Burr & Forman

09.7.2021   |   Blog Articles, Immigration Law Insights, Worksite Compliance - I-9 and E-Verify

Avoiding Shortened I-94s for Foreign Workers

The Form I-94, Arrival/Departure Record is a document U.S. Customs and Border Protection (CBP) issues to all persons entering the United States except U.S. citizens, returning Legal Permanent Residents, and immigrant visa holders. It is important that nonimmigrants keep track of their I-94 record because it controls how long they can remain in the United States. For nonimmigrant workers, CBP officers typically issue an I-94 to match the period of immigration status approved by U.S. Citizenship and Immigration Services (USCIS). However, there are instances where an I-94 will be issued with a shorter validity date than expected, and overstaying a shortened I-94 can have significant immigration consequences.

Passport Expiration

According to the Immigration and Nationality Act (INA), any nonimmigrant that does not possess a passport that is valid at least 6 months beyond the planned length of stay in the United States is inadmissible. When a nonimmigrant applies for a visa stamp and possesses a passport that is expiring soon, it is at the discretion of the Consular Officer whether to issue the visa. Consular Officers are instructed to “urge the applicant to have the passport extended, renewed, or replaced before visa issuance,” but can still issue the visa for the entire validity period. Although a nonimmigrant with an immediately expiring passport may receive their visa for the full eligibility period, CBP officers often shorten the length of the I-94 record to the expiration date of the passport upon entry.

Nonimmigrants entering the United States should always check their I-94 record online. If a shortened I-94 is issued and the nonimmigrant remains in the United States past its expiration, the foreign national could unknowingly begin accruing unlawful presence and become subject to a bar from admission to the United States. Foreign nationals are barred from admission to the United States for three years if they accrue between 180 days and one year of unlawful presence.  Those accumulating more than one year of unlawful presence face a ten-year bar.  A Nunc Pro Tunc (Latin for “now for then”) petition can be filed to retroactively correct an overstay; however, approval largely falls within USCIS’ discretion.  There have been many instances where USCIS refuses to approve a petition to correct an overstay when the foreign national was simply inattentive to a shortened I-94.  To avoid issues, nonimmigrant workers and their employers should closely monitor both I-94 and passport expirations.

CBP Error

Occasionally, a CBP officer may issue an I-94 record with a shortened validity period by mistake. If a nonimmigrant believes they mistakenly received a shortened I-94, they should contact a CBP deferred inspection office as soon as possible. There are numerous deferred inspection offices throughout the United States. CBP is typically responsive in fixing I-94 errors. If CBP issues an I-94 that is for a longer period than permitted by law (i.e. H-1B 3-year validity period), the nonimmigrant should also reach out to the deferred inspection office to have the I-94 corrected. Many points of entry have an email address dedicated solely to fixing I-94 issues.

Burr & Forman’s Immigration Team works closely with employers to anticipate and remedy I-94 expiration issues.  If you require assistance with immigration-related matters, contact Melissa Azallion Kenny (MAkenny@burr.com); Anna Scully (Ascully@burr.com); Miya Moore (MMoore@burr.com); or Jon Eggert (JEggert@burr.com) on the Burr & Forman LLP Immigration Team.

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