By: Carmen C. Lopez
As an employer, there are several good pointers you can recommend to your employees who hold non-immigrant visas such as L-1 or H-1B, before traveling outside the United States. Some of these recommendations include the following:
- Ensure that the validity period of the foreign passport the employee holds, is valid for at least, the validity period of the approval notice (i.e. Form I-797A or I-797B).
- Have the employee print his/her Form I-94 U.S. arrival/departure record immediately upon entering into the United States to verify the validity period is correctly issued. This can be done at https://i94.cbp.dhs.gov/I94/#/home.
- Ensure that the employee has a valid visa in their passport issued by the U.S. Consulate before they enter the United States.
- Ensure that the employee carries the necessary documents when entering the United States such as their Form I-797A or Form I-797B.
We often see common problems, when some of the above actions are not taken. If a foreign national enters the United States, and their passport is valid for a shorter time than the validity of their H-1B or L-1 approval notice, the foreign national, will only receive an I-94, valid for only the life of the foreign passport. The validity on Form I-94, can never be longer than the life of the foreign passport. This puts the status of the foreign national in jeopardy.
Other common issues occur when the foreign national does not print their I-94 immediately after entering the United States. There are times when the validity of the I-94 is incorrectly issued by U.S. Customs and Border Patrol (CBP), causing serious consequences to the foreign national. For example, the foreign national enters the United States and the validity of the I-94 is shorter than the validity of the H-1B approval notice, Form I-797. The validity of the last issued I-94 will take control of the foreign national’s status. By the time the foreign national realizes the I-94 was incorrectly issued, the foreign national has been on an expired I-94 for over 1 year, triggering a 10-year bar. Time spent in the Unites States, on an expired I-94, constitutes unlawful presence and unlawful employment.
There are ways a foreign national can correct the validity of the I-94 when CBP incorrectly issues an I-94. One way is to make an appointment through Info Pass through the United States and Immigration Services (USCIS) website found at https://my.uscis.gov/appointment. The foreign national would visit the Deferred Inspections Department to have the I-94 corrected. They should carry documents such as their passport, Form I-797B (approval notice approved for consular processing) or Form I-797A (approval notice approved with the I-94 attached to it). Please note that Deferred Inspections Department, cannot extend the validity of the I-94, due to having a passport with a shorter duration. Another way of correcting an I-94, is by visiting CBP through a Class A Port of Entry. Alternatively, in San Ysidro, the foreign national doesn’t have to travel outside the United States to correct the I-94. They can simply visit the San Ysidro Land Port of Entry (on the U.S. side) located at 415-499 Virginia Ave, San Diego, CA 92173. The foreign national would pay $6.00 and the I-94 can be issued. They don’t have to cross into Mexico.
Finally, please note that H-1B visas issued by the U.S. Consulate remain valid, even if the foreign national changes employment. 9 FAM 402.10-11(A). Therefore, if the foreign national obtained an H-1B visa in their passport while employed with company A, but changed their employment to company B, the foreign national can still avail to the H-1B visa in the passport, so long as it remains valid.