Reminders for the New Year: Importance of the I-94 Card (Part 1 of 4)

As we launch into New Year 2013, we at the Murthy Law Firm would like to remind our readers that now is a good time to double check important documents and dates related to one’s immigration. This is the first in a series of articles – Parts 2, 3, and 4 will follow in the coming weeks – to update some earlier suggestions for checking important dates and documents, and provide possible solutions to problems related to expiration dates and deadlines.

Importance of I-94 Expiration Date for Nonimmigrants

For those who are in the United States temporarily as nonimmigrants, the most important date to track is perhaps the expiration date of the I-94 arrival / departure card. The I-94 is a small card that is usually stapled into one’s passport. It is obtained in one of two ways. It can be issued by a U.S. Customs and Border Protection (CBP) officer at the port of entry upon arrival in the United States. It can also be issued by the U.S. Citizenship and Immigration Services (USCIS) when one is granted an extension or change of nonimmigrant status from within the United States. If the USCIS issues an I-94, it will arrive attached to the bottom of an approval notice (I-797). This should be detached and placed in one’s passport.

Fs and Js Enjoy D/S Status and No I-94 Expiration Date

Foreign nationals in F and J statuses do not have specific expiration dates noted on their I-94s, as they are admitted for duration of status (D/S). These individuals maintain their nonimmigrant statuses as long as they comply with the terms and conditions of their respective classifications during their programs.

Should Not Rely on Errors on the I-94 Card

The I-94 card reflects how long one is permitted to stay in the United States, provided s/he complies with the terms of her/his status. Occasionally, the CBP or USCIS will issue an I-94 card with an erroneous date (either issuing an approval for a longer period than permitted by law or by granting an individual less time than appropriate). In either case, one should immediately obtain competent legal advice on the proper steps to correct the error. One should never rely upon an erroneous grant of more time in a nonimmigrant category than was requested or than one is eligible to receive. If the expiration date on the I-94 card is earlier than allowed by law, there is a risk for the individual remaining in the U.S. without correcting or otherwise addressing the error.

The Murthy Law Firm can provide assistance in such matters. We have experience in having I-94s corrected by the CBP in appropriate situations, if the error was made at the airport, or at any other port of entry.

Difference Between I-94 Expiration and Visa Expiration

It is important to remember that the expiration date on a visa stamp in the passport and the expiration date on the I-94 card are often not the same, as they serve two different purposes. The visa is an entry document, only. The time that one is actually allowed to remain in the United States after entry could be much shorter or longer than the duration of the visa. The appropriate amount of time an individual is allowed to remain in the U.S. is determined by the CBP at the port of entry. This is based on applicable law as well as the CBP’s discretion. For example, an individual might be issued a 10-year, multiple-entry visitor visa (B-2) by the consulate. The fact that s/he has been granted a visa valid for ten years does not permit a stay of ten years on any single visit.

Visitors are limited to the amount of time granted by the CBP – normally six months, but potentially less, depending on the circumstances. These expiration dates should be closely tracked. Overstaying the amount of time granted by CBP can have serious legal consequences on one’s immigration status and eligibility for future immigration benefits.

Extension or Change of Status: Include Family Members

Each nonimmigrant member of a family should have his/her own I-94 card. Each I-94 should be examined to ensure that the status has not expired. Parents should track the expiration dates of their children’s I-94 cards. It is important to remember that every nonimmigrant must maintain his/her own status, even if that status is dependent on a spouse or parent. Simply obtaining the H1B petition approval with the I-94 extended for the principal does not protect the spouse or children. Family members must file separate extension requests (with limited exceptions) when the time comes to renew, in order to maintain their statuses and avoid potentially serious complications.

Common Mistake: Failure to File for Family Members

A common error involves family members who have derivative status, such as spouses or children in H-4 status. Frequently, it is assumed that extending the principal nonimmigrant’s status (H1B in this example) automatically extends the derivative status of one’s family members. Unfortunately, this is not the case. As mentioned, each family member must obtain an extension by filing a request with the USCIS. Commonly, a group of family members who are in the same status may be able to apply for extensions by using the same form with each name listed. However, the status is only extended if such a filing is made before the I-94 card expiration date for each family member, and it must be approved with the issuance of a new I-94 for each family member.

Given the typical process by which nonimmigrants enter the United States, it is easy for mistakes to occur. Many H-4s and other nonimmigrant dependents first arrive in the U.S. after applying for visas at U.S. consulates in their respective home countries. These visa applications are based on the approval of the principal family members’ cases – without the filing of separate applications / petitions by the dependents. However, once the dependents are in the United States, the procedure changes. The status of the dependents then depends on the expiration date on each individual’s I-94 card.

Requests for extension of status prior to the I-94 expiration date must be filed for each dependent. The fact that the principal family member has extended his or her status does not mean that the family is somehow automatically covered. One should consult a competent attorney to determine what is needed to extend derivative status.

Implications of Failure to Extend the I-94

The mistake of allowing the I-94 card to expire can have catastrophic results. In the United States, there are harsh penalties for failure to maintain status, as well as bars on reentry for those who have extended periods of unlawful presence.

Generally, once a person has fallen out of lawful nonimmigrant status, s/he is no longer allowed to extend or change status without leaving the United States. This procedure is expensive, inconvenient, and can be risky. More importantly, if one has overstayed the time allowed to remain in the U.S., her/his visa will be canceled. Renewal of the visa in that instance will require an application in the home country. One who has been unlawfully present for 180 days or more, will be barred from reentering the U.S. for three years from the date of departure. One year or more of unlawful presence triggers a ten-year bar on reentry to the United States. Counting the time one is unlawfully present is not always straightforward. Thus, if this problem is discovered, it is vital to get qualified immigration legal advice before making any decisions.

Possible Solution: Discretionary Nunc Pro Tunc

The Murthy Law Firm has had success over many years in addressing the failure to extend nonimmigrant status by filing requests for acceptance of late filed, nunc pro tunc, extensions for individuals who are out of status. However, approval of a nunc pro tunc request is entirely at the discretion of the USCIS and is far from routine.

If a nunc pro tunc extension is not available, or is denied by the USCIS, the derivative family member also has the option of traveling abroad to the U.S. consulate and, when needed, applying for a waiver of the unlawful presence penalties. Approval of this waiver is subject to the discretion of the government. In this type of waiver the consulate (which is under the U.S. Department of State) makes a recommendation, and the final decision is made by the CBP.

The Murthy Law Firm has been successful in obtaining such waivers for clients, but, as explained, approval is discretionary and depends upon the facts. It should be noted that a grant of this nonimmigrant waiver does not erase all consequences of the unlawful presence.

It may be necessary to obtain another waiver during the immigrant (commonly referred to as “green card”) process. The immigrant waiver is subject to a much harsher standard that many are unable to meet. Thus, people in this situation often try to resolve their status issues by filing nunc pro tunc requests within the United States, which – even though discretionary – avoid triggering the 3-year or 10-year bar on reentry to the U.S.

Conclusion

The I-94 appears to be a simple card, but it is a key immigration document. The I-94 card is issued either by CBP at the port of entry or by the USCIS with an extension or change of status. MurthyDotCom readers are urged to take the time to check their I-94s today. If there are questions regarding the validity of one’s status, or if the I-94 has expired, it is best to set up a consultation with a Murthy Law Firm attorney without delay to discuss any available options.

Originally published 10.Dec.2010, this article has been updated for MurthyDotCom readers.

Copyright © 2010-2013, MURTHY LAW FIRM. All Rights Reserved