Reviewing Your I-94: Vital for Immigration Success
As a Foreign National living in the United States on a temporary visa, it is vitally important that you understand the significance of your I-94 arrival departure record. Each time you physically enter the United States, a U.S. Customs and Border Protection officer at the port of entry creates an I-94 arrival/departure record to document that admission in its computer database. This record notes your date of admission, the status of admission, and the expiration date of that admission. For years this record was an index-weighted card (“I-94 card”) that was stapled into your passport to memorialize your arrival. However, the practice of placement of a physical I-94 card was discontinued in favor of creating the record electronically so the card could not be lost. A byproduct of this development is the fact that you now bear the responsibility of going to the CBP website at I-94 Official Website – Home Page each time you enter to check and make sure your I-94 record is accurate, including the all-important expiration date.
We have seen an issue arise lately where foreign nationals have not reviewed their I-94 record online after reentry and they are unaware that the expiration date of their current I-94 record is past. This happens most often when the expiration dates of their I-94 record, and their most recent I-797 approval notice, do not match. The consequences of this situation can have a profound impact on your immigration status.
There is an old “rule” that is commonly known as the “Last Action Rule.” In short, this means that the last I-94 record granted to you controls the expiration of your status in the U.S. Foreign nationals will sometimes mistakenly believe that the expiration of the visa stamped in their passport controls their status. More commonly, they mistakenly believe that the expiration of their most recent I-797 approval notice controls the expiration of their stay. This is true if you have not left the U.S. since that approval notice was issued. However, as soon as you leave the U.S. and reenter, your I-797 approval notice is no longer the operative document, it becomes the I-94 record issued to you when you reentered the U.S. This is the “last action rule” at work. Because the last I-94 record issued to you was at the port of entry, this is the document that now controls the expiration of your status in the U.S.
Most of the time the expiration dates of your I-94 record and your most recent I-797 approval notice match, so this is not an issue. However, what if they do not? The two most common reasons for a discrepancy in these dates are 1) an error made by the CBP officer when you are admitted to the U.S. or 2) your passport will expire prior to the expiration of your current I-797 approval notice, so you are only admitted to the expiration of your passport.
CBP officers are human, so they will occasionally make mistakes. They may only admit you through the expiration of a prior approval notice, or only through the expiration of your visa stamp and not your current approval notice. Both errors can usually be remedied by your local CBP deferred inspection office where they will correct your I-94 record to reflect the correct expiration date.
However, if the discrepancy in expiration dates is not due to a mistake, but due to a passport expiration date, then this shortened I-94 record expiration date is legally accurate and thus cannot be corrected by the deferred inspection office. If you are fortunate to discover this issue before your I-94 record has expired, you can request an extension of your I-94 record by filing a petition with USCIS. However, if the I-94 record is expired when it is discovered, you will typically need to take a trip abroad and reenter with a new passport to obtain an I-94 record with an expiration date that captures the full validity period of your approval notice.
When you overstay a date-certain I-94 expiration date, you become “unlawfully present” in the U.S. If you catch this with the first 180 days after expiration the situation can be remedied with a quick trip abroad as described above. However, if you do not catch this issue until after you have been “unlawfully present” for more than 180 days, when you leave the U.S., you may be barred from returning to the U.S. for a three-year period.
What was supposed to be a quick business trip abroad or a vacation can quickly turn into a nightmare and the end of your stay in the U.S. There are some waivers available for an occurrence such as this, but they take time and money to overcome and often your employer has moved on to another person to fill your role while you work to resolve this issue. This is why understanding the “Last Action Rule” and how it works is vitally important.
As a foreign national living in the U.S. on a temporary form of immigration status you should always know when your current I-94 record expires. If you are not sure, the key is to look at the entry date of your last return trip to the U.S. and the “notice date” on your last I-797 approval notice. The controlling document is whichever one was most recently issued. If it is your I-94 record based upon your most recent reentry to the U.S. that controls, it is imperative that you check the accuracy of your record to ensure you have not become unlawfully present without knowing it.
If you have any questions on this issue, please contact one of our attorneys at Gunn Menefee LLC.