As a family-based immigration attorney, I frequently assist individuals who enter the United States under the Visa Waiver Program (VWP) via the Electronic System for Travel Authorization (ESTA). A critical aspect of their journey towards permanent residency is understanding the role of the I-94 form in the adjustment of status process. This article aims to demystify the I-94 for ESTA holders considering adjusting their status via a marriage-based Green Card case.

What is the I-94?

The I-94, "Arrival/Departure Record," is a document issued by U.S. Customs and Border Protection (CBP) to foreign visitors upon entry to the U.S. It indicates the terms of your stay, including the type of admission and the date by which you must depart the country. For ESTA travelers, the I-94 typically authorizes a stay of up to 90 days.

The Role of I-94 in the Adjustment of Status Process:

• Establishing Lawful Entry:

• The I-94 is pivotal in proving that you entered the U.S. lawfully. This legal entry is a fundamental requirement for adjusting your status, particularly if you are applying through marriage to a U.S. citizen or Green Card holder.

• The form serves as an official record that you were inspected and admitted or paroled into the U.S., a key factor that USCIS considers in Adjustment of Status (From I-485) applications.

• Determining Period of Authorized Stay:

• The I-94 details your authorized period of stay, critical for ensuring compliance with U.S. immigration laws. Staying beyond this period without filing for Adjustment of Status (From I-485) can lead to unlawful presence, affecting your eligibility for future immigration benefits. If you have a mistake on your I-94 or are unable to locate it you can read about what to do here.

• For ESTA holders, adhering to the 90-day period is especially crucial. Overstaying can result in being barred from using the VWP in the future and complicate subsequent visa or green card applications.

• Adjustment of Status Considerations:

• It’s advisable to file for Adjustment of Status (From I-485) while your I-94 is still valid to avoid falling out of status. An expired I-94 at the time of filing can raise questions about your continuous lawful presence in the U.S.

• If you file for Adjustment of Status (From I-485) after your I-94 expires this case must be perfectly prepared and filed as you want to make sure your case will be successful. You don’t want to end up in a situation where you have filed your case and it ends up being denied for a seemingly benign thing such as failing to timely respond to a USCIS Request for Evidence document. Further, if you do something such as travel internationally without an advance parole you would have to wait for at least a year and a half to enter the US as you’d have to process your Green Card abroad. This would be stressful as you would be separated from your spouse and unable to use your ESTA again due to a prior visa violation by overstaying yoru 90 day ESTA. 

• Impact on Future Travel:

• Exiting the U.S. after your I-94 has expired but before your Adjustment of Status (From I-485) is approved can have serious consequences, including being barred re-entry under the VWP. This situation often requires obtaining a visa for future U.S. travel which will likely be denied due to the overstay.

• If you need to travel internationally while your Adjustment of Status (From I-485) application is pending, applying for Advance Parole is necessary. However, leaving the U.S. without it can result in the abandonment of your Adjustment of Status (From I-485) application.

Navigating the Adjustment of Status Process:

• Timely Filing:

• Filing your Adjustment of Status (From I-485) application before your I-94 expires is essential for maintaining lawful status. This preemptive action is crucial to avoid the complexities associated with overstaying under the VWP. We file cases like this for clients all the time and prefer to apply for Adjustment of Status before your 90-day stay expires.

• The timing of your Adjustment of Status application can significantly impact its success. Filing too early or late in your authorized stay can lead to unnecessary scrutiny or even denial of your application.

• Documentation:

• Keeping a copy of your I-94, along with other crucial immigration documents like your passport and ESTA approval, is vital when filing for Adjustment of Status. These documents collectively establish your legal entry and identity. 

• In addition to your I-94, compiling comprehensive evidence supporting your Adjustment of Status application, such as proof of your relationship with a U.S. citizen spouse, is imperative.

• Legal Implications:

• Understanding the legal implications of filing for Adjustment of Status as an ESTA holder is vital. Missteps in the process can lead to severe consequences, including deportation and future inadmissibility.

• It's crucial to be fully aware of the changes in immigration policies and how they may affect your Adjustment of Status application. Staying informed and compliant with current laws is key to a successful adjustment.

For ESTA holders, understanding the importance of the I-94 form is pivotal in the Adjustment of Status process. Adhering to the authorized stay period, addressing the nuances of intent, and ensuring proper legal guidance are crucial steps towards achieving your goal of permanent residency in the United States.

As an attorney specializing in family-based immigration, I am committed to guiding you through this process. If you are an ESTA holder contemplating adjustment of status, feel free to contact me for comprehensive legal support tailored to your unique situation.

Case Study: The Cautionary Tale of John's Adjustment of Status Journey

Background:

John, a graphic designer from London, United Kingdom, entered the United States under the Visa Waiver Program (VWP) using the Electronic System for Travel Authorization (ESTA) for what was intended to be a short visit to attend a design conference. During his stay, he reconnected with Sarah, a U.S. citizen and an ex girlriend. Their friendship quickly blossomed into a romantic relationship, leading to their decision to marry. Excited about starting their life together, John remained in the U.S. and they married within his 90-day ESTA admission period.

Failure to Adhere to Timely Filing:

John, unfamiliar with U.S. immigration laws, did not fully grasp the importance of the timing in filing for an Adjustment of Status. He and Sarah delayed filing the Adjustment of Status application, thinking there was no rush as they were legally married. They submitted the application after John's I-94 had expired, unknowingly complicating their situation.

Consequences:

• Status Violation: By the time John and Sarah filed the AoS application, John had already overstayed his 90-day admission under ESTA. This overstay was a violation of his VWP conditions, leading to an unlawful presence in the U.S.

• Application Scrutiny: USCIS scrutinized John's application more rigorously due to his overstay. The overstay raised red flags about his intent and compliance with immigration regulations.

• Legal Complications: John’s overstayed period triggered potential inadmissibility issues. His case became more complex legally, requiring detailed explanations and additional legal assistance to address the overstay in his application.

• Travel Limitations: During the pending status of his Adjustment of Status application, John was advised not to travel outside the U.S., as re-entry might not be guaranteed. This restriction meant he couldn't visit his family back in the U.K. which put a lot of stress on John as his mother was not well. The stress on John led to stress placed on his marriage. Now John was facing a rocky marriage and a visa overstay which would impact his future US immigration options if he didn’t complete his Green Card application through marriage.

Lessons Learned:

John’s case underscores the importance of adhering to the guidelines in the "Navigating the Adjustment of Status Process." Timely filing of the Adjustment of Status application is crucial, especially for those who entered the U.S. under ESTA. Delays or missteps in the process can lead to severe legal consequences, putting one's future in the U.S. at risk. John and Sarah’s situation serves as a cautionary tale for ESTA holders considering Adjustment of Status. It highlights the need for meticulous adherence to immigration laws and timelines. Consulting with an experienced immigration attorney early in the process is critical to navigating this complex journey successfully.

Should you or your loved one have any questions or need representation, please do not hesitate to call us, email us at info@khunkhunlaw.com, or review other options to get in touch with us for an immigration consultation. We have represented many clients with successful results even with the most difficult set of facts.