Employers and employees could face stiff penalties with the government's increased reliance on electronic I-94s

An immigration records change dating back two years has emerged as a significant concern for employers sponsoring foreign national workers.

The Shift to Electronic I-94s and Immigration Overstay Issues

In 2022, U.S. Customs and Border Protection (CBP), an agency of the Department of Homeland Security, scaled back the practice of stamping passports with entry information and instead recorded entry dates and departure deadlines in their system – without providing the traveler a copy. While electronic I-94 arrival-departure records have been in use since 2013, this shift has created a hidden pitfall for many foreign workers. The increased reliance on electronic I-94s has led to a rise in unintentional overstays due to unnoticed discrepancies in authorized stay.

Why This Matters to Employers

Even minor errors on an I-94 can lead to major complications for your foreign worker, including unintentional overstays and difficulties extending or changing their immigration status. The consequences can be severe: a potential three- or 10-year bar on re-entering the U.S. for your employees, and for your organization, potential legal and financial repercussions.

Electronic I-94 Arrival/Departure Record

Noncitizens who enter the U.S. in a temporary immigration status are issued an arrival/departure record known as Form I-94. It may seem insignificant, but for non-immigrant visitors to the U.S. it holds immense weight. In an ideal world, CBP would issue these forms flawlessly every time. Unfortunately, that's not always the case. Even minor errors on an I-94 can lead to significant complications, including unintentional overstays and difficulties extending or changing immigration status. Employers need to be aware of the errors that might occur.

The situation has become even more critical since 2022, when CBP stopped issuing the familiar entry stamps in passports. Previously, these stamps served as a readily accessible reminder of admission class and authorized stay. Today, with the shift to electronic I-94s, the potential for overlooking crucial information has increased.

The period of authorized stay in the U.S. is determined by immigration status. For instance:

• Visa waiver visitors from low-risk countries are granted 90 days without needing a visa;
• B1/B2 business and leisure visitors with visas may receive up to six months;
• Employment-authorized categories typically have a validity period aligned with the underlying petition, for up to three years; and
• Treaty-based visas, like E visas, allow a two-year stay.

During immigration inspection, CBP officers electronically record the admission class and corresponding period of stay in the I-94. Critically, this information isn't readily available on arrival or written on the passport. It's essential to retrieve the I-94 online after each entry to ensure the information accurately reflects the period of stay.

Errors and Discrepancies in Electronically Issued I-94s

Here's a concerning fact: Errors and inconsistencies in I-94 issuance are more frequent than many realize. CBP officers may shorten the authorized stay by issuing an I-94 valid only until the passport expires, even if the visa allows a longer period. Similarly, dependent family members' stays may be unintentionally curtailed to match the principal member's passport expiration. These exceptions aren't always uniformly applied by CBP officers, and the traveler may be unaware of the expiration date.

The most common I-94 errors tend to involve inaccurate biographical information, such as misspelled names, incorrect dates of birth, or even a designation of the wrong visa category. Additionally, there have been instances where a status correction on an I-94 inadvertently resulted in a shortened expiration date.

Safeguarding Your Foreign Workforce: I-94 Verification and Recordkeeping

The takeaway? It's crucial not to underestimate the importance of the I-94 for your foreign workers. Following each entry into the U.S., ensure your employees are vigilant about confirming their electronic I-94 records. Encourage them to meticulously review the information. By staying proactive in this process, you can help prevent potential issues for your foreign workers and ensure smooth operations within your organization.

Employers sponsoring foreign national employees should consider maintaining copies of their I-94s as a valuable safeguard. While not mandatory, it demonstrates the employer's awareness of the employee's immigration status and can be helpful in the event of any unforeseen I-94-related complications. It is also advisable for foreign national employees themselves to prioritize maintaining thorough personal records of their I-94s. Keeping a physical or digital copy readily accessible ensures they can easily verify their authorized stay and avoid any potential issues.

In the unfortunate event of an unintentional overstay due to a missed truncated expiration date, there's an option called Nunc Pro Tunc Request to Reinstate Status. This USCIS process allows for consideration of a late filing of extension of stay or change of status due to extenuating circumstances.

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