As we approach 2025 with the threat of impending mass deportation1 of those without legal immigration status in the United States (U.S.), it is important for foreign nationals lawfully here to remember what documents they are obligated to maintain in their possession under federal law. In addition, any assessment of legal status by law enforcement officials must appreciate the multitude of immigration statuses and related documentation they must be capable of recognizing. Consider the issue of determining work authorization for employers during the completion of Form I-9. Employers have a plethora of resources to assist them, such as the M-274 Handbook for Employers2, I-9 Central3 website, and the E-Verify4 website. Recently, Form I-9's list of acceptable documents to prove work authorization referenced in List C was updated by adding a link to numerous examples of employment authorization document types issued by the U.S. Department of Homeland Security. This point is relevant to underscore the broad scope of documents issued just for proof of legal work authorization in the U.S.
Foreign Nationals – The Registration Obligation
- What is registration?
Did you know that every "alien" (not a U.S. citizen or national) 18 years of age or older must "at all times" have in their possession while in the U.S., the certificate of alien registration or an alien registration receipt card in the form prescribed by the regulations?5
- What is the penalty for failure to carry this registration certificate/receipt card?
The failure of these aliens to have in their possession the required certificate or card exposes them to arrest for a federal misdemeanor and, upon conviction, a fine not to exceed $100 or imprisonment for not more than thirty days, or both.6
- So, what qualifies as evidence of a registration certificate/receipt card?
8 CFR §264.1(b) provides a list of twelve options:
1. I-94, Arrival-Departure Record—Aliens admitted as nonimmigrants; aliens paroled into the U.S. under section 212(d)(5) of the INA; aliens whose claimed entry prior to July 1, 1924, cannot be verified, they having satisfactorily established residence in the U.S. since prior to July 1, 1924; and aliens granted permission to depart the U.S. without the institution of deportation/removal proceedings. |
2. I-95, Crewmen's Landing Permit—Crewmen arriving by vessel or aircraft. |
3. I-184, Alien Crewman Landing Permit and Identification Card—Crewmen arriving by vessel. |
4. I-185, Nonresident Alien Canadian Border Crossing Card—Citizens of Canada or British subjects residing in Canada. |
5. I-186, Nonresident Alien Mexican Border Crossing Card—Citizens of Mexico residing in Mexico. |
6. I-221, Order to Show Cause and Notice of Hearing—Aliens against whom deportation proceedings are being instituted. |
7. I-221S, Order to Show Cause, Notice of Hearing, and Warrant for Arrest of Alien—Aliens against whom deportation proceedings are being instituted. |
8. I-551, Permanent Resident Card—Lawful permanent resident of the U.S. |
9. I-766, Employment Authorization Document. |
10. Form I-862, Notice to Appear—Aliens against whom removal proceedings are being instituted. |
11. Form I-863, Notice of Referral to Immigration Judge—Aliens against whom removal proceedings are being instituted. |
12. Valid, unexpired nonimmigrant admission or parole stamp in a foreign passport. |
- What if the registration document is lost or not available for any reason?
The foreign national is required to apply immediately for a replacement.
- What about the I-94 admission record available here?
On March 27, 2013, U.S. Customs and Border Protection (CBP) published an Interim Final Rule (IFR) in the Federal Register7 effective on April 26, 2013 recognizing the I-94 admission record to include the form in a paper or electronic format. It is interesting to note that in the Executive Summary in the IFR, it notes that employers would benefit "from their employee's prompt access to their electronic Form I-94..." In addition, the comments speculate that "...we assume that employers with Internet access will allow their employees to use their Internet connection to access their electronic Forms I-94." The definition of the term "original I-94" includes, but is not limited to, "any printout or electronic transmission of information from DHS systems containing the electronic record of admission or arrival/departure."8 As to the definition of "possession" of an I-94, it includes obtaining a copy or printout of electronic evidence of admission or arrival/departure from the "appropriate" CBP systems.
