18457

Rules and Regulations Federal Register Vol. 78, No. 59

Wednesday, March 27, 2013

This section of the FEDERAL REGISTER that CBP receives public comment that Public Participation contains regulatory documents having general identifies a credible basis for the Agency Interested persons are invited to applicability and legal effect, most of which to conclude that automation of the form are keyed to and codified in the Code of participate in this rulemaking by I–94 should be delayed, CBP retains submitting written data, views, or Federal Regulations, which is published under discretion to extend implementation for 50 titles pursuant to 44 U.S.C. 1510. arguments on all aspects of this interim an additional thirty days. If CBP final rule. U.S. Customs and Border The Code of Federal Regulations is sold by concludes that such extension is Protection (CBP) also invites comments the Superintendent of Documents. Prices of appropriate, the Agency will post the that relate to the economic, new books are listed in the first FEDERAL new implementation date on its Web environmental, or federalism effects that REGISTER issue of each week. site, www.cbp.gov, no later than April might result from this regulatory 29, 2013. change. Comments that will provide the Comment date: Written comments DEPARTMENT OF HOMELAND most assistance to CBP will reference a must be submitted on or before April 26, SECURITY specific portion of the rule, explain the 2013. reason for any recommended change, and include data, information or 8 CFR Parts 1, 210, 212, 214, 215, 231, ADDRESSES: You may submit comments 235, 245, 245a, 247, 253, 264, 274a, and identified by docket number, by one of authority that support such 286 the following methods: recommended change. Written comments must be submitted on or • [USCBP–2013–0011; CBP Dec. No. 13–06] Federal eRulemaking Portal: http:// before April 26, 2013. CBP will consider RIN 1651–AA96 www.regulations.gov. Follow the those comments and make any changes instructions for submitting comments appropriate after consideration of those Definition of Form I–94 To Include via docket number. comments. CBP expects to publish a Electronic Format • Mail: Regulations and Rulings, final rule, which will respond to Office of International Trade, U.S. comments received, 18 months from the AGENCY: U.S. Customs and Border Customs and Border Protection, close of the comment period. Protection, DHS. Attention: Border Security Regulations Executive Summary ACTION: Interim final rule. Branch, 90 K Street NE., 10th Floor, Washington, DC 20229. The Form I–94 is issued by DHS to SUMMARY: The Form I–94 is issued by Instructions: All submissions received certain aliens upon arrival in the United the Department of Homeland Security States or when changing status in the (DHS) to certain aliens and is used for must include the agency name and docket number for this rulemaking. All United States. The Form I–94 is used to various purposes such as documenting document arrival and departure and status in the United States, the approved comments received will be posted without change to http:// provides evidence of the terms of length of stay, and departure. DHS admission or parole. U.S. Customs and generally issues the Form I–94 to aliens www.regulations.gov, including any personal information provided. For Border Protection (CBP), a component of at the time they lawfully enter the DHS, generally issues the Form I–94 to United States. This rule adds a new detailed instructions on submitting comments and additional information aliens at the time they lawfully enter the definition of the term ‘‘Form I–94’’ that United States. Aliens use the Form I–94 includes the collection of arrival/ on this rulemaking process, see the ‘‘Public Participation’’ heading of the for various purposes such as completing departure and admission or parole employment eligibility verification (the information by DHS, whether in paper SUPPLEMENTARY INFORMATION section of this document. Form I–9), applying for or electronic format. The definition also benefits, or to present to a university to clarifies various terms that are Docket: For access to the docket to verify eligibility for enrollment. associated with the use of the Form I– read comments received, go to http:// Information gathered on the Form I–94 94 to accommodate an electronic www.regulations.gov. Submitted is also used for statistical purposes. version of the Form I–94. This rule also comments may also be inspected on adds a valid, unexpired nonimmigrant regular business days between the hours Transition to an Automated Form I–94 DHS admission or parole stamp in a of 9 a.m. and 4:30 p.m. at Regulations The Form I–94 is currently a paper foreign to the list of documents and Rulings, Office of International form. For aliens arriving by air or sea, designated as evidence of alien Trade, U.S. Customs and Border the carrier distributes the Forms I–94 to registration. These revisions to the Protection, 90 K Street NE., 10th Floor, the aliens required to complete the form regulations will enable DHS to Washington, DC. Arrangements to while en route to the United States. The transition to an automated process inspect submitted comments should be alien presents the completed form to the whereby DHS will create a Form I–94 in made in advance by calling Mr. Joseph CBP Officer at primary inspection. The an electronic format based on passenger, Clark at (202) 325–0118. officer stamps the Form I–94 and the passport and visa information DHS FOR FURTHER INFORMATION CONTACT: alien’s passport, detaches the bottom currently obtains electronically from air Suzanne Shepherd, CBP Office of Field portion of the form, which is the and sea carriers and the Department of Operations by telephone (202) 344–2073 departure portion, and returns it to the State as well as through the inspection or by email, alien along with the alien’s passport. process. [email protected]. The admission stamp contains the port DATES: Effective date: This interim rule of arrival and date of arrival and is is effective April 26, 2013. In the event SUPPLEMENTARY INFORMATION: annotated with the class of admission

