Form I-94 is the Department of Homeland Security (DHS) Arrival/Departure Record issued by the U.S. Customs and Border Protection (CBP) to foreign nationals admitted to the U.S. Form I-94 designates the duration of authorized stay allowed to the foreign national for each visit. The foreign national must exit the U.S. on or before the departure date listed on the I-94. The foreign national could also, in some situations, request an extension of stay from U.S. Citizenship and Immigration Services (USCIS). In the event of government error in the issuance of the I-94, the foreign national might also be able to obtain a corrected I-94 from CBP.
Our office regularly receives inquiries relating to the issuance of Form I-94 with an expiration date prior to the individual’s visa stamp or prior to the previously issued I-797 approval notice. With some exceptions, the last Form I-94 governs a foreign national’s stay in the U.S. Therefore, the foreign national must follow the expiration date on the most recently issued I-94 and not the date on the previously-issued I-797. Failure to follow this expiration date can have very severe immigration consequences.
The Form I-94 must be distinguished from the visa stamp in a foreign national’s passport, which is the entry document issued by a U.S. Embassy or Consulate abroad. The visa stamp is only the document authorizing a foreign national to enter the U.S.- it does not dictate the duration of stay given by CBP, which is something the individual’s I-94 always governs. CBP can give a shorter or longer duration depending on many factors.
For example, nationals of certain countries are entitled to a 10-year B-1/B-2 visitor visa. However, CBP can only admit most visitors for up to six months at a time and therefore individuals entering on a 10-year visitor visa will only be issued an I-94 bearing an expiration date no later than six months after entry. After six months, the individual must depart the U.S. or file an extension with USCIS, if eligible.
A second example would be an E-2 treaty investor with a five-year visa stamp. E-2 investors are entitled to a two-year I-94 per visit, which is why the individual will be given only a two-year I-94 even if he or she is in possession of a five-year visa stamp. After the two years, the individual must depart the U.S. and return or file an extension of stay with USCIS.
A third common scenario is when an individual’s passport bears an expiration date prior to the visa or I-797 expiration. CBP will often only issue an I-94 until the passport expiration date in this situation. There are potentially three ways to deal with a shorter Form I-94 duration issued because of an expiring passport:
- First, the foreign national can simply travel outside the U.S. and reenter on his or her new passport. At that time, CBP will be able to issue the I-94 for the employment dates appearing on the I-797. Note that the foreign national can use a valid visa stamp even if it was placed in the expired passport, as long as the expired passport is still in the foreign national’s possession. If the visa stamp is no longer valid, the foreign national will need to obtain a new visa stamp from the U.S. consulate or embassy abroad. Note that citizens of Canada are visa exempt, with some exceptions.
- Second, the foreign national can file an extension of his or her status, if not petition-based. If petition-based, the foreign national’s employer must file the extension.
- Third, if the foreign national is able to obtain a new passport soon after entry to the U.S., CBP may agree to issue a new I-94 with a longer duration. However, CBP can refuse to issue a new I-94 as it does not have the ability to extend an individual’s status in the U.S. It only has the ability to correct an erroneously issued I-94. This option is often within the complete discretion of CBP.
Note that CBP can sometimes properly issue a longer I-94 than the individual’s visa or I-797; for example, an E-2 treaty investor is entitled to a two-year I-94 upon entry even if his or her visa is about to expire. However, a longer I-94 could also be a mistake that must be corrected.
In conclusion, it is important to monitor your I-94 records and to contact an experienced immigration professional if there is a discrepancy.