January 8, 2008

Documenting Timely Departures from the U.S.

An applicant for admission or adjustment of status may be required to prove that he or she did not overstay a period of authorized admission - often a challenge given CBP's (Customs and Border Protection) lack of an accurate and consistent mechanism for collecting I-94s upon departure from the U.S.

If an applicant departed timely and he or she did so by a common carrier at an air or sea port, his/her departure information should have been collected and properly entered into a DHS (Department of Homeland Security) database. Unfortunately, and too often, the I-94 card is not collected or, even if it was, the departure information was nevertheless entered incorrectly into the database. If, on the other hand, an applicant departed timely but did so from a land port of entry, he or she will not have had the I-94 card collected and there will be no record of the departure in the database. Even though the government is aware that there is no mechanism to collect the I-94 cards, it acknowledges that it will nevertheless use the information in the system on the I-94 card’s return as proof of a timely departure. Thus, the burden is on the applicant to return the card to the government. This is true regardless of whether the applicant still holds the card because a carrier failed to collect it or the applicant departed via a land port of entry.

In addition to returning the I-94 to the DHS, travelers should try to maintain other documentation to show departure from the U.S. This can include airline tickets, boarding passes or other documentation of travel by commercial carrier, passport stamps or other proof of admission to another country or activities within another country, such as ATM receipts or hotel, restaurant or other credit card receipts for purchases.

An inconsistency between a stated date of departure and a DHS computer profile regarding when and if an I-94 card was returned can lead to a possible refusal of admission. Even worse, it will likely lead to a Request for Evidence possible even a Notice of Intent to Deny on an adjustment or change of status application. The bottom line is that in today’s world of increased enforcement and scrutiny of applicants for admission or adjustment of status, it is the responsibility of the applicant to return the I-94 card to the CBP. It is imperative that the applicant provide ample proof of the actual day of the departure and not just proof of the departure itself.

For detailed instructions on where and how to return the I-94 cards to the CBP, please contact our office.