Murthy Success: Lawsuit Results in I-94 Correction and Unlawful Presence Erased

The Murthy Law Firm often assists foreign nationals in fixing an erroneously issued I-94 card. In the years since U.S. Customs and Border Protection (CBP) replaced the paper I-94 card with an online I-94 system, we have noticed a significant increase in instances of people failing to realize their I-94s had expired. This can lead to serious immigration problems; but, as exemplified in this article, there may be ways of resolving status issues – even if cases where the U.S. Citizenship and Immigration Services (USCIS) has denied an initial request for relief. This Murthy Law Firm client graciously granted us permission to share his story to help others who may be facing a similar situation.

I-94 Shorted Based on Passport Expiration Date

Prior to contacting the Murthy Law Firm, our client realized his I-94 had expired more than 180 days prior, but less than 365 days. This occurred because, even though his H1B petition was still valid, when he last entered the United States, his I-94 expiration date was shortened to match the expiration date of his passport.

Through his employer, he filed an H1B extension with the U.S. Citizenship and Immigration Services (USCIS) and also made a nunc pro tunc (NPT) request. As discussed in the MurthyDotCom NewsBrief, Filing a Nunc Pro Tunc Request to Reinstate Status in the U.S. (01.Feb.2018) NPT is a discretionary remedy by which the USCIS may approve a late filed request to change or extend status. Unfortunately, the USCIS denied the NPT request, so the foreign national left the U.S., resulting in him being subject to a three-year bar to reentry. See the MurthyDotCom InfoArticle, Differences Between: Lawful Status, Period of Authorized Stay, & Unlawful Presence (19.Apr.2022) for more information on unlawful presence and the three-year bar.

Murthy Takes Case to Federal Court

After departing the U.S., the foreign national contacted the Murthy Law Firm to see what options he may have to resolve this matter. We recommended escalating the matter to federal court.

In general, it is true that, unless a person has a passport valid for six (6) months after the requested status expires, CBP will not admit a foreign national worker beyond the passport expiration date. In the lawsuit we filed with the court, however, we presented evidence this rule does not apply in situations where an H1B worker or H-4 dependent family member is returning from a trip abroad. While CBP has discretion to decide if someone is admissible to the U.S. in H1B status, once CBP has agreed to admit the H1B worker, the I-94 expiration date is to be determined by the H1B approval notice, not the passport expiration date.

Government Fails to Have Case Dismissed on Technical Grounds

The government filed a motion to dismiss on two grounds. First, the government argued our client lacked legal standing to challenge the decision. Second, the government asserted the court did not have the authority to review the decision by CBP to admit the worker to his passport expiration date.

We successfully refuted both arguments. The court agreed that our client did suffer an “injury-in-fact” and therefore had standing. The ruling underscored that, even though it was the beneficiary, rather than the employer, who was suing, our client was someone whose legal status and opportunities were directly impacted by the government’s decisions. The court elaborated that the injury was personal and particular arising from a concrete loss of opportunities due to three-year bar to admission.

The court also agreed with our argument that CBP had no discretion to limit the I-94 expiration date to the passport expiration date under our client’s circumstances. Once the government’s motion to dismiss was denied, the government saw no choice but to settle the case. Per the settlement agreement, our client’s I-94 card expiration date was changed to his H1B approval notice’s expiration date. This retroactively eliminated his unlawful presence and his three-year bar.

Conclusion

Despite all the obstacles, the worker never gave up fighting. The Murthy Law Firm is thrilled to have assisted him in achieving this successful outcome. Nevertheless, checking your I-94 card online after you enter the U.S. is important to avoid such problems. It is important to keep in mind that, even when facts of a case are almost identical, seemingly small differences can have an outsized impact. There is no guarantee of a successful outcome, as each case is different. The Murthy Law Firm works hard to keep families together and to help families achieve their American dream of living and working in the United States.

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