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and admitted-to date. The top portion of through the Web site the traveler will save the time and expense associated the form—the arrival portion—is sent to need to input information from his/her with lost Forms I–94, as travelers will a data entry facility where the passport; thus, a third party without simply be able to print out a new copy information on the form is entered into access to the traveler’s passport will not from the Web site if needed rather than CBP’s computer systems. The departure be able to access the Form I–94 from the file an I–102, as currently required, portion of the Form I–94 retained by the Web site. If needed, aliens may print out which has a fee of $330 and a time alien may be shown to government or a copy of the Form I–94 from the Web burden of 25 minutes. CBP estimates other stakeholders when required. The site and present it to third parties in lieu that the time to access the Web site and alien turns in the departure portion of of the departure portion of the paper print the electronic Form I–94 to be 4 the Form I–94 upon departure, generally form. CBP intends to continue to minutes. to the carrier; the carrier returns the provide a paper Form I–94 to certain Additionally, carriers will no longer forms to CBP. classes of aliens, such as certain have to print, store, and distribute the With the implementation of the refugees, asylees, and parolees, and forms, and CBP will not have to process Advance Passenger Information System others as requested or whenever CBP them. This will result in significant cost (APIS 1) following 9/11, CBP now determines the issuance of a paper form savings (benefits) for foreign travelers, collects information on aliens traveling is appropriate. carriers, and CBP. Guidance from the by air or sea to the United States Though in some cases CBP collects Office of Management and Budget electronically from carriers in advance APIS information for travelers arriving (OMB) states regulatory analyses should of arrival. As outlined in Table 1 below, in the United States via methods of focus on benefits and costs that accrue nearly all the information collected on transportation other than commercial air to citizens and residents of the United the Form I–94 is collected electronically and sea, CBP does not consistently States.4 In order to make this distinction via APIS. CBP also now uses the Arrival receive APIS information for these other clear, CBP provides costs and benefits of and Departure Information System methods or in some instances is unable this rule to foreign travelers as well as (ADIS), which draws information from to consistently access the information at to U.S. entities. CBP anticipates the total APIS, to electronically document an the time the traveler presents him or net benefits to both domestic and alien’s arrival and departure. Thus, for herself for inspection. Thus, at this time, foreign entities in 2013 range from $76.5 aliens arriving in the United States by CBP will still need to collect Form I–94 million to $115.5 million. Separately, air or sea, CBP obtains almost all of the information directly from travelers CBP anticipates a net benefit in 2013 of information contained on the paper arriving by other methods of between $59.7 million and $98.7 Form I–94 electronically and in transportation. CBP anticipates million for foreign travelers, $1.3 advance. The few fields on the Form I– expanding the automation of the Form million for carriers, and $15.5 million 94 that are not collected via APIS are I–94 to other methods of transportation for CBP. Net benefits to U.S. entities either already collected by the in the future. (carriers and CBP) in 2013 total $16.8 Department of State and transmitted to Because the regulations that address million. CBP seeks comment on the CBP or will be collected by the CBP the Form I–94 and its uses were written potential benefits or costs of this rule for Officer from the individual at the time at a time when a paper form was the foreign travelers. of inspection. Thus, the same data only option to collect arrival and elements found on the paper Form I–94 departure information, many of these Background will be collected and maintained in the regulations contemplate only the use of The Form I–94 the paper form. In order to enable CBP electronic Form I–94. This means that The DHS Form I–94 is generally to transition from a paper Form I–94 to CBP no longer needs to collect Form I– issued to aliens at the time they lawfully a CBP-created electronic Form I–94, 94 information as a matter of course enter the United States other than aliens CBP is adding a definition of ‘‘Form I– directly from aliens traveling to the traveling to