Form I-94 is the admission document issued to most individuals who enter the U.S. in a status other than as a U.S. Citizen or Permanent Resident. Historically, the I-94 Form was a small white card which was stapled into ones passport at the time of entry.

Form I-94 is the admission document issued to most individuals who enter the U.S. in a status other than as a U.S. Citizen or Permanent Resident. Historically, the I-94 Form was a small white card which was stapled into one's passport at the time of entry. That is still the case for those entering the U.S. by land or by sea. However, in March 2013, U.S. Customs and Border Protection (“CBP”) automated its I-94 records for all aliens entering the U.S. by air. The electronic I-94 consists of a passport stamp showing the alien's arrival date in the U.S., the status in which he was admitted, and the date on which that status will expire, as well as an electronic record with complete I-94 data.

More recently, in May 2014, CBP added an additional feature to the I-94 web page, permitting aliens or their representatives to access not only their current I-94 record online but also to retrieve historical arrival/departure records. CBP made these historical travel records available in the hope that access to such records would eliminate the need for many aliens to file requests solely for arrival/ departure records through CBP's Freedom of Information Act (“FOIA”) unit. There is a button on the entry page to the I-94 web page asking the alien if he would like to withdraw a pending FOIA application due to the historical I-94 records available through the website.

In practice, the historical I-94 records are not as helpful as hoped. Typically the only aliens who would need to file a CBP FOIA request (link to: http://www.cbp.gov/site-policy-notices/foia) for arrival/ departure records would be Canadians who are seeking to adjust status or naturalize, as their travel history is (a) a critical piece of those applications and (b) generally unavailable due to the fact that Canadians are often frequent border crossers and enter and exit as “noncontrolled” aliens, meaning they do not receive an I-94 card for each trip.

While CBP does maintain records of each time a Canadian enters the U.S., and these records are available through a FOIA request, these records are not contained in full in the I-94 historical records. The entry/exit information in the I-94 web page is limited to occasions on which an I-94 was either generated (upon entry) or relinquished (upon departure). So the I-94 historical records do not provide information about noncontrolled entries and exits. Therefore, FOIA requests are still required in most of the cases where they would have been needed prior to creation of the historical I-94 record web page.

On the whole, the transition to an electronic I-94 record has been relatively seamless, and it is a great “green” initiative with relatively few problems. It is also beneficial in that for those Canadian citizens who fly into the U.S., even as visitors, there is now an I-94 record and a date certain expiration date for their entry, which makes it absolutely clear to the alien when he is required to depart the U.S. However, there continue to be some problem issues surrounding automation.

Implied Departure

One problem issue is that of an “implied departure,” meaning that there is information in the USCIS/ CBP shared database indicating that an alien has departed the United States, when he has not actually done so. This happens when aliens purchase but do not use an airline ticket to depart the U.S. This implied departure can trigger denial of a change of status application or an adjustment of status application for abandonment.

The AILA CBP national liaison committee learned in a recent meeting that these erroneous denials are due to a USCIS training issue and that CBP has reached out to USCIS to correct the issue. USCIS officers should be able to look deeper into the electronic record to determine that the alien did not actually board the plane.

These denials can and should be resolved through the filing of Motions to Reopen due to government error.

Records Unavailable

The only other major problem issue is that there continue to be instances in which I-94 records and/or historical travel data are unavailable in the electronic system. In many cases, the records can be retrieved by using the following troubleshooting tips: (1) ensuring correct data entry and/or trying alternative methods of entering data, e.g., reversing the first and last names; or (2)contacting a CBP Deferred Inspection Office for assistance. In cases where an attorney is retained, additional assistance may also be available through the American Immigration Lawyers Association (“AILA”).