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Important Changes to Form I-94

By Susan Cohen

On March 27, 2013 the Department of Homeland Security (“DHS”) published an interim rule in the Federal Register that changes the definition of Form I-94 (also known as an “I-94 card”) in order to allow an I-94 to be issued in electronic format, as well as in its current paper version. The purpose of the new rule is to streamline the I-94-issuing process and make it more efficient and user-friendly. DHS is seeking comments on the interim rule and will accept comments until April 26, 2013.

Currently, foreign nationals arriving in the U.S. complete a paper Form I-94 which is stamped by a Customs and Border Protection (“CBP”) officer at the U.S. port-of-entry. The stamp contains the date of admission, the class (visa type) of admission, and the date until which the foreign national is permitted to remain in the U.S. The departure portion of the Form I-94 is retained by the foreign national to be shown to government officials if necessary, and potentially to employers as part of the I-9 process.

This new rule will impact travelers who arrive in the U.S. by air or sea. Because CBP collects information on travelers arriving by air and by sea through the Advance Passenger Information System (“APIS”), CBP already receives and collects most of the information contained on the Form I-94 electronically and before an individual arrives in the U.S. The remaining pieces of information are collected either by the Department of State (“DOS”), or from the passenger upon his or her arrival in the U.S. All of this information will now be collected electronically. This new rule has not yet been extended to individuals who arrive in the U.S. through a land port-of-entry and who receive paper Forms I-94 (e.g., Canadians and Mexicans who enter the United States at a land border crossing and seek admission in a work visa classification such as H-1B or TN) when entering the U.S.

When the rule becomes final, foreign nationals arriving by air or by sea will no longer complete a paper Form I-94 prior to arrival and will not present the Form I-94 in paper form to a CBP inspector at a U.S. port-of-entry. Instead, upon the person’s arrival, the CBP officer who inspects the individual will upload the I-94 information into an electronic database, including all the information that the officer would have written on the paper I-94 card, such as the date of admission, the class (visa type) of admission, and the date until which the individual is permitted to remain in the U.S. The CBP officer also will continue to stamp the traveler’s passport at the time of inspection, admission and parole and will annotate the stamp with the class of admission or parole and duration of admission or parole.

Foreign nationals will be able to access and print their electronic Form I-94 via a website that CBP has established for this purpose: Travelers to whom an electronic Form I-94 has been issued will be able to log on to the website using identifying information and print a copy of the electronic Form I-94. To do so, the traveler must insert information from his or her passport. Therefore a third party without access to this personal passport information will not be able to access the Form I-94 from the website. The printout from the website will be the functional equivalent of the paper Form I-94. For example, if a foreign national wishes to be employed and plans to present to an employer his or her passport and Form I-94 as a List A document for I-9 purposes, going forward the individual will print the Form I-94 from the CBP website and present it to his or her employer along with his or her passport.

The new rule is expected to become effective on April 26, 2013, although there is a slight chance the effective date may be postponed by an additional 30 days, subject to comments DHS receives from the public. Mintz Levin will continue to provide updates on developments relating to this new rule and its impact on our clients.

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Douglas Hauer is a Mintz attorney and noted authority on the EB-5 investor visa program, which gives developers a path for securing capital for real estate, hospitality, and infrastructure projects. He's an essential resource for companies looking for financing from offshore sources.