Employers should take these steps when an employee’s I-94 is nearing expiration. Read to stay compliant with immigration rules and avoid penalties.
Many U.S. employers hire foreign nationals to bridge the growing skill gap in industries such as tech and healthcare. However, one important aspect of hiring non-immigrant workers is ensuring compliance with USCIS guidelines and maintaining a valid Form I-94 record, as it proves their lawful presence and allows them to work in the country.
Employers who fail to manage this document often risk legal complications, business disruptions, and hefty penalties.
This article discusses the step-by-step process employers must follow if their employee’s I-94 record is about to expire or has already expired.
What is Form I-94?
Form I-94, also referred to as the “Arrival/Departure Record,” is a crucial document that the U.S Customs and Border Protection (CBP) issues to foreign nationals who are entering the United States. It confirms the lawful presence of non-U.S. citizens and contains the following details:
The date of entry into the U.S.
The class of admission, such as H-1B, L-1, F-1, etc.
The “Admit until date”, which means till when the individual is authorized to stay in the country.
Who Requires Form I-94?
Generally, Form I-94 record is issued to non-U.S. citizens, including:
Tourists (B-2 visa)
Students arriving to pursue academic or vocational education (F-1 or M-1 visas)
Workers coming for short-term employment (H-1B, L-1, O-1, etc.)
Business visitors (B-1 visa)
Exchange visitors participating in cultural or educational exchange programs (J-1 visa)
Nonimmigrants applying for a change or extension of status
Most Canadian citizens who are visiting for short-term business or tourism.
How is Form I-94 Issued?
Air or sea travel: The CBP will automatically create a digital I-94 record for individuals who arrive by air or sea. To access their I-94 record, individuals can visit the official website of CBP and enter the required details.
Land travel: Individuals who enter the U.S. through a land border usually get a paper Form I-94.
To apply for the record, the individuals can either apply at the port and pay a fee of $6, or they can apply online up to 7 days before their intended entry using the CBP online system.
Why is it Important to Maintain a Valid I-94 Record?
Maintaining a lawful I-94 record is a mandatory requirement for all foreign nationals because:
Proof of legal entry and status: The most important purpose of an I-94 record is to demonstrate a lawful presence for all foreign nationals. It ensures the individual has entered the U.S. legally and has complied with the immigration guidelines.
Required for employment and government services: Many employers and government agencies (such as those issuing driver’s licenses or Social Security numbers) require a valid I-94 to verify an individual’s eligibility for employment or access to services.
Prevents overstays and legal penalties: Maintaining an up to date I-94 helps avoid accidental overstays, which can lead to serious consequences such as deportation, fines, or being barred from re-entering the U.S.
Essential for visa extension: Form I-94 is a vital document for applicants who want to extend their stay, change their visa type, and adjust their immigration status.
Supports travel documentation and reentry: Form I-94 helps non-immigrants during their future travel by serving as proof of lawful entry.
Form I-94 Expiration: Step-By-Step Process for Employers
Now that we understand the importance of Form I-94, it is essential to understand the steps employers must take to ensure compliance with immigration guidelines.
Track I-94 expiry dates: Employers often think that the visa or I-797 approval notice determines the period of authorized stay for an employee, but in reality, it’s the Form I-94 record.
To avoid legal consequences, employers must regularly keep track of their employees’ I-94 records’ expiration dates and prepare their next steps accordingly.
Review the eligibility for extension: Employers must carefully review whether the employee is eligible for an extension or change of status. Employers must check:
The employee's current visa category
The expiration date on their Form I-94
Time spent in current visa status
Any change in employment conditions
Any recent USCIS filings or approvals related to the employee's status
Make sure the review is done early, typically 180-200 days before the expiration, as this will allow you to calmly proceed with the next steps and avoid last-minute chaos.
File an extension: If the employee is eligible for an extension, then the employer must file a new Form I-129 (Petition for a Nonimmigrant Worker) before the employee’s I-94 record expires.
Once the petition is filed, the employee can work lawfully in the United States for up to 240 days while USCIS processes the petition.
Maintain proper documentation: Securely save all essential documents such as copies of Form I-94, I-797 approval notices, filed extension receipts, visas, and passports. Maintaining proper documentation will help employers stay compliant if USCIS conducts an unexpected site visit or audit.
Consult with your attorney: It is important to keep your legal counsel updated so they can guide you and help you avoid serious legal and financial consequences.
What to Do If Your Employee’s I-94 Record Is Already Expired?
If the employee’s I-94 record has already expired, the employer must act proactively to avoid legal consequences. Some mandatory steps employers must take include:
Immediately cease employment: If no extension or change of status was previously filed, employers must terminate the employment as the employee is no longer authorized to work in the United States.
Consult your legal counsel: Consult your immigration attorney and thoroughly evaluate the situation. Your legal counsel will help you with your next steps, ensuring compliance with the USCIS guidelines.
Inform the employee: Arrange a formal meeting with the employee and inform them about the situation and what steps they are required to follow.
Document essential information: Document every interaction and save all documents, such as the expired I-94 record, records of internal communication, and steps that were taken.
Rehire only after lawful reentry or status restoration: Rehire the employee only if they restore their lawful status by leaving the U.S. and reentering with their new Form I-94.
Best Practices for Employers to Ensure Compliance
Implement a centralized I-94 tracking system: Leverage a reliable system that will enable you to track important details related to the I-94 record in a systematic manner.
Conduct regular internal audits: Regularly conduct audits to identify potential errors early and review Form I-94 records for all foreign workers.
Train HR managers: Organize regular training sessions to help HR teams understand the significance of Form I-94 and what procedures they are required to follow to ensure compliance.
Maintain all documentation: Securely maintain copies of I-94 records, visa stamps, USCIS notices, and filing receipts to stay audit-ready.
Have a contingency plan: Work with your immigration attorney to create a realistic contingency plan in case the petition is denied, the I-94 record has expired, or any other issues interrupt the process.
Summing up
Form I-94, also known as the “Arrival/Departure Record,” is an important document that the CBP issues to all foreign nationals when they enter the United States. The main purpose of this document is to determine the lawful presence of non-U.S. citizens. Once Form I-94 expires, the individual’s stay is considered illegal, and their employer is required to immediately terminate their employment if no extension or change of status was filed before the expiration date.
To ensure compliance with USCIS guidelines, employers are required to regularly check the expiration date of this record, file a timely extension, and consult with their legal counsel.
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