.  To access the Form I-94 through the web site, the traveler will need to input information from his passport; a third party without access to the traveler's passport will not be able to access the Form I-94 from the web site.  If needed, aliens may print out a copy of the Form I-94 from the web site and present it to third parties.  The printout from the web site will be the functional equivalent of the departure portion of the paper form with the same information as the departure portion of the paper form.

CBP will continue to stamp the traveler's passport at the time of inspection and admission or parole and will annotate the stamp with the class and duration of admission or parole.  Individuals who go through secondary inspection, such as asylees, refugees, and parolees, will be provided a paper copy of Form I-94 by a CBP officer.

What are the Concerns?

Individuals use the Form I-94 for many purposes such as completing employment eligibility verification, Form I-9, applying for immigration benefits, or to present to a university to verify eligibility for enrollment.  The Form I-94 is also necessary for confirming employment authorization for employers participating in USCIS's E-Verify program, or verifying immigration status for benefit-granting state and federal government agencies participating in USCIS's Systematic Alien Verification for Entitlements (SAVE) program.  The Form I-94 is also used by the Social Security Administration (SSA), state agencies, such as Departments of Motor Vehicles (DMV), and public assistance agencies and organizations, to verify eligibility for benefits.

As we recently informed you in our Alert, Form I-9 Revised: The Most Complicated Two-Page Form, USCIS released a revised Form I-9 on March 8, 2013.  However, the USCIS failed to reference any mention of the I-94 automation process that CBP was about to implement.  Employers may be spending a great deal of effort and time training HR personnel in connection with I-9 compliance.  The I-94 card has traditionally been a vitally important document in connection with the I-9 process.  Eliminating the Form I-94 from immediate possession of the nonimmigrant employee will create concerns about properly completing Form I-9 in the required period of time.  Employers may also need to establish protocol with employees to access the CBP website on their behalf which may trigger a host of other legal issues such as privacy, discrimination, etc.

University officials have expressed a key concern relating to the Student and Exchange Visitor Information System (SEVIS) record.  SEVIS is a nationwide, internet-based system that the US government uses to maintain accurate and current information on non-immigrant students (F and M visa), exchange visitors (J visa), and their dependents (F-2, M-2, and J-2).  Often students will have more than one SEVIS record and the CBP annotates the I-94 card to indicate which SEVIS record data is connected to the student’s latest entry.  Without this information, school officials will be unable to activate the correct SEVIS information.  To resolve these and other issues, the school officials will have to rely on the DHS SEVIS help desk to request a confirmation or a data fix.  DHS should expect an increase in inquiries from university officials once the automated I-94 system is implemented.

The automation may be a time and money saver for the CBP, but the trickle-down effect will likely be costly for other agencies which are dependent on the Form I-94 information to perform a variety of services for the public and confusing for employers.

Conclusion

The Form I-94 automation highlights the significant amount of information gathered through multiple government databases.  The government is strengthening its enforcement tools and employers need to be aware that the regulations addressing immigration enforcement and employment verification through both E-verify and Form I-9 compliance will continue to be a focus for this and probably future administrations.  Expanding immigration enforcement programs is clearly a current priority.  Employers must respond in turn by giving their full attention to compliance issues.