I-94 Automation and the I-9 Process: Making the Form I-9 More Complicated

by Sheppard Mullin Richter & Hampton LLP

This spring U.S. Customs and Border Protection (CBP) began implementation of a phased in Form I-94, Arrival/Departure Record, automation process. The Form I-94 is issued to all visitors entering the U.S. and assists CBP in tracking temporary non-immigrants, visa overstays, and other relevant information concerning foreign nationals entering the U.S. The new program created a paperless admission process with the ultimate goal of eliminating the paper I-94 card for foreign travelers. The automation enables CBP to organize admission data for sea and air entries easily and accessibly, saving an estimated $15.5 million per year in related costs (not from a reduction in paper). While the effort to move to an electronic system should be commended, the new system may make life a bit more complicated for employers sponsoring foreign workers due to the requirements of the Form I-9, Employment Eligibility Verification Form process. Travelers, with the exception of asylees and refugees who will continue to receive paper Form I-94 cards, will now receive an admission stamp together with a tear sheet providing instructions on how they may access and print their electronic Form I-94 by visiting www.cbp.gov/I94.

How will I-94 automation impact the Form I-9 Employment Eligibility Verification process?

For those employees entering the United States to work for a sponsoring employer, current Form I-9 instructions state that the individual must present his/her foreign passport and I-94 card for recording List A document information. With the new system, however, workers will need to go online to retrieve their I-94 numbers and present employers with their foreign passport and I-94 printout from the CBP Website. Based on our conversations with U.S. Citizenship and Immigration Services (USCIS), it appears that the Service will accept either the paper I-94 card or the printout of the I-94 for Form I-9 purposes in combination with the employee’s foreign passport. Employers collecting an I-94 printout should record it as an “I-94” for Form I-9 purposes, with the issuing authority as “CBP” and the document number and expiration date taken from the printout itself.

In addition, CBP will issue Form I-94 cards to refugees, asylees, and parolees with preprinted numbers on the documents that have been crossed out. CBP officials will hand write the valid admission number on the I-94 card. When completing a Form I-9 for an employee with a paper Form I-94 with a crossed out number, be sure to record the handwritten admission number in Section 2 of the Form I-9 if that employee presents his or her I-94.

Making the process more confusing, the new Form I-9 requires employees to know which government agency issued the I-94 number: USCIS or CBP. If CBP issued the employee’s I-94 number, the employee must complete Section 1 of the Form I-9 with an I-94 number instead of an Alien Registration/USCIS Number and must complete the Form I-9 with their admission number, foreign passport number and country of issuance. Generally, CBP will issue the Form for visitors entering through a land or sea port of entry. However, if USCIS is the government entity that issued the I-94 admission number “N/A” should be entered by the employee for the foreign passport number and country of issuance and the employee should record his/her Form I-94 admission number in Section 1 of the Form I-9. USCIS will issue the Form when there is a change, amendment, or extension of an employee’s status in the United States.

Issues with the Automated System

Some employers have already encountered issues with this new system, as not all new hires have been able to access their I-94 information from the online system. After speaking with CBP officials, it appears that this mainly is occurring when employees enter the country and then begin work almost immediately after entry. CBP is working to correct the problem. In the meantime, employers processing Form I-9 paperwork for new foreign national hires with electronic I-94 documents should use caution when completing the Form and should document the reason for any delays in processing if they are due to errors with the new government system. Completing the Form I-9 paperwork should not be delayed under any circumstance, as late completion could expose a company to liability. In addition, employees with issues accessing their I-94 information should call CBP at 1-877-221-5511 and inquire into their case status and the reason for the delay. Calls to USCIS inquiring into what employers should do in this situation were met with the same response.

If CBP is unable to provide the information for a new hire, the employee may want to consider adding a note to the Form I-9 in Section 1, explaining “No I-94 number available due to a government system issue.” The employee should be reminded to call CBP and continue to check the I-94 website. After the employee’s information is loaded to the system and the employee receives the I-94 number, Section 1 should be amended to include the I-94 number with the appropriate initial and dating. In Section 2 of the Form I-9, the employer should record the foreign passport information and the I-94 stamp information. In the “document number” field, the employer should indicate “I-94 number pending.” Upon receipt of the I-94 printout, the Form should be amended to include the appropriate I-94 number and should be initialed/dated by the employer.

Hopefully the issue of lag time between the entry of data and employee’s first day of work will be remedied by CBP in the coming weeks, but until then be sure that your company has a policy for addressing the situation and that the policy is applied consistently to all foreign national workers.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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