Since July of 2014, it has been reported that certain visa petition approval notices (Form I-797s) have been issued by U.S. Citizenship and Immigration Services (USCIS) without I-94 cards attached. In addition, U.S. Customs and Border Protection (CBP) has issued I-94 cards with incorrect names, duration of stay dates, and visa classification information. These errors have been occurring regularly over the last several months. The I-94 card is a crucial document showing that an employee entered the United States legally and is authorized to work for a sponsoring U.S. employer until the expiration of the card. If the card is missing or I-94 information is incorrect, the employer may be exposed to liability for unauthorized employment and problems may arise when the employee travels or extends his or her visa.
A foreign national employee’s visa status and duration of stay is updated on an I-94 card each time he or she returns to the United States from an international trip abroad. Since April 2013, CBP has provided the I-94 electronically online for entries by sea or air. (Entrants at land border ports of entry continue to receive paper I-94 cards upon entry.) After entry by sea or air, an employee should immediately obtain an electronic copy of his or her I-94 online, print it out for his or her records, and provide it to his or her employer and immigration counsel. It is essential to ensure that the I-94 information on the CBP website is accurate and reflects the correct expiration date. Employers should obtain updated copies of I-94 cards for all employees every time an employee’s status is changed or extended by USCIS, and each time an employee reenters the United States from abroad. Employers should also verify that an employee’s name, visa category, and duration of stay are correct and keep copies for proper recordkeeping. Employers and/or employees should always send copies of updated I-94 cards to immigration counsel.
It is particularly important for an employee to have an accurate paper copy of the I-94 to be eligible for automatic visa revalidation for short periods of stay in contiguous territories. In certain circumstances, foreign nationals may reenter the United States after stays of 30 days or less in Canada or Mexico if they have a valid I-94, even though their passport visa stamp has expired. If the I-94 information is incorrect or the approval notice is missing the I-94, the employee will very likely encounter issues upon reentry into the United States after such a trip. As such, having an accurate paper copy of the valid I-94 card is important.
What if the I-94 Information is Incorrect, the I-94 is Missing, or Information Cannot be Found Online?
If the I-797 approval notice is missing the I-94 or the I-94 information on the I-797 is incorrect, the employer should contact counsel to request a corrected I-797 from USCIS. If the employee is issued an incorrect I-94 card at a land border point, the local CBP deferred inspection office should be contacted immediately to request a corrected I-94. If the employee entered by sea or air, and the I-94 cannot be found online, try reentering the name, visa category, and passport number as they appear on the DS-160 application, the visa stamp, and/or passport(s). If the information is still not found online or is incorrect, contact the local CBP deferred inspection office.
Employers with additional questions about I-94 cards, I-797 approval notices, and other issues, should contact the Ogletree Deakins attorney with whom they normally work or a member of the Immigration Practice Group for assistance.