August 17, 2012

U.S. Customs and Border Protection (CBP) recently announced plans to eliminate Form I-94, Arrival/Departure Record. The form documents the proper admission and maintenance of status for foreign nationals present in the United States, and helps to establish employment eligibility during the Form I-9 completion process, among other key uses. Although the CBP originally planned a gradual transition to paperless Form I-94 data gathering, current plans call for an imminent and wholesale elimination of the paper form.

According to CBP, eliminating the paper Form I-94 has two primary causes. First, the agency notes that it has access to same data gathered on the form in non-immigrant visa applications submitted by applicants at U.S. consulates overseas. Furthermore, CBP receives information from the Advance Passenger Information System (APIS), an electronic system used by commercial carriers and the private aviation community to provide CBP with required information such as arrival/departure details and traveler manifests. Second, the agency estimates that eliminating the manpower and mailing costs associated with the use of a paper Form I-94 will save over $35 million per year. It is also expected that the incidence of CBP database errors will decline with the introduction of an electronic non-immigrant alien admissions process that includes a database automatically populated with information provided during the non-immigrant visa application stages and in APIS. However, since alien category and admission date figures will continue to be entered by hand, the likelihood of errors is inevitable.

In lieu of the current Form I-94 process, CBP plans to issue an admission stamp in the passports of non-immigrant aliens, including a handwritten notation to indicate the individual’s status and authorized period of stay in the U.S. During the transition, non-immigrant aliens arriving at air or sea-based ports of entry which use APIS will receive non-functioning Forms I-94, or those with numbers unrelated to an official government record of the foreign national. Individuals arriving by land and certain classes of foreign nationals, such as refugees, will continue to receive valid Forms I-94.

The proposed change has caused consternation among state motor vehicle bureaus and private employers who rely on the Form I-94 as evidence of non-immigrant alien status and employment eligibility, respectively. Changes to the regulations governing proper Form I-9 and E-Verify procedures, as well as to state motor vehicle bureau databases which link the verification of non-immigrant alien status to the Form I-94, will likely become necessary in the near future. In addition, the speedy implementation of paperless Form I-94 data gathering may run into statutory challenges such as the REAL ID Act, which precludes the use of a foreign government document to verify a foreign national’s immigration status, and administrative requirements across various U.S. government agencies.