Form I-94 is presently issued to most foreign nationals entering the United States in a nonimmigrant status.  The I-94 card governs the foreign national’s period of authorized stay and contains his or her nonimmigrant status, the expiration date of the stay, and a unique identifying number.

On 08/13/2012, CBP announced its plan to eliminate the Form I-94 and replace the card with an automated arrival database.  The change was prompted by the fact that CBP already has access to the data gathered on Form I-94 from nonimmigrant visa applications and from information provided by the Advance Passenger Information System (APIS), a web-based system used by commercial carriers to provide required information regarding notices of arrival and/or departure to CBP. CBP has already eliminated the paper I-9 for individuals entering under the ESTA Visa Waiver program with what has been determined to be a successful transition. One of the main reasons for these changes is a projected major financial savings.  CBP has estimated that eliminating Form I-94 will save approximately $19 million in staffing resources and $17 million in data entry costs. 

In lieu of Form I-94, CBP has proposed issuing an admission stamp in nonimmigrants’ passports.  The admission stamp will include a handwritten notation indicating the nonimmigrant’s status and authorized period of stay.  CBP will create an electronic record for arriving nonimmigrant aliens but CBP does not anticipate creating a receipt or other documentation (other than the stamp in the passport) for the alien.   

CBP has verbally agreed to create a web portal to allow nonimmigrant aliens to verify their status as stored in its electronic format.  The web portal would allow nonimmigrant aliens the option to print an admission record receipt.  CBP originally planned to continue issuing a paper Form I-94 to arriving nonimmigrant aliens, even though the form would have no legal significance.  That is, the control number on Form I-94 would not be a valid number, and it would not be connected to any record relating to the alien.  While it is not certain at this time, it appears that CBP may be planning to issue the paper form, though it will no longer have any actual function, in order to satisfy to terms of 8 CFR §235.1(h)(1), which requires issuance of Form I-94.

Nonimmigrant aliens arriving at air and those sea ports using APIS will no longer receive a functional Form I-94 (although, as noted above, a paper Form I-94 may be issued during a transition period).  Those nonimmigrant aliens arriving at a land border, unless otherwise exempted, will continue to receive a valid paper Form I-94.  In addition, certain classes of arriving aliens, such as refugees, will continue to be issued a valid Form I-94.

As CBP works on this transition, it announced that the current processing time for entering foreign visitors’ travel information into the I-94 database is 30 days or more.  Employers and foreign nationals should be aware that this may cause delays or create issues in one or more of the following contexts:    

Under current rules, the I-94 is used as proof of lawful immigration status in many contexts.  Along with a valid foreign passport, the I-94 is one of the documents used to verify a foreign national’s employment eligibility on Form I-9 and in the E-Verify database.  The employment eligibility and identification process also will be affected by the elimination of Form I-94.  Currently 8 CFR §274a.2(b)(1)(v)(A)(5) authorizes employers to accept a foreign passport and a properly endorsed Form I-94 or Form I-94A as proof of employment eligibility and identification for purposes of completing Form I-9.  Regulations, I-9 instructions, and E-Verify rules will need to be revised to reflect the elimination of Form I-94.

The delay in data entry will not impact the completion of Forms I-9 for most employers since the I-9 information by itself is not verified other than by a review of the document. However, since there is a verification step for E-Verify, it could significantly impact E-Verify enrolled employers. If you are an E-Verify Employer, please note that CBP’s delay in recording Form I-94 information could result in an increase in E-Verify Tentative Nonconfirmations (TNC).  E-Verify uses the information entered into the CBP database to confirm work authorization.  As a result, you may notice an increase in E-Verify Tentative Nonconfirmations (TNC). The delay in recording Form I-94 information should not affect how you complete the Form I-9 or an E-Verify case.

Numerous federal and state agencies use the I-94 to verify whether a foreign national is entitled to certain benefits, including a Social Security number and a driver’s license, among others.  USCIS rules require nonimmigrants to carry the I-94 as proof of their status.  This may cause foreign nationals to experience delays of several weeks or more in receiving Social Security numbers and driver’s licenses. 

Under current procedures, a foreign national’s I-94 information is manually entered into federal government databases after he or she enters the United States.  When the foreign national applies for a Social Security number or driver’s license, the relevant government agency checks the federal I-94 database to verify the individual’s immigration status and eligibility for the benefit.  If an applicant’s I-94 data has not yet been entered into the federal database, his or her status cannot be verified and the benefit application cannot be immediately approved.  The application will remain pending until the I-94 data appears in the federal database and the applicant’s status can be verified. 

There may also be issues with State motor vehicle bureaus.  Many state bureaus initially expressed shock as, apparently, most have created databases that tie nonimmigrant alien status verification to Form I-94.  These states will need to reconfigure databases and retrain state motor vehicle personnel.  In the paperless nonimmigrant alien admission world, it is anticipated that state motor vehicle bureaus will utilize the alien’s passport number and the admission stamp to verify status.  This practice may need to be reconciled with the requirements of the REAL ID Act, which precludes use of a foreign government document to verify an alien’s immigration status. P.L. 109-13 Title II §202(c)(3)(B).

CBP reports that the Social Security Administration already has revised its documentation requirements to allow issuance of Social Security account numbers to qualified nonimmigrant aliens.  A document posted by the Social Security Administration with an effective date of May 21, 2012, addressing employment authorization for nonimmigrant aliens, however, continues to refer to Form I-94 as evidence of employment authorization.  

Many of the petition and application forms promulgated by the U.S. Citizenship and Immigration Services (USCIS) to request immigration benefits, such as Forms I-129, I-130, I-539, etc., ask for a Form I- 94 number.  There are no known plans, however, for USCIS to begin replacing existing forms to reflect this change.  It also is unclear whether USCIS will continue to issue Form I-797, Notice of Action, approving an application for change or extension of status with a Form I-94, and if so, whether the form number will be connected to the actual record of admission.

It is not yet clear how elimination of the I-94 will affect these critical procedures and requirements. Though CBP has for some time been meeting with interested government agencies about its automation program, specific plans to revise regulations that currently require Form I-94 are not yet known.

Jackson & Hertogs will immediately provide updated information as to how the elimination of the I-94 will affect other agencies and provide guidance as soon as it is available. In light of this transition, it is important for foreign nationals to be mindful that a Form I-94 should be issued upon entry to the U.S.

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