AILA CBP Liaison Practice Alert: CBPs Plan to Eliminate Form I-94 AILA CBP Liaison Committee August

13, 2012 United States Customs and Border Protection (CBP) has announced plans to eliminate Form I-94, Arrival/Departure Record (AILA Doc. No. 12020166).1 Given the central role of Form I-94 in documenting proper admission and maintenance of status, the impact of its elimination on the immigration process and ancillary benefits programs may be profound. Regrettably, there remain as many questions as answers about how CBP will administer the admissions process without Form I-94 and how other entities ranging from U.S. Citizenship and Immigration Services (USCIS) to state motor vehicle bureaus will adopt benefit application procedures. CBP has shared some key points, however, which are summarized below. Reasons for Eliminating Form I-94 CBP cites two reasons for eliminating Form I-94. Firstly, CBP already has access to the data gathered on Form I-94. Aliens provide the information when submitting an application for a nonimmigrant visa at a U.S. consulate. In addition, information is provided to CBP through the Advance Passenger Information System (APIS). APIS is a web-based system used by commercial carriers and the private aviation community to electronically provide required information to CBP such as, inter alia, notices of arrival and/or departure and traveler manifests (crew and passenger). Secondly, CBP expects to save time and money through the elimination of Form I-94. CBP has calculated the cost and manpower required to print, store, distribute, gather, and enter data specified on the form. CBP reports that about 30 seconds of officer time per entry relates to the paper form, which results in annualized costs to CBP amounting to approximately $19 million for associated staffing resources. In addition, CBP Office of Field Operations (OFO) pays to mail Forms I-94 collected by the airlines to a contractor, which is paid $17 million per year to enter the departure data. Given these operational and financial incentives, CBP is accelerating its plans to eliminate Form I-94. Originally, CBP planned to gradually roll out the elimination of the form starting in late summer 2012 with a pilot program at a few smaller airports. However, current plans call for imminent, system-wide elimination of the form. Proposed Admission Procedures CBPs plans call for issuing an admission stamp in the passports of nonimmigrant aliens. The stamp will include a handwritten notation indicating the status and authorized period of stay, similar to procedures now utilized for travelers under the Visa Waiver Program. According to an August 2012 CBP Travel Update on I-94 Data Entry Notice, CBP will create an electronic record for arriving nonimmigrant aliens,

AILA CBP Liaison Q&As (11/9/2011), AILA Doc. No. 12020166, http://www.aila.org/content/default.aspx?bc=1016|6715|6721|9826|38408

AILA InfoNet Doc. No. 12081352. (Posted 08/13/12)

but CBP does not anticipate creating a receipt or other documentation (other than the stamp in the passport) for the alien (AILA Doc. No. 12080841). 2 AILA expressed the concern that nonimmigrant aliens would have no way to verify that the information handwritten on their passports accurately reflect the data electronically captured by CBP upon admission. Through AILA liaison efforts, CBP verbally agreed to consider creating a web portal to allow nonimmigrant aliens to verify their status as stored in its electronic format. The web portal would allow nonimmigrant aliens the option to print an admission record receipt. CBP originally planned to continue issuing a paper Form I-94 to arriving nonimmigrant aliens, even though the form would have no legal significance. That is, the control number on Form I-94 would not be a valid number, and it would not be connected to any record relating to the alien. While it is not certain at this time, it appears that CBP may be planning to issue the paper form, though it will no longer have any actual function, in order to satisfy to terms of 8 CFR 235.1(h)(1), which requires issuance of Form I-94. The issue of whether CBP, by implementing this change, is bypassing the public notice and comment procedures required to change the Code of Federal Regulations, however, is beyond the scope of this advisory. Locations where Form I-94 will be eliminated Nonimmigrant aliens arriving at air and those sea ports using APIS will no longer receive a functional Form I-94 (although, as noted above, a paper Form I-94 may be issued during a transition period). Those nonimmigrant aliens arriving at a land border, unless otherwise exempted, will continue to receive a valid paper Form I-94. In addition, certain classes of arriving aliens, such as refugees, will continue to be issued a valid Form I-94. Impact on other programs At this time, one can only speculate about the practical consequences of CBP creating an electronic record of admission that is not automatically shared with nonimmigrant aliens while simultaneously furnishing paper Forms I-94 that have an invalid number unrelated to an aliens actual record of admission. The training challenges within CBP alone are daunting. For example, it remains unclear how CBP officers will administer the Automatic Visa Revalidation provisions of 22 CFR 41.112(d), which, in limited circumstances, specifically allow a nonimmigrant alien seeking readmission to the U.S. from a contiguous territory after an absence not exceeding 30 days to be admitted upon presentation of, inter alia, a valid Form I-94. Many of the petition and application forms promulgated by the U.S. Citizenship and Immigration Services (USCIS) to request immigration benefits, such as Forms I-129, I-130, I-539, etc., ask for a Form I94 number. CBP has indicated that it is in communication with USCIS about its plans to eliminate Form I94. There are no known plans, however, for USCIS to begin replacing existing forms to reflect this change. It also is unclear whether USCIS will continue to issue Form I-797, Notice of Action, approving

