U.S. Customs and Border Protection (CBP) has updated its admission system and has begun issuing I-94 admission records containing employment authorization notations for newly-admitted L2 and E spouses. While CBP has not officially announced the change, effective Jan. 31, 2022, the agency began issuing I-94 admission records with the following notations reflecting work authorization incident to status:

E-1S – Spouse of E-1

E-2S – Spouse of E-2

E-3S – Spouse of E-3

L-2S – Spouse of L-1A or L-1B

Although not required, CBP recommends L2 and E spouses travel with proof of the marriage relationship (i.e., marriage certificate with English translation, if necessary) to assure the correct notation is entered into their I-94 admission record.

For employers, L2 and E spouses who are admitted with this employment authorization notation will be immediately eligible to work in the United States without restriction until the expiration date listed on the I-94. They will no longer be required to apply for an Employment Authorization Document (EAD) from USCIS, although they may continue to apply for the EAD if they wish to do so.

U.S. Citizenship and Immigration Services (USCIS) has updated its I-9 policy guidance to confirm that employers can accept the new, revised I-94 containing these new work authorization notations as evidence of employment authorization under List C of the Form I-9.

However, employers should also be aware that CBP is not retroactively updating the I-94 admission records for L2 and E spouses already present in the United States. These individuals will only be eligible to obtain the work authorized I-94 notation the next time they return to the United States after foreign travel, or the next time they file an application to change or extend their nonimmigrant status with USCIS.

L2 and E spouses who have not received an I-94 admission record containing the employment authorization notation must continue to rely on their EAD as proof of their work authorization in the United States. Employers should be aware of this distinction when completing the I-9 process.

Beginning in May 2019, Form I-94 will have a new look. The current 11-digit numerical format will be replaced by alphanumeric characters. The new format will include 11 characters, starting with nine digits, a letter in the tenth position, and a digit in the eleventh position. Customs and Border Protection (CBP) indicated that unexpired I-94 Records issued in the current numeric-only format will continue to be valid until the “Admit Until Date” printed on the paper or digital I-94 Record expires. You can continue to retrieve your electronic Form I-94 here.

For more on I-94, click here.

 

The U.S. Customs and Border Protection (CBP) has announced that its I-94 website will be under maintenance and will not be available during the following periods: (1) March 30, 2017 from 1:30 a.m. to 5:30 a.m. EDT; (2) April 2, 2017 from 1:30 a.m. to 5:30 a.m. EDT; and (3) April 6, 2017 from 1:30 a.m. to 5:30 a.m. EDT. During these times, the ability to view a recent I-94 record, obtain recent travel history, and purchase a provisional I-94 will be disrupted; CBP advises against using the aforementioned functions accordingly.  

Foreign nationals present in the United States in nonimmigrant visa status should note the CBP I-94 website maintenance periods mentioned above and may wish to access any relevant I-94 records and/or travel history records prior to these times. Those planning to return to the U.S. from international travel while the site is unavailable, should access the CBP system after site maintenance is complete to ensure the electronic I-94 record is correct and consistent with the relevant passport entry stamp received during the admission process. Greenberg Traurig can assist with any questions regarding corrections to I-94 entry records or the admission process.

 

CBPOn Sept. 29, 2016, U.S. Customs and Border Protection (CBP) announced that it has enhanced the I-94 website for travelers arriving to the United States at land ports of entry.  Travelers now can apply and pay the $6 fee for their I-94 card online up to seven days prior to their entry.

An I-94 form is needed by all persons except U.S. Citizens, returning resident aliens, aliens with immigrant visas, and most Canadian citizens visiting or in transit.  Air and sea travelers will continue to be issued I-94 records during the admission process at the port of entry.  However, for those travelers seeking admission to the United States at a land port of entry, taking advantage of this new enhancement will quicken and simplify the admission process.

The application requires travelers to submit their biographic and travel information; in return, they will receive a provisional I-94 card after submitting the application and payment of the fee online.  The application collects the information that would otherwise be collected during the in-person inspection at the land port of entry, including name, date of birth, country of citizenship, passport details, visa details (if applicable), and petition/SEVIS number (if applicable).  To finalize the I-94 issuance process and admission, the traveler must present him or herself at the land port of entry within seven (7) days of the application, submit biometrics, and be inspected by a CBP officer.  Travelers always should be prepared to show evidence of their residence, employment and/or travel plans to the inspecting CBP officer, depending on the category of nonimmigrant admission being sought.