Thus, it is critical for nonimmigrants to make sure to print out their I-94 record from the CBP system to carry with them. Another option that should work is for a visa holder to maintain a digital record of the I-94 among the photos on their cell phone. Unfortunately, we don't have that reasonable alternative reflected in the regulations. Note that the CBP I-94 website warns law enforcement officials to contact CBP for information about an individual for official purposes and that the I-94 website may be used for personal, non-commercial purposes. I would propose that law enforcement officers must review this data before proceeding with any enforcement action tied to immigration status or to consult the SAVE system outlined below in this article. Of course, the CBP I-94 system is not infallible and is subject to error.9 Please refer to the example of the I-94 below and here.10
The paper I-94 with an admission stamp is a rare siting nowadays, but below is an example:
The I-94 admission record may also be at the bottom of the I-797A11 approval notice issued by U.S. Citizenship and Immigration Services (USCIS). Typically, the period of authorized admission on the USCIS I-94 form is due to an approved change of status or extension of status of the nonimmigrant. Unfortunately, the CBP system does not reflect this information, as noted on the I-94 record issued by USCIS. At least a copy of the entire I-797A approval notice should be retained in the possession of the foreign national. In addition, the filing of an extension request by many work-authorized nonimmigrants results in an automatic extension of their work authorization in the U.S. for up to 240 days while USCIS adjudicates the application.12 It is important for such applicants for extension or change of status as well to retain a copy of their I-797 receipt from USCIS. Another option is to keep at least a digital copy of these forms on the beneficiary's cell phone, but the regulations don't recognize the digital scan option. So, it is advisable to keep a scan of at least the approval notice or I-797 receipt in the beneficiary's possession.
Please refer to the example of the I-797A approval notice below. It is important to remember that the Immigration Reform and Control Act of 1986 (Pub. L. No. 99-603) (IRCA) required that an electronic system be created and available to federal, state, and local agencies needed to verify the immigration status of noncitizen applicants for certain types of federally funded benefits.13 Later, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Pub. L. No. 104-193) (PRWORA) modified the welfare system of the U.S. to restrict the eligibility of immigrants for public benefits, thus expanding the requirement to verify immigrant eligibility for public benefits. USCIS developed the SAVE online service to provide confirmation of immigration status and acquired U.S. citizenship via naturalization to federal, state, local, territorial, and tribal agencies required to verify immigration status. Currently, almost 1,200 agencies nationwide use SAVE. Note that SAVE cannot:
- Determine the applicant's eligibility for a specific benefit or license. Such determinations are made by the benefit issuing or licensing agency.
- Verify the citizenship status of U.S.-born citizens.
- Provide employment eligibility verification to U.S. employers.
- Share information provided by user agencies for administrative (non-criminal) immigration enforcement purposes.14
In conclusion, until we know more about the potential actions to deport those foreign nationals not authorized to be present in the U.S., compliance with the long-standing registration requirements of our current immigration laws is an important lesson to remember. It is also essential to consider the gravity of verifying status correctly.
Footnotes
1 Special Report: Mass Deportation Devastating Costs to America, Its Budget and Economy, published by the American Immigration Council (Oct. 2, 2024). https://www.americanimmigrationcouncil.org/research/mass-deportation .
2 https://www.uscis.gov/i-9-central/form-i-9-resources/handbook-for-employers-m-274 .
3 https://www.uscis.gov/i-9-central .
4> https://www.e-verify.gov/ .
5 See §§ 221(b), 262, and 264 of the Immigration and Nationality Act, as amended (INA). Foreign nationals who have been issued a visa at a U.S. consular post have been registered.
6 See 8 CFR §264(e).
7 78 Fed. Reg. 18457 (Mar. 27, 2013).
8 8 CFR §1.4 (d).
9 See https://i94.cbp.dhs.gov/help, https://www.uscis.gov/sites/default/files/document/guides/C3en.pdf , and https://www.cbp.gov/about/contact/ports/deferred-inspection-sites .
10 See https://www.uscis.gov/i-9-central/form-i-9-acceptable-documents .
11 See https://www.uscis.gov/forms/filing-guidance/form-i-797-types-and-functions .
12 See 8 CFR §274a.12(b)(20) and https://www.uscis.gov/i-9-central/form-i-9-resources/handbook-for-employers-m-274/70-evidence-of-employment-authorization-for-certain-categories/77-extensions-of-stay-for-other-nonimmigrant-categories Other categories include: CW-1, H-1B, H-1B1, H-2A, H-2B (see below for temporary portability guidance), H-3, L-1, O-1, O-2, P-1, P-2, P-3, R-1, TN, A-3, E-1, E-2, E-3, G-5, and I. Individuals in the E-1 and E-2 categories may be employers or employees.
13 See https://www.uscis.gov/save/about-save/save-governing-laws .
14 See https://www.uscis.gov/save/about-save/about-save .
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.