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Will I-94 Automation Cause More Headaches for U.S. Employers?

Did you get the memo from U.S. Customs and Border Protection (CBP) that the I-94 card is now being automated?  Don’t worry if you didn’t. Most employers didn’t either.  We wrote about those developments on our sister blog here.

Why I-94 Automation Matters

The I-94 Arrival/Departure Card has been the cornerstone of many foreign nationals entering the U.S.  CBP announced on August 7, 2012 that it will automate the I-94 record from a paper form to an electronic form.  (This sounds okay, right?)  The actual process though, has not been clearly communicated to the public.  In fact, the paper I-94 form (may or may not) still be issued at various ports of entry while the electronic I-94 record is being generated.  How a foreign national ultimately notified they have been issued an electronic I-94 record is still a mystery because that data may take anywhere between 30 to 45 days to be generated. Gary Endelman, Senior Counsel at Foster Quan, LLP in Houston Texas, explains the concerns arising out of the automation process:

Nonimmigrant arrivals will have no way to make sure that the information handwritten on their passports matches up with the electronic data captured by CBP at time of admission. There will be confusion arising from the fact that nonimmigrants coming through land borders will still get valid paper I-94 while those coming by air or sea will not receive a functional I-94.

I contacted USCIS last week to seek further clarification on the automation process but as of the time of this publication, I have not received a response. Although CBP held a Stakeholder meeting in February 2012 (I’ve looked over my notes from having attended that meeting), the concerns raised about syncing the I-94 numbers to the Form I-9 and E-Verify processes have yet to be fully addressed by any DHS agency, for now.  Mr. Endelman posed the same concern most employers probably have:

It is highly uncertain how I-9s will be completed since the combination of a valid foreign passport and valid I-94 is often used under List A for I-9 compliance. … As for E Verify, how many more tentative non-confirmations do you think will result?

To be fair, USCIS did issue a notice via E-Verify with the following warning informing us (and other employers) to expect an increase in Tentative Non-Confirmations but that was all.  (Are you thoroughly concerned yet?)

It’s not uncommon for an U.S. employer to hire workers from all over the world and the cost and process of training their HR staff in properly completing Forms I-9 and the E-Verify Cases have been high.  Susan J. Cohen, Chair of the Immigration Practice at Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. in Boston, Massachusetts, says:

[Employers] have concerns about properly completing Form I-9 after the I-94 has been eliminated.   Many employers have spent a lot of effort and time on training HR personnel in connection with I-9 compliance and the I-94 card has traditionally been a vitally important document in connection with the I-9 process.

Moving Forward More Communication and Education Is Needed

What’s further alarming is the fact that USCIS released a revised Form I-9 (7/17/2012) but didn’t reference any mention of the I-94 automation process that CBP has already implemented.  Ms. Cohen suggests employers would prefer:

CBP and ICE should coordinate closely and that ICE should do a significant amount of outreach and training on I-9 completion and I-9 best practices, after the form I-94 has been eliminated.  ICE should provide guidance and hold a series of outreach sessions with employers regarding I-9 completion.  ICE should also establish a grace period during which no fines or penalties will be levied in connection with I-9 violations that relate to the elimination of the I-94 card.

I certainly think a grace period would be appropriate.  Ms. Cohen recommends that, “The new Form I-9 should NOT be finalized without reference to the elimination of the I-94 card and the instructions should take the elimination of the I-94 into account.”  I couldn’t agree more. Mr. Endelman indicates that if there is no I-94 issued to the foreign national, then “USCIS needs to liaise with CBP as to what records will be acceptable as a functional substitute for evidence of valid status to be used with subsequent petitions for extension or change of status” not to mention the Form I-9.   “Further, the M-274 should be updated and re-issued at the same time as the new Form I-9, AFTER the I-94 has been eliminated, so that the instructions and guidance for employers is crystal clear.” (I hope USCIS and CBP are both reading this.)

A Dire Warning?

From an outsider’s perspective, there seems to be something fundamentally disconcerting that CBP could unilaterally automate the I-94 process but not provide the public with enough time to comment or provide suggestions.  I’m hoping there will be more information released soon.  In the meantime, Mr. Endelman warns,

The entire system of immigration benefits will be thrown into chaos with no information to stakeholders. The very notion of orderly adjudication will become an impossibility if the I-94 is eliminated and nothing replaces it that the public knows about, can understand or prepare for.

How is your organization coping with the I-94 automation changes?  How’s your Electronic I-9 and E-Verify Vendor coping?  Are you concerned? Please send us your comments.

About the Author

Susan J. Cohen is an Attorney and Chair of the Immigration Practice at Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. in Boston, Massachusetts.  She has co-chaired a wide range of national American Immigration Lawyers Association (AILA) committees a recipient of numerous awards for her work in the field of immigration.  You can follow Ms. Cohen’s immigration law blog here.

Gary Endelman is Senior Counsel at Foster Quan, LLP in Houston, Texas.  His practice involves specially designated I-9 problem solving with deep experience in workforce compliance issues.  You can read some of Mr. Endelman’s previous guest articles on our blog or visit his immigration blog here.

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