the United States under the 94’’ in 8 CFR part 1 that allows for the United States by air or sea. Visa Waiver Program,5 or aliens who are Therefore, CBP is transitioning to an collection of Form I–94 information in otherwise exempt. See 8 CFR 235.1(h). automated process whereby CBP will either paper or electronic format. The The Form I–94 is also issued when an create an electronic Form I–94 based on definition also clarifies various terms in alien changes immigration status within the information in its databases. This 8 CFR that are associated with the use the United States. The Form I–94 is rule makes the necessary changes to the of the Form I–94 to include the used to document status in the United regulations to enable CBP to transition electronic version of the Form I–94. States, the authorized length of stay, and to an automated process. At this time, The automation provides immediate departure. Biographical information, the automated process will apply only and substantial benefits to the traveling visa and passport information, and the to aliens arriving at air and sea ports of public, to carriers, to CBP and other address and phone number where the entry.2 In order to make this a seamless stakeholders. This automation will alien can be reached while in the United transition, CBP is making the electronic eliminate most of the duplicative paper States are also collected on the Form I– Form I–94 available to aliens through a Form I–94 process and reduce wait 94. When an alien is admitted to the Web site.3 To access the Form I–94 times at passenger processing, which will facilitate entry of all travelers. The United States, the Form I–94 becomes the evidence of the terms of the 1 For more information, please see: http:// automation will eliminate the paper www.cbp.gov/xp/cgov/travel/ Form I–94 for most air and sea travelers admission. For aliens paroled into the inspections_carriers_facilities/apis/. and, with it, the 8-minute time burden; 2 Because CBP does not currently collect advance this would result in an estimated total 4 See OMB Circular A–4, page 15 (http:// travel information from aliens arriving by land, this www.whitehouse.gov/sites/default/files/omb/assets/ automation will not apply to land ports of entry at reduction of 9.6 million Forms I–94 regulatory_matters_pdf/a-4.pdf). this time. completed by paper, and an estimated 5 The Form I–94 is not required for aliens seeking 3 DHS intends to publish a privacy impact reduction of 1,276,800 paperwork admission into the United States under the Visa assessment and make it available at http:// burden hours. For more information on Waiver Program (VWP). The Form I–94W is the www.dhs.gov/privacy-documents-us-customs-and- form required for aliens seeking admission into the border-protection. For more information on the the reduction in the paperwork burden, United States under the VWP. In 2009, the ESTA privacy implications please see the Privacy section see the Paperwork Reduction Act program automated the Form I–94W in the air and of this document. section below. The automation will also sea environments.

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United States, the Form I–94 reflects the CBP Officer. See 8 CFR 231.1. In The following information currently duration and classification of parole. practice, the carrier accomplishes this is requested on the lower portion of the The Form I–94 has been used for by ensuring that each passenger Form I–94, the departure portion: approximately 50 years by DHS, its presents him/herself to a CBP Officer for • Family Name predecessor agencies, and external inspection at a U.S. port-of-entry, • First (Given) Name stakeholders for a variety of purposes. generally with the aid of security • Birth Date CBP and U.S. Immigration and Customs protocols. The Form I–94 is then • Country of Citizenship Enforcement (ICE), components of DHS, presented to the CBP Officer at primary Once an alien is admitted to the use the form to document arrival and inspection, along with the alien’s United States, the Form I–94 is evidence departure, as well as class of admission passport and any other applicable of the terms of the admission. For aliens or duration of parole. U.S. Citizenship documents and information. After the paroled into the United States, the Form and Immigration Services (USCIS), also successful completion of the inspection I–94 includes the terms of parole. CBP a component of DHS, issues Forms I–94 process, a CBP Officer stamps the alien’s collects the arrival portions of the Forms to aliens extending their authorized Form I–94 and passport. The DHS I–94 daily at each port of entry and length of stay or changing their admission stamp contains the port of boxes and mails them to a centralized immigration status while in the United arrival and date of arrival, and is data processing center for logging/ States. USCIS also uses Form I–94 annotated with the class of admission processing/scanning, and data capture. information to verify lawful admission and the authorized length of stay. The The data is then uploaded to a CBP or parole when adjudicating parole stamp contains the port of arrival database. DHS components have access immigration benefit requests, and date of arrival, and is annotated to the database that contains the Form confirming employment authorization with the duration of parole and parole I–94 information, and can use this for employers participating in USCIS’s