Reminders For The New Year

by Sheela Murthy et al.

As New Year 2012 rapidly approaches, 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 their immigration. This series of articles - Parts 2, 3, and 4 will follow in the coming weeks - updates some earlier suggestions for checking important dates and documents, and provides possible solutions to problems related to expiration dates and deadlines.

Importance of I-94 Expiration Date for Nonimmigrants

For those who are in the U.S. temporarily as nonimmigrants, the most important date to track is perhaps the expiration date of their I-94 arrival / departure cards. 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 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.

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. The Murthy Law Firm can help with the CBP to have I-94s corrected in appropriate situations, if the error was made at the airport, land port, or other port of entry. An example of our work in this area is described in our article, Murthy Success Story: Consulate and POE Make Requested Corrections (24.Sep.2010).

Difference Between Dates of 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. The visa is an entry document, only. The time that one is actually allowed to remain in the United States after an entry could be much shorter or longer than the duration of the visa. The appropriate amount of time 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.

Extension or Change of Status: Don't Forget Family Members

Each nonimmigrant member of a family has his/her own I-94 card. The I-94 card of each family member 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, as explained below. Family members must file separate extension requests when the time comes to renew in order to maintain their statuses and avoid potential 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 family members. Unfortunately, this is not the case. As mentioned, each family member must obtain an extension by filing a request with the USCIS. The status is only extended if such a filing is made and 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 on behalf of 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. The family members need separate applications, with separate filing fees, to extend derivative status.

Implications of Failure to Extend 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 legal 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 been unlawfully present for more than 180 days, s/he 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: Nunc Pro Tunc

The Murthy Law Firm has had success over many years of addressing the failure to extend nonimmigrant status by filing requests for acceptance of late filed, nunc pro tunc, extensions for out-of-status, derivative family members. Some of our work in this area is described in, Murthy Success Story: Previously Denied H-4 Nunc Pro Tunc and I-485 Approved (29.Jan.2010).

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 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 stay. 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 cannot meet. Thus, people in this situation often try to resolve their status issues by filing nunc pro tunc requests.

Conclusion

The I-94 appears to be a simple white paper card, but it is a key immigration document. All MurthyDotCom and MurthyBulletin 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 qualified immigration attorney without delay to discuss any options available.

This article originally appeared in Murthy Bulletin on www.murthy.com. Reprinted with permission.

About The Author

Attorneys from the Murthy Law Firm. Sheela Murthy is the founder of the Murthy Law Firm, which consists of approximately 85 full time attorneys, paralegals, and support staff, who provide excellent service in the area of U.S. Immigration Law to clients worldwide. The Murthy Law Firm handles cases ranging from Fortune 500 companies, mid-sized and small companies, to individuals who are undergoing the U.S. immigration process. A graduate of Harvard Law School with an LL.M degree and herself an immigrant, Attorney Murthy understands the complexities of immigration and empathizes with those faced with its challenges.

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