When working on a beneficiary’s H-1B extension, I-140, or I-485 filing, we would send a checklist to the beneficiary listing information and documents that we need to prepare the petition or application. One of the items listed is a copy of the most recent I-94.
We often encounter a situation where the beneficiary is shocked to find out that their I-94 has already expired after downloading it online (http://www.cbp.gov/i94) and seeing it for the first time many months or sometimes years after they last arrived. Beneficiaries in disbelief would ask why their I-94 is a few months or even a few years short of the approved maximum duration of stay and can they still stay in the U.S. and continue with their next steps?
Generally, an I-94 may show an earlier “admit until date” because of CBP error, or the Beneficiary entered with a passport that was expiring earlier than the latest date beneficiary may stay in the country.
Below is a recent sample showing an incorrect I-94 due to CBP error. The incorrect I-94 shows an “admit until date” of 08/29/2021 even though the approved H-1B was valid until 09/01/2022.
This beneficiary was advised to go to the nearest Deferred Inspection Sites (DIS) which is often located in an international airport. You may search the closest DIS on this website and set up an appointment to appear in person. In our area, BWI and IAD will generally allow you to go in without an appointment and may fix errors on the spot. You should bring documents such as the incorrect I-94, the approved petition showing the maximum duration of stay, and evidence of having maintained status since you last entered (such as pay stubs or employment verification letter). If you live far from a DIS, you may also try calling or emailing the DIS directly to resolve the error.
Now, if CBP purposefully reduced your period of stay because you entered with a passport that was expiring earlier than the maximum period you are allowed to stay, then your “admit until date” will match the expiration date of your passport. If that happens, the fix is not so clear or straightforward.
Even after you’ve renewed your passport, you may not be able to get the corrected I-94. Some DIS stand by their decision to shorten the I-94 and argue that it is their policy NOT to “update”. Ohio is one region where they do not update I-94. On the west coast, our clients have found success in San Diego but experienced pushback from other major airports in the state. On the east coast, we can confirm that updating the I-94 with a new passport is not an issue at BWI, IAD, and JFK. Sometimes, you may even call the CBP office and they may be able to update without you having to go to an airport in person.
We can also confirm that some clients have flown to another state and asked a DIS there to update their I-94 after initially being refused by a local DIS.
It is therefore important to check your I-94 upon entry so that in case your stay has been cut short due to an expiring passport, you can start fixing this issue as soon as possible and if that does not work you can ask employers to file for an extension. Checking your I-94 as soon as you arrive puts you in the best position to avoid being out of status.