CBP expects for the new online I-94 application process to increase efficiencies during inspection and admission, decrease paper usage, and streamline the process at the land border, thereby reducing operating costs.  The secure website is easy to use and payment can be made via credit card, debit card, direct debit, or through PayPal.

CBP has automated the I-94 and I-94W process for all travelers applying for admission at U.S. ports of entry. Consequently, nonimmigrants arriving at an air or sea U.S. Port of Entry no longer receive a paper I-94 card from the CBP inspector. CBP provides each nonimmigrant with an admission stamp that is annotated with date of admission, class of admission and status expiration date. After leaving the port of entry, the nonimmigrant can retrieve an electronic copy of his or her I-94 card from the CBP website. As advance information is only transmitted for air and sea travelers, CBP still issues a paper form I-94 at land border ports of entry.

Continue Reading Tips for Resolving Issues I-94 Issues under the Electronic CBP System

Since April 30, 2013, CBP has been implementing I-94 automation by issuing passport stamps and an electronic record to most foreign nationals arriving in the U.S. at sea and air ports rather than paper I-94s. Foreign nationals arriving at land borders will continue to receive paper I-94s from CBP.

CBP will continue to issue paper I-94s to refugees, asylees and parolees at land, sea and air ports. An arriving foreign national may request a paper I-94 from CBP at a land, sea or air port. Those foreign nationals requesting paper I-94s, as well as refugees, asylees and parolees, will be issued paper I-94s in secondary rather than primary inspection. The paper I-94 provided by CBP will be a printout of the electronic record available at www.cbp.gov/I94.

It’s important to note that foreign nationals should enter their name on the I-94 web site as it appears in their passport. The I-94 site instructs individuals to enter their first and last names as they appear on the “travel document used to gain admission to the US.” CBP has clarified that the name on the passport, rather than the visa, should be entered to access the electronic record.

As a general rule, foreign nationals should get in the habit of accessing and printing their I-94 information after each entry as proof of their valid immigration status. An I-94 printout is also important in terms of applications for a driver’s license or social security number. Errors found in the electronic record should be corrected as soon as possible.

Please join Anna Reiff and Cole Heyer, members of GT’s Immigration & Compliance Practice, for the webinar “Happier Trails: Essential International Travel Tips for U.S. Residents and Foreign Nationals” July 27 from 1 – 2 p.m. ET.

The summer months are a ripe time to tour the world, preview international universities for studies, or visit family—but only if you have the proper documentation to return to the United States.

Before booking that flight for a global destination, join this informative webinar designed to offer an overview of travel considerations amid the latest federal guidance for U.S. citizens and foreign nationals alike, including:

  • Understanding which documents to carry
  • Reviewing the visa stamping process, both for trips abroad and to the United States
  • Learning more about automatic revalidation
  • Exploring the important compliance items such as Form I-94s and passport validity
  • Discovering the ins and outs of travel on advance parole

Click here to register.

A gathering opportunity for immigration legal professionals from both the United States and around the globe, the annual American Immigration Lawyers Association (AILA) Conference (AC23) was held in Orlando in June 2023. Peter Shin and Anna Reiff represented Greenberg Traurig, whose continued presence at this conference underscores the firm’s commitment to remaining at the forefront of immigration law and policy.

AC23 featured a diverse selection of sessions, including topics on emerging technologies, regulatory updates, visa issuance programs, and procedural law, among others.

