Philadelphia Immigration Lawyer Blog

It is often required when filing for adjustment of status or when applying for admission to the United States that the applicant prove that he or she did not overstay a prior period of authorized stay in the United States.

Theoretically, that should be easy. When the person previously left the U.S. by air or sea, they would have turned in their I-94 and the fact of their timely departure would have been recorded in the DHS database. The I-94 is also known as an Arrival/Departure Record and upon entry into the United States, it's endorsed with one's date and place of arrival, one's status (for example, F or H or L) and the end date of one's authorized stay (usually a specific date but sometimes marked as d/s - duration of status for certain visa holders such as F student visa holders).

But often, when the alien departs the United States, his or her I-94 is mistakenly not collected and so the departure is not included in the DHS database or the I-94 is collected but the data is incorrectly entered into the database. And, if the person left the U.S. by a land port, the I-94 would not be collected at all. This is a problem if at a later date, the alien needs to prove that they departed the U.S. when they were supposed to.

Remember that the burden of proving timely departure is on the traveler—not the U.S. government. Here’s what U.S. Customs and Border Protection (CBP) says:

"You must provide U.S. Customs and Border Protection (CBP) sufficient information so we can record your timely departure from the United States. This will close out your earlier record of arrival to this country. If you do not validate a timely departure from the United States, or, if you cannot reasonably prove otherwise when you apply for admission to the U.S. in the future, CBP may conclude you remained in the U.S. beyond your authorized stay. If this happens, the next time you apply to enter the U.S. your visa may be subject to cancellation or you may be returned immediately to your foreign point of origin."

So what should a person do to make sure that the U.S. has a record of the fact that they obeyed the law and departed the U.S. when they were supposed to? The American Immigration Lawyers Association has just issued a practice tip on this issue and here is what is recommended:

If your I-94 was not surrendered upon departure, then return it to the CBP. Send the card to: ACS – CBP SBU, 1084 South Laurel Rd., London, Kentucky 40744. Do not return it to a consulate, embassy or even a local CBP office.

But even doing this may not be enough. When you send in your I-94, send other documents to prove the actual day of departure. For example, send in a used airline ticket or boarding pass, a copy of a passport stamp showing date of arrival in home country, a pay slip from employment outside of U.S. after you departed, a credit card slip showing purchases made outside of the U.S. after departure, a school attendance record, etc.

When you send all of this in, include a written request on boldly colored paper asking that your date of departure be entered in the database—not the date your I-94 is received by the processing center.

When you next reenter the U.S., bring copies of all this with you just in case there is still a question about your prior departure. Even after you send your I-94 and other documents, the information might still not be entered or it still could be entered incorrectly and so having copies of what you sent should help.

Finally, if you want to find out if your I-94 was, in fact, received and the data entered, you can send in a Freedom of Information Act (FOIA) request and ask for verification of the recorded date of departure and a copy of the returned I-94 (of course, keep a copy yourself before sending it in). Send the request to CBP’s FOIA office at the following address: U.S. Customs and Border Protection, 1300 Pennsylvania Ave., NW Attn: Mint Annex Building, FOIA Division, Washington, D.C. 20229.

The CBP advises that you should wait about 2 months after sending in the I-94 to ask for verification through FOIA.