Changes To Key Immigration Documents: I-94 And I-9

Wednesday, April 24, 2013 - 14:39

In the coming months there will be changes to two of the most fundamental documents for immigration compliance: the I-94, which is filled out by most foreign nationals (other than certain visitors and lawful permanent residents or LPRs) and serves as evidence of lawful admission to the United States, and the I-9, a form used by employers for verification of work authorization. These forms are undergoing changes with which foreign nationals and their employers must become familiar.   

As part of an effort to reduce costs and enhance accuracy, the Customs and Border Protection agency (CBP) is moving from a paper-based to an automated I-94. While the I-94 may be of little significance to U.S. citizens and LPRs, for most other foreign travelers, the I-94 not only serves as an entry document but as a status document as well.  Foreign nationals must carry the I-94 to show proof of lawful status during the duration of their stay in the U.S.  In addition, the I-94 is an essential document for demonstrating eligibility for certain government benefits, including Social Security cards and driver’s licenses.

Starting April 30, 2013, CBP will begin rolling out the I-94 automated system. For the past 50 years the I-94 has traditionally been filled out by the foreign traveler just prior to arrival at a port of entry, after which CBP examines and stamps the document as part of the admission process, separates the “arrival” portion for the government to keep and returns the stamped “departure” portion to the admitted traveler.  At that point, the “arrival” portion of the I-94 is sent to a contractor for manual data entry. This manual data entry can result in a lag of almost two weeks until the I-94 data is entered into the system. Additionally, the manual data entry costs CBP approximately $12-15 million per year. I-94 holders regularly face challenges with the I-94 paper based system, including being required to pay a replacement fee for a lost I-94. Also, those who lose their I-94  are unable to access government benefits in the interim until they receive their replacement I-94.

The new automated I-94 system is expected to cure that deficiency for most.  It will be rolled out at five ports of entry during the first week of implementation and will be extended to all remaining air and sea ports of entry, including New York and Boston, by the end of May. CBP will continue to issue paper form I-94s at land ports of entry.  Through the new program foreign nationals will be able to access their information online for status verification purposes and employment eligibility purposes, and they will be able to print out their I-94 documentation at CBP.gov/I94. With the new I-94 automated system, a CBP officer will stamp the travel document (typically a passport) of each foreign traveler. The admission stamp will reflect the date of admission, class of admission, and the date the traveler is admitted in the U.S. until his required departure date. Upon arrival in the United States, the foreign national will also receive a flier informing him/her of the I-94 website. With the automated system, the I-94 record will continue to be accessible to various DHS components and systems, and can be presented to other agencies distributing benefits. This program is estimated to save CBP almost $15.5 million a year and is expected to expedite passenger processing.

While the I-94 automated system is a positive process change, it  may still pose challenges during the course of implementation, including issues with agency cooperation, knowledge sharing and challenges in the adjustment of compliance procedures for employers and employees.

Another challenge that non-citizens/LPRs and employers may face is that the new I-9 form repeatedly references the combination of the passport with the I-94 as an acceptable “List A” document to demonstrate identity and work eligibility; it is described as such in the government’s M-274 Handbook for Employers. The I-94 is also needed for many non-immigrant workers to port employers, and difficulties in implementation may cause disruption or time lags for employers and non-citizen/LPR employees.

Another new development of which employers must be aware is changes to the   I-9 form. The I-9 form is required by employers to verify the identity and work authorization of all new hires. The new form has been available for use since March 8, 2013. Changes to the I-9 form include the addition of certain requested information, such as the employee’s telephone and e-mail address and in some instances the employee’s foreign passport information. However, employers should be aware that changes to the I-9 form do not include changes to the forms employers may accept from employees to satisfy the requirements for confirming work eligibility. USCIS recognizes that employers will need time to make adjustments to their compliance procedures and is allowing 60 days for employers to integrate changes to the form into their compliance procedures. Thus, as of May 7, 2013, employers who do not use the new I-9 form will be subject to all applicable penalties.

Changes to the I-94 and I-9 form come during an exciting time of immigration dialogue and possible reform, and reflect the government’s willingness to improve compliance procedures.

Michael D. Patrick is a Partner at Fragomen, Del Rey, Bernsen & Loewy, LLP, resident in its New York office. He may be contacted via email at mpatrick@fragomen.com. Liat Zudkewich a law clerk and Nancy Morowitz, Counsel at the firm, assisted in the preparation of this column. To learn more about Fragomen, please visit http://www.fragomen.com.