AC23 highlights: discussions surrounding emerging technologies that already have been implemented or are in development that aim to streamline routine immigration procedures. These include:

  • CBP One™ Mobile Application: Providing increased accessibility and transparency to some of U.S. Customs and Border Protection (CBP) ’s most often-used services, such as inspection appointment requests for brokers/carriers/forwarders and an I-94 Entry feature for travelers.
  • ESTA Mobile Application: Simplifying the process for travelers by scanning their passports and photos, eliminating the need for printed ESTA documentation in some cases. See our July 2023 blog post.
  • Mobile Passport Control (MPC): Enabling U.S. citizens, Canadian visitors, and U.S. Legal Permanent Residents to declare items directly within the app, streamlining the customs declaration process. Some ports have dedicated lanes for MPC users, further expediting their entry into the United States.
  • Visalaw.ai – Artificial Intelligence: Forthcoming AILA collaboration tool aimed to support immigration lawyers in their work. This AI platform will provide tools for legal research, summarization, drafting, and client engagement. The first phase of this new technology is scheduled for purchase on Aug. 1, 2023.
  • USCIS Online Biometric Rescheduling Tool: Enabling benefit requestors, attorneys, and accredited representatives to reschedule appointments before the scheduled date without the need to call or send mail to the USCIS Contact Center. See our July 2023 blog post.

Fastcase CEO Ed Walters delivered the keynote speech, during which he emphasized the transformative potential of emerging technologies in immigration law, encouraging practitioners to embrace this change by understanding and leveraging these tools to enhance legal services for clients.

GT’s representatives also had the opportunity to engage with U.S. government agency representatives from CBP, the Department of State, USCIS, and the Department of Labor. Topics discussed included the availability of the pilot in-U.S. Visa Issuance Program, the role and capabilities of the CIS Ombudsman Office, nonimmigrant visa wait times at U.S. consular posts, and the new PERM online application system, among many others.

FOR THE WEEK OF APRIL 28, 2023

Legislative Updates

  • House Immigration Border Bills Move Forward: The House Judiciary Committee’s Subcommittee on Immigration Integrity, Security, and Enforcement marked up H.R. 2640, the Border Security and Enforcement Act of 2023. This bill focuses on border and asylum reform as well as unauthorized immigration. A separate bill, the Border Reinforcement Act of 2023 (H.R. 2794), was reported favorably out of the House Committee on Homeland Security on April 27, 2023.
  • Florida is Poised to Mandate Use of E-Verify: The Florida state legislature is expected to pass a sweeping immigration bill next week. The bills HB 1617 and SB 1718 would, among other things, require private employers of more than 25 employees to use E-Verify beginning July 1, 2023.

State Department Suspends Visa Services in Sudan

  • As of April 22, 2023, the U.S. Embassy in Khartoum suspended its operations, and all immigrant and diversity visa interviews are canceled until further notice. Nonimmigrant visa applicants may apply in any country in which they are physically present and where there are appointments available.

USCIS Says It Found Companies Cheating During H-1B Lottery Selection Process

  • The Wall Street Journal is reporting that USCIS is issuing notices today to employers that it says entered the same applicants into the lottery selection process multiple times.
  • USCIS did not name the companies, saying they are under investigation and have been referred to federal law enforcement agencies for potential criminal prosecution.
  • USCIS noted on its H-1B electronic registration site that “the large number of eligible registrations for beneficiaries with multiple eligible registrations – much larger than in previous years – has raised serious concerns that some may have tried to gain an unfair advantage by working together to submit multiple registrations on behalf of the same beneficiary.”
  • There were 781,000 entries into the lottery selection process this year. Last year, there were 478,000 entries.

Biden Administration to Open Processing Centers in Colombia and Guatemala

  • The processing centers will be operated by international organizations partnering with the U.S. to screen applicants for legal ways to immigrate to the U.S.
  • The centers are part of the government’s effort to reduce illegal immigration at the U.S.-Mexico border.

FOR THE WEEK OF APRIL 17, 2023

Legislative Update

  • On April 18, Sen. Bob Menendez (D-NJ) introduced his outline for border security and immigration reform, which has four pillars: create new and expand existing legal pathways to immigrate to the United States; increase resources at the border to process asylum seekers and carry out removal; expand humanitarian assistance to countries in Latin America; and elevate efforts to counter human trafficking and smuggling.
  • The House continued to mark up its Border Bill in the House Judiciary Committee, but no bill has come out of committee yet.

USCIS Extends Temporary Suspension of Biometrics Requirement for Certain I-539 Applicants

  • USCIS continued its suspension of the biometrics requirement for those filing I-539 applications for extensions of or change of status to H-4, L-2 or E status.
  • The suspension is extended from May 17, 2023, to Sept. 30, 2023. USCIS also said it plans to permanently exempt all I-539 applicants from the biometrics requirement “in the coming months.”

