New Automated I-94 Glitch Creates Problems for I-9 Completion

[Editor’s Note: Today’s article is courtesy of Josie Gonzalez, Partner at Stone Grzegorek & Gonzalez.]

On April 26, 2013, U.S. Customs and Border Protection (CBP) created a paperless admission process, eliminating the issuance of a paper card (I-94) that has, until recently, been attached to the foreign passport at time of entry, documenting the individual’s immigration classification, date of entry, and expiration date.  Instead, foreign nationals are now given instructions that will enable them to access the CBP website and print out their Form I-94, if needed for employment or other benefits.

For those individuals entering the country to work for a sponsoring employer, I-9 instructions advise the employer to record the foreign passport and the I-94 card, documenting that the individual has the right to work.  Unfortunately, the new automated system has encountered a glitch – some individuals are not able to find their I-94 record on-line and CBP personnel have been inundated with phone calls for help. Unfortunately, this leaves the employer with the problem of insufficient documentation to complete the I-9 for an employee who has legally entered the country and is ready to start work.

Since the government has not yet offered a solution for those employers encountering this problem, we offer a short-term fix: In Section One of the I-9, the foreign national who has temporary work authorization and is checking the fourth box should record the expiration date of work authorization, then record the foreign passport number and country of issuance, where indicated.  The space for the I-94 Admission Number should be left blank, as it is unknown.

In Section Two, the employer should record “Foreign Passport” under “Document Title.” For the “Issuing Authority,” indicate the country of issuance.  Record the passport number and its expiration date. In the second box of List A, under “Document Title,” instead of the I-94, record the admission stamp that is found in the passport, e.g. “CBP – Passport Admission Stamp –H-1B.” For the “Issuing Authority,” record “CBP.” Since the I-94 number is lacking, leave it blank but do record the expiration date, which will be noted on the stamp in the passport.

When the I-94 information is later retrieved online, the employee should amend Section One with the I-94 number, adding an initial and date. The employer should similarly annotate Section Two with this information, initial and date.

Note that one can present work authorization documents within three days of hire. Thus, an employer can invoke the three-day rule and wait to complete Section Two to see if the current glitch gets fixed by CBP within three days.

Do retain a copy of the passport documentation and keep it with the I-9. The employer who is registered with E-Verify also lacks sufficient documentation to complete the on-line verification.  One must conduct the verification within three days of hire.  Will the delay be excused?  Currently, E-Verify allows one to delay the verification when a social security number has not yet been issued. One should consider contacting E-Verify to determine if a delay is permitted in this instance.

Employers using electronic I-9 and E-Verify systems (which usually feature strict data validation rules) may need to devise yet another approach in order to complete an I-9 in these situations. For example, many systems will strictly require the I-94 number (or A-number) when the fourth attestation box is checked in section 1 to ensure the new hire employee does not accidentally skip those fields. In order to get around this requirement, employers may need to complete a “good old-fashioned paper I-9,” which can then be uploaded back to the electronic system once the I-94 number is received. Since each electronic system is different, it’s best to contact your vendor to see if this is a possibility.

In conclusion, in the next several days, DHS and CBP may come up with a better solution for employers than what is proposed in this article. If so, by all means — do follow the government guidance. Better yet, they may hire talented H-1B foreign national software developers to fix their glitch. Alas, with the exhaustion of H-1B numbers until October 2014, they are in a pickle.

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Josie Gonzalez is a Partner at Stone Grzegorek & Gonzalez. The merger of Gonzalez & Harris and Stone & Grzegorek will be finalized on July 1, 2013. The 21-attorney law firm will have more board certified California immigration specialists in immigration law and more lawyers ranked by Chambers USA and Martindale Hubbell as top leaders in their field than any other California immigration firm. Josie Gonzalez has represented employers in all aspects of immigration law for over 30 years. She received her JD, undergraduate and master’s degrees from U.C. Berkeley. She has represented hundreds of employers in ICE I-9 audits. Josie received the American Immigration Lawyers Association (AILA) Founder’s Award for “the most substantial impact on the field of immigration law or policy.” She is the editor of AILA’s leading treatise, Guide to Worksite Enforcement & Corporate Compliance.