Annual Reminders for Individuals – Check I-94 Expiration Dates

Each year, foreign nationals should double-check important dates related to their immigration statuses. Many aspects of immigration law are tied to expiration dates, grace periods, filing deadlines, and other date-driven matters. It is vitally important to keep informed and on top of important calendar items and timelines specific to one’s immigration process. Many serious problems can be avoided by taking this simple step, combined with appropriate advance planning.

I-94 Expiration Dates for Nonimmigrants

Perhaps the most important date an individual in nonimmigrant status needs to bear in mind is the expiration date on the I-94. In most situations, the I-94 reflects how long a person is permitted to stay in the United States, provided that s/he complies with the terms of his/her status. Individuals typically need to plan to depart the United States before the I-94 expires, or else make a timely request to change or extend status.

The I-94 expiration date generally is set by a Customs and Border Protection (CBP) officer at the U.S. port of entry (POE), or by an officer at the U.S. Citizenship and Immigration Services (USCIS), who has issued an I-94 card attached to the bottom of an I-797 approval notice after granting an extension or change of status from within the United States. For many years, an individual admitted at a POE would find a small, white card stapled to the inside of her/his passport upon entry to the United States. The process is now paperless. The CBP officer places an entry stamp inside the passport with a handwritten expiration date.

To obtain the actual CBP I-94 information, it is necessary to log into the Admission (I-94) Number Retrieval page on the CBP WebSite. Travelers are urged to review their CBP I-94 information shortly after arrival to verify their allowed period of stay and identify any errors. Additional details about these I-94s are available in the MurthyDotCom NewsBrief, Automated I-94 FAQs (24.May.2013). It is important to also keep in mind that the online CBP information only contains arrival and departure records, including details of the electronic I-94 issued at the time of entry. It does not necessarily reflect one’s current status. This was covered in the May 13, 2015 MurthyDotCom article, Online I-94 Information Useful, but Only for Entry / Exit Information (13.May.2015).

Identify and Address I-94 Errors

Occasionally, the CBP or USCIS may make mistakes when issuing I-94s. An incorrect expiration date may be provided, or the wrong class of admission may be inputted. These errors need to be promptly identified and corrected. Even if it appears the government’s entry of an erroneous expiration date works in the favor of the foreign national, such an error should not be relied upon. Any expiration date that extends beyond the period the individual is legally eligible to remain in the U.S. should not be ignored. Rather, the foreign national needs either to have the I-94 corrected, or, at the very least, to obtain competent legal advice on how best to proceed. The MurthyDotCom NewsBrief, Emerging Issues with I-94 Card Automation, (15.Jul.2013) examines some of the mistakes that tend to occur on I-94s and the steps that can be taken to correct them. Additionally, in 2015, the CBP announced a pilot program for correcting I-94s by eMail. This is covered in the MurthyDotCom article, (08.Apr.2015) Pilot Program for eMail Corrections of Online I-94 Cards. While that pilot program has ended, it should be noted that the CBP is willing, in some limited instances, to correct their I-94 errors based upon eMail request.

Visas Are Travel Documents; I-94 Cards Reflect Status

It is important to remember that the expiration date on a person’s visa “foil” (commonly referred to as a stamp) and the expiration date of the I-94 are not necessarily the same. The visa is only an entry document. The period one is actually allowed to remain in the United States generally is indicated on the I-94. For example, a person might be issued a 10-year, multiple-entry visitor (B-2) visa by a U.S. consulate. However, in most situations, s/he is only granted entry for six months, as reflected by the expiration date on the I-94. Overstaying the date on the I-94 can have serious consequences.

Extension or Change of Status – Don’t Forget Derivative Family Members

In most situations, each nonimmigrant who enters the United States is issued an I-94. Accordingly, when a family enters the United States together (such as an H1B worker who is accompanied by her husband and child), each I-94 must be checked for accuracy, and the status of each individual must be maintained. Extending the status of the principal H1B worker does not automatically extend the status of the dependent family members.

Failure to do something as simple as verifying that each family member remains in valid status can sometimes have catastrophic results. As explained in the MurthyDotCom NewsBrief, Murthy Success Story: H-4 Nunc Pro Tunc Reinstatement, in some situations, it is possible to ask the USCIS to use discretion and provide relief for this type of oversight. The USCIS has immense discretion in approving or denying such requests, however, so these types of stories do not always have happy endings. And, needless to say, it is much easier and cheaper to be proactive to avoid such problems, than it is to attempt to correct them after the fact.

Amendments Required for Many H1Bs

Even if one’s H1B I-94 is unexpired, it is important to be mindful of requirements for filing H1B amendments for material changes, including many worksite changes. Specifically, on July 21, 2015 the USCIS issued a policy memorandum with final guidance on when employers need to file an amended H1B petition. The memo followed the Administrative Appeals Office (AAO) precedent decision in Matter of Simeio Solutions, LLC, discussed in the MurthyDotCom NewsBrief Final USCIS Guidance on H1B Amendments for Worksite Changes.

H1B employers must now file an amended H1B petition if a new labor condition application (LCA) is required due to a change in the beneficiary’s place of employment. Such changes are considered to be material. An employer’s failure to comply with these requirements can have serious consequences for both the employer and the employer’s H1B employees. As a successful amendment results in the issuance of an updated I-94, H1B employees should check their I-94s to make sure that they were updated through amendment filings, if required.

Conclusion

In short, foreign nationals should take just a few moments to review their I-94s and ensure that the information listed is correct. This quick and easy step can help in avoiding serious future problems. Questions about one’s status or errors on an I-94 can be addressed by consulting with a Murthy Law Firm attorney.

 

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Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.