General Motors’ Export Compliance Assessments Trigger Investigation, Settlement with IER

  • DOJ reached a settlement with General Motors regarding its allegations that GM unlawfully discriminated against non-U.S. citizens with its export compliance assessment processes.
  • The DOJ’s Civil Rights Division, Immigrant and Employee Rights Section (IER) investigation determined that GM unnecessarily required lawful permanent residents to provide unexpired foreign passports as a condition of employment. It also found that GM combined its I-9 and export compliance assessment processes, resulting in GM requiring newly hired non-U.S. citizens to provide specific and unnecessary documents to prove their permission to work.
  • The settlement is a good reminder that adherence to export control laws and regulations do not exempt employers from anti-discrimination requirements. It’s also important to ensure that an employer does not forget the anti-discrimination provisions in its pursuit of efficiency in the onboarding process.
  • IER reminds employers of their obligations in the context of export control laws and regulations with this worksheet.

FOR THE WEEK OF APRIL 14, 2023

USCIS Provides Information About Options for Terminated Nonimmigrant Workers

  • USCIS posted options for nonimmigrant workers whose employment is terminated, either voluntarily or involuntarily.
  • In general, where eligible, terminated nonimmigrant workers may (1) file an application for a change of nonimmigrant status; (2) file an application for adjustment of status; (3) file an application for a “compelling circumstances” employment authorization document; or (4) be the beneficiary of a nonfrivolous petition to change employer.

Customs and Border Protection’s Stampless Entry Program

  • As part of its Simplified Arrival process, CBP continues to roll out its Stampless Entry pilot program to eliminate ink stamps in passports at entry.
  • More than ever, it’s very important for foreign nationals to download their I-94s at cbp.gov/i94 to ensure they are admitted correctly.

FOR THE WEEK OF APRIL 6, 2023

Legislative Update

  • Sens. Dick Durbin and Chuck Grassley have reintroduced their H-1B and L-1 Visa Reform Bill. This bill has been introduced with many iterations since 2007. We don’t anticipate its passage this year.
  • Lou Correa and Dan Goldman (D-N.Y.) request that the appropriations committee increase funding to $400 million to support USCIS processing and the reduction of backlogs. They also requested an increase of $425.9 million to fund the asylum processing rule and $100 million to be added for USCIS citizenship grants for groups that help prepare permanent residents for naturalization.

Compliance Consideration: Termination of E-3 and H-1B1 Visa Holders Should Include Notifying USCIS

  • In addition to withdrawing the LCA, The Wage and Hour Division of the Dept of Labor requires three steps for ending an employer’s wage obligations pursuant to a certified LCA: (1) employment relationship has been terminated; (2) petition should be cancelled; and (3) employee has been offered payment for transportation home.
  • Even though E-3 and H-1B1 workers do not have petition filings with USCIS, it’s important to notify USCIS of the end of the employment relationship.

District Court Ends Challenge to H-4 Work Permits

  • A federal judge granted the Dept of Homeland Security’s motion for summary judgment and ruled in favor of the government’s authority to grant work authorization to certain visa types.

I-9 Reminder: In-person Review of Documents Still Required

  • Virtual I-9 document review has yet to become a rule. DHS published a proposed rule in 2022 indicating a willingness to move in this direction. However, at this time, employers are still required to review I-9 documents in person, even in in the remote employment context.

On March 10, U.S. Citizenship and Immigration Service (USCIS) issued an announcement with comprehensive guidance on parole for international entrepreneurs. This program provides an opportunity for some foreign nationals who may not meet the more rigorous requirements of legacy U.S. investor visa programs.

USCIS will now use its discretionary parole authority to issue, on a case-by-case basis, a period of authorized stay to foreign national entrepreneurs who hold a substantial financial interest in a start-up entity and can demonstrate that their presence in the United States would provide a significant public benefit via the start-up’s potential job creation and growth.

The recently issued guidance includes the U.S. Department of Homeland Security’s criteria for evaluating these parole applications and establishes application requirements specifically tailored to capture information necessary for USCIS to complete its adjudication.