CBP Travel Update on I-94 Data Entry Notice, AILA Doc. No. 12080841, http://www.aila.org/content/default.aspx?docid=40845

AILA InfoNet Doc. No. 12081352. (Posted 08/13/12)

an application for change or extension of status with a Form I-94, and if so, whether the form number will be connected to the actual record of admission. The employment eligibility and identification process also will be affected by the elimination of Form I94. Currently 8 CFR 274a.2(b)(1)(v)(A)(5) authorizes employers to accept a foreign passport and a properly endorsed Form I-94 or Form I-94A as proof of employment eligibility and identification for purposes of completing Form I-9. Regulations, I-9 instructions, and E-Verify rules will need to be revised to reflect the elimination of Form I-94. CBP reports that the Social Security Administration already has revised its documentation requirements to allow issuance of Social Security account numbers to qualified nonimmigrant aliens. A document posted by the Social Security Administration with an effective date of May 21, 2012, addressing employment authorization for nonimmigrant aliens, however, continues to refer to Form I-94 as evidence of employment authorization (AILA Doc. No. 12060554). 3 In an open-forum format in February 2012, CBP engaged with state motor vehicle bureaus, among other interested parties, to discuss the coming elimination of Form I-94 (AILA Doc. No. 12021364). 4 Many state bureaus initially expressed shock as, apparently, most have created databases that tie nonimmigrant alien status verification to Form I-94. These states will need to reconfigure databases and retrain state motor vehicle personnel. In the paperless nonimmigrant alien admission world, it is anticipated that state motor vehicle bureaus will utilize the aliens passport number and the admission stamp to verify status. This practice may need to be reconciled with the requirements of the REAL ID Act, which precludes use of a foreign government document to verify an aliens immigration status. P.L. 109-13 Title II 202(c)(3)(B). AILA will be working with the various agencies affected by this change to address these issues and will provide guidance as available. Redress procedures The incidence of CBP database errors is expected to be reduced with the creation of an electronic nonimmigrant alien admissions process. The database will be automatically populated with data provided in the nonimmigrant visa application and in APIS. It appears, however, that nonimmigrant alien category and admission dates will still be made in a passport by hand. Errors are inevitable. The CBP Deferred Inspection procedure will remain the point of contact to correct admissions errors. Procedures for resolving admissions issues with CBP are detailed in practice pointers prepared by the CBP Liaison Committee (AILA Doc. No. 09090364 & 11022365). 5

SSA POMS on Employment Authorization for Nonimmigrants, AILA Doc. No. 12060554, http://www.aila.org/content/default.aspx?docid=40001 4 CBP Teleconference on Automation of Form I-94, AILA Doc. No. 12021364, http://www.aila.org/content/default.aspx?docid=38529 5 AILA/CBP Practice Pointer: CBP Redress Processes, AILA Doc. No. 09090364, http://www.aila.org/content/default.aspx?docid=29963, and AILA/CBP Liaison Flowchart: Resolving Problems with CBP, AILA Doc. No. 11022365, http://www.aila.org/content/default.aspx?docid=34553

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