classification. The CBP Officer retains database to verify an alien’s admission E-Verify program, or verifying the arrival portion of the Form I–94 and or parole information and immigration immigration status for benefit granting returns the departure portion and the status. Entities outside DHS, such as state and federal government agencies passport to the alien. The departure SSA or state DMVs, can verify participating in USCIS’s Systematic portion of the form is provided to the information by querying a DHS system Alien Verification for Entitlements alien to retain in his or her possession or contacting DHS. (SAVE) program. The Form I–94 is also for the duration of his or her stay and Automation of the Form I–94 at Airports used by the Social Security to surrender upon departure. In some and Seaports Administration (SSA), state agencies, circumstances, an alien is required to such as Departments of Motor Vehicles have the Form I–94 in his or her The Form I–94 was established prior (DMV), and public assistance agencies possession at all times while in the to advances in technology and the and organizations, to verify eligibility United States. Air and sea carriers are implementation of security measures for benefits. The form is used by certain responsible for presenting a completed that enable CBP to collect advance aliens for evidence of lawful admission Form I–94 for each departing alien arrival and departure information about or parole, as well as, where applicable, passenger to a CBP Officer. See 8 CFR passengers electronically. For aliens employment eligibility and eligibility 231.2(b). If the alien is departing by arriving in or departing from the United for public benefits. Information commercial air or sea carrier, he or she States by air or sea, the data elements collected by the Form I–94 is also turns in the departure portion to the collected on the paper Form I–94 provided to the Department of airline or shipping line prior to duplicate the information that CBP Commerce (DOC) for statistical departure. The carrier then returns the collects through other mechanisms. As purposes, including use by the DOC form to CBP. explained in this section (including Office of Travel and Tourism Industries The information requested on the Table 1), CBP collects this information to collect monthly visitation data and upper portion of the I–94, the arrival from APIS, visa information and for reporting of travel by country of portion, includes: information provided to CBP at the time residence to comply with the United • Family name of inspection. Nations World Tourism Organization • First (Given) Name As a result of enhanced security recommendation for reporting arrivals • Birth Date measures implemented by CBP to all countries. • Country of Citizenship subsequent to the September 11, 2001 • terrorist attacks, CBP regulations require Current Paper Form I–94 Process at Sex (Male or Female) • 7 commercial vessel carriers and Airports and Seaports Passport Issuance Date • Passport Expiration Date commercial and private air carriers to The paper Form I–94 consists of two • Passport Number electronically transmit advance manifest parts, the arrival portion and the • Airline and (if information regarding their passengers, departure portion. Air and sea carriers applicable) crew members, and non-crew members print and store the Form I–94 and • Country Where You Live (cargo flights only) arriving in and provide each alien passenger with a • Country Where You Boarded departing from the United States. blank paper Form I–94.6 Each alien • City Where Visa Was issued Passengers, crew members, and non- arriving by air or sea for whom a Form • Date Issued crew members are required to submit I–94 is required completes both the • Address While in the United States certain biographical information to the arrival and departure portions of the (number, street, city, and state) carriers, which the carriers then collect form either en route or upon arrival in • Telephone Number in the United and submit to CBP prior to the alien’s the United States. Each carrier is States Where You Can be Reached arrival in or departure from the United responsible for presenting a completed • Email Address States. The information is transmitted to Form I–94 for each arriving alien to a CBP through APIS (including eAPIS,8 as 7 Passport issuance date, passport expiration date, 6 CBP also prints Form I–94s, which are available telephone number, and email address are newer 8 eAPIS is a CBP web-based application that at ports of entry for travelers who may need an fields not found on all forms currently in provides for the collection of electronic traveler additional blank form. circulation. Continued