Applicant Requirements

Applicants must demonstrate key elements to qualify for this type of parole. They must have central and active roles in the operations of start-ups and they must also have a substantial ownership interest, defined by USCIS as at least a 10% ownership stake. Ownership interest can be reduced after the granting of the initial parole, but cannot be reduced below 5%.

Start-Up Entity Requirements

Qualified start-ups must:

  • Be a corporation, limited liability company, partnership, or other entity organized under federal law or the laws of any state, that conducts business in the United States;
  • Not be primarily engaged in the offer, purchase, sale, or trading of securities, futures contracts, derivatives, or similar instruments;
  • Have formed within the five years immediately preceding the date the applicant filed the initial parole application and lawfully doing business during any period of operation since its date of formation; and
  • Be an entity with substantial potential for rapid growth and job creation.

Requisite Amount of Investment for the Program

Demonstration of potential for rapid growth and job creation means that within 18 months prior to filing Form I-941, the investor(s) made necessary qualified investments. The necessary investment amount automatically adjusts every three years per the Consumer Price Index for All Urban Consumers. The most recent amounts are $250,000 if filing before Oct. 1, 2021 and $264,147 if filed on or after Oct. 1, 2021.

To be considered a qualified investment, applicants must submit evidence that the investment was made in good faith. Evidence must include records that show the trail of lawfully derived capital from a qualified investor into the start-up.

What Defines a Qualified Investor?

A qualified investor may be a U.S. citizen or legal permanent resident, or an organization in the United States and operated through a legal entity organized under the laws of the United States or any state, that is majority owned and controlled, directly or indirectly, by U.S. citizens or legal permanent residents of the United States.

Qualified investment may not come directly or indirectly from:

  • The entrepreneur;
  • The entrepreneur’s parents, spouse, brother, sister, son, or daughter;
  • Any corporation, limited liability company, partnership, or other entity in which the entrepreneur or their parents, spouse, brother, sister, son, or daughter directly or indirectly has any ownership interest.

Applicants must be able to demonstrate an external investment in the start-up. While applicants may invest in the company, those investments cannot be used to meet requirements for the program.

The program also has requirements of investors. Applicants must show regular investments from investors into start-up entities. Proof of investment means that in the five years prior to application:

  • The qualified investor made investments in start-up entities in exchange for equity, convertible debt, or other security convertible into equity commonly used in financing transactions within their respective industries comprising a total in such five-year period of no less than the investment amount in the chart below
  • at least two such entities each either created five or more qualified jobs or generated revenue of at least the amount in the chart below, with average annualized revenue growth of 20% minimum prior to any investment by individuals or organizations.
  • The following table outlines the required amount of investment and revenue for qualified investors’ prior investments, which varies based on the date the applicant filed the Form I-941.

Required Investment and Revenue Amounts for Qualified Investors’ Prior Investments

Filing DateInvestment AmountRevenue Amount
Before October 1, 2021$600,000$500,000
On or after October 1, 2021$633,952$528,293

USCIS may initially approve an applicant for a parole period of up to 30 months. USCIS also may approve a single request for re-parole at its discretion for an additional period of up to 30 months. An entrepreneur’s spouse and children seeking parole as derivatives must apply individually by filing Form I-131, Application for Travel Document. Spouses of entrepreneur parolees, after being paroled into the United States, may be eligible for work authorization by filing Form I-765, Application for Employment Authorization with USCIS. Children of the entrepreneur are not eligible for work authorization.

Though the International Entrepreneur Parole Program provides an alternative option for entrepreneurs in start-ups, it does not provide a path to permanent residency.

The guidance on the International Entrepreneur Parole Program, contained in Vol. 3 of the Policy Manual, is effective immediately and applies prospectively to applications filed on or after March 10, 2023. The policy change addresses:

  • Criteria for consideration and definitions for the applicant, start-up entity and the qualified investment/grant/award, and guidance on relevant evidence for the application
  • Guidance on the application process for the entrepreneur applicant and their family
  • The discretionary nature of the adjudication
  • Conditions on the initial grant of the parole, additional parole period, and termination of parole

Those with questions on the International Entrepreneur Parole Program should consult with experienced immigration counsel.