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applicable). See 19 CFR 4.7b, 4.64, TABLE 1— SOURCES OF DATA FOR CBP determines the issuance of a paper 122.22, 122.49a–122.49c, 122.75a, and ELECTRONIC FORM I–94 form is appropriate. For these 122.75b. individuals arriving by air and sea The information transmitted to CBP Source for carriers, an electronic Form I–94 will Data element electronic also be created. by carriers using APIS consists of Form I–94 information that appears on the The electronic Form I–94 will be created during the inspection process at biographical data page of travel Arrival Portion: documents, such as issued by Family name ...... APIS the time of admission or parole when the CBP Officer pulls information from governments worldwide, as well as First (given) name ...... APIS the traveler’s APIS record and any CCD carrier information. For passengers, Birth date ...... APIS record, and enters any additional data APIS data consists of certain Country of citizenship ...... APIS Sex (male or female) ...... APIS obtained during the inspection process. biographical information and Passport issuance date ...... APIS The same data elements found on the conveyance details collected via the Passport expiration date ..... APIS paper Form I–94 will be collected and passenger reservation and check-in Passport number ...... APIS maintained in the electronic Form I–94. processes. The information submitted Airline and Flight number (if APIS Any information the officer would have for each individual onboard the aircraft applicable). written or stamped on the paper form at or vessel includes: Country where you live ...... APIS the time of admission or parole can be • Country where you boarded APIS Full name (last, first, and, if City where visa was issued State De- entered into the electronic form. The available, middle) partment departure record is created from APIS • Date of birth via CCD. using the Arrival and Departure Date visa was issued ...... State De- Information System (ADIS) to match the • Gender (F = female; M = male) partment departure to the correct arrival record. • Citizenship via CCD. Alien travelers will be able to access • Address while in the United APIS, and and print their electronic Form I–94 via Country of residence States. may be the Web site CBP has established for • Status on board the aircraft/vessel updated this purpose: www.cbp.gov/I94. • at time type (e.g., P = of in- Travelers to whom an electronic Form passport, A = alien registration) spection. I–94 has been issued will be able to log • Passport number, if a passport is Telephone number while in Officer at on to the Web site using identifying required, or DHS-Approved travel the United States. time of information and print a copy of the document number, as applicable inspec- electronic Form I–94. In order to access tion. the Form I–94 from the Web site, the • Passport country of issuance, if a Email address ...... Officer at traveler will be required to enter passport is required, or DHS-Approved time of information from his or her passport; travel document country of issuance, as inspec- thus, a third party without access to the applicable tion. traveler’s passport will not be able to • Departure Portion: Passport expiration date, if a Family name ...... APIS access the Form I–94 from the Web site. passport is required, or DHS-Approved First (given) name ...... APIS The printout from the Web site will be travel document expiration date, as Birth date ...... APIS the functional equivalent of the applicable Country of citizenship ...... APIS departure portion of the paper form and • Alien registration number, where will contain the same information as the applicable Thus, for aliens arriving in the United departure portion of the paper form. States by air or sea, CBP obtains almost CBP will continue to stamp the • Address while in the United States all of the information contained on the traveler’s passport at the time of In addition to the manifest paper Form I–94 electronically from the inspection and any admission or parole information for each individual, the air carriers and the Department of State and and will annotate the stamp with the or sea carrier also must provide is able to collect any additional fields class of admission or parole and information about the flight or voyage. from the individual at the time of duration of admission or parole. CBP The flight or voyage information the air inspection. This means that CBP no will distribute a tear sheet to each alien or sea carrier must provide that is longer needs to collect Form I–94 who is issued an electronic Form I–94 relevant to the Form I–94 is the airline information from these travelers as a at the time of inspection with and flight number and the place of matter of course. Therefore, CBP is information about the Web site and departure. transitioning to an automated process procedures for obtaining a printout to Visa information is made available to whereby CBP will create an electronic the alien upon arrival in the United CBP by the Department of State via the Form I–94 based on the information in States. Consular Consolidated Database (CCD). its databases, which CBP will make Aliens who may be required to At the time of inspection and admission available to the alien through the Web present the Form I–94 to a third party or parole, the CBP Officer is able to site: www.cbp.gov/I94. At this time, the for some purpose, such as employment collect additional data, such as email automated process will apply only to or benefit eligibility, may present the address, phone number, and updated aliens arriving at air and sea ports of printout from the Web site. For address while in the United States. entry. This is because the electronic example, nonimmigrants who are Table 1 below lists the source of each record draws largely from APIS employment authorized incident to data element for the electronic Form I– information submitted by air and sea status (see, e.g., nonimmigrants listed at 94. carriers. CBP will continue to provide a 8 CFR 274a.12(b)) may print a copy of paper Form I–94 to those who request their electronic Form I–94 for evidence such form