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Transformation rule comment 6 regarding i 102

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Transformation rule comment 6 regarding i 102

  1. 1. Transformation Rule Comment 6 Regarding I-102 (I-94 Initial orReplacements)With this rule published 8/29/2011, Section 264.6 is revised to read as follows:§ 264.6 Application for a nonimmigrant arrival-departure record.(a) Eligibility. USCIS may issue a new or replacement arrival-departure record to anonimmigrant who seeks: (1) To replace a lost or stolen record; (2) To replace a mutilated record; or (3) Was not issued an arrival-departure record pursuant to 8 CFR 235.1(h) (1)(i), (iii), (iv), (v), or (vi) when last admitted as a nonimmigrant, and has not since been issued such record but now requires one.(b) Application. A nonimmigrant may request issuance or replacement of anonimmigrant arrival-departure record by applying on the form designated byUSCIS with the fee prescribed in 8 CFR 103.7(b)(1) and in accordance with theform instructions.(c) Processing. A pending application filed under paragraph (a) of this section istemporary evidence of registration. If the application is approved, USCIS willissue an arrival-departure document. There is no appeal from the denial of thisapplication.Prior to this change, this section read:8 CFR § 264.6 Application for an initial or replacement Form I–94,Nonimmigrant Arrival-Departure Document, or Form I–95, CrewmensLanding Permit.(a) General. An application for a new or replacement Form I–94 or replacementForm I–95 must be made on Form I–102. The application must be filed with thefee required in §103.7 of this chapter and the initial evidence required on theapplication form. Page 1 of 4
  2. 2. (b) Filing. An application may be approved if filed by an alien in the United Stateswho: (1) Applies to replace a lost or stolen Form I–94 or Form I–95 that had been issued to him or her; (2) Applies to replace a mutilated Form I–94 or Form I–95 issued to him or her; or (3) Was not issued a Form I–94 pursuant to §235.1(f)(1)(i), (iii), (iv), (v), or (vi) of this chapter, when last admitted as a nonimmigrant, has not since been issued a Form I–94, and now requires a Form I–94.(c) Processing. A pending application filed under paragraph (a) of this section shallbe considered temporary evidence of registration. If the application is approved,the document shall be issued. There is no appeal from the denial of an applicationfiled on Form I–102.[59 FR 1466, Jan. 11, 1994] [The prior regulation pre-dated DHS. Thisrevision does not appear to have taken that fact into account. This revision iscosmetic and missed an opportunity to make a long overdue substantivecorrection to address an important jurisdictional issue.]The actual I-102 Form Instructions has included an advisory for at least fiveyears, probably longer. It reads:ADVISORY: Do not use this form to request an action on Form I-94 issued by theU.S. Customs and Border Protection (CBP). If you are seeking a new Form I-94based on a Form I-94 issued at a port of entry or otherwise by CBP, you shouldcontact the nearest CBP office or port of entry and inquire about their procedures,or visit the CBPs Web site at www.cbp.govUSCIS has stood by the sentiment expressed in that ADVISORY over and overagain. In addition, in Chapter 30.4 of the Adjudicator’s Field Manual (AFM)(Revised 03-13-2005), ¶ (a) includes the following proviso: “Form I-102 is NOT to be used in the case of an alien who was not properly inspected and admitted at a port-of-entry, through oversight or error on the part of the government and whose improper inspection is now being corrected in accordance with Chapter 15.12 of the Inspector’s Field Manual.” (IFM) Page 2 of 4
  3. 3. IFM1 15.12 Correction of Erroneous Admissions.(a) General. Authority exists in 8 CFR 101.2 to create a record of a previousadmission where none exists or to correct an erroneous record, provided the errorwas not a result of deliberate deception or fraud on the part of the alien.Jurisdiction for correcting such errors lies with the district office where the aliencurrently resides. The procedure described below is not to be used to "correct" anentry without inspection or attempted entry without inspection of an alien at otherthan a port-of-entry.(b) No Record of Admission Was Created. From time to time, you mayencounter an alien who has not been properly inspected and admitted at a port-of-entry, through an oversight or error on the part of the government. In such asituation, conduct an inspection and determine the date, place and manner ofarrival. Prepare a memorandum of facts for the district director having jurisdictionover the port where the actual entry occurred. If there is no objection from thatdistrict director, based on a finding that the incident occurred through inadvertenceand was not a deliberate act on the part of the alien to avoid inspection, completethe admission, including preparation of an I-94, as if it occurred in the normalmanner. If you determine that a record of admission should not be created, instituteproceedings to remove the alien. In the interest of efficiency, consultation with theoriginating district may be handled by facsimile or telephonically.If the alien involved in such an incident is admitted as a new immigrant, follow thesame procedures, processing the immigrant visa in the normal manner andattaching a copy of the memorandum of facts to the visa packet prior to forwardingthe packet for card issuance.If the alien involved is a lawful permanent resident, this procedure is required onlyif he or she is regarded as seeking admission within the meaning of section101(a)(13)(C) of the Act.(c) Incorrect Record of Admission Was Created. If incorrect admission data wasrecorded at the time of inspection, such as a misspelled or incomplete name,maiden name instead of a married name, incorrect date of birth or other such error,prepare a corrected I-94 and forward it for data entry. Before completing suchaction, take necessary steps to ensure neither the original error nor the proposedcorrection are deliberate actions designed for fraudulent purposes. For example, acorrection on a year of birth may be part of an attempt to qualify for social securitybenefits.1 Found at: http://www.gani.com/public/immigration/forms/fieldman.pdf Page 3 of 4
  4. 4. The following is from the Q&A Posted following the Religious WorkerNational Stakeholder Engagement July 14, 2011 & July 28, 20112Question 1: Despite the new regulations which codified that a foreign nationalmay only be admitted in R-1 classification for the validity of the R-1 petition, up toa maximum of 30 months from the date of admission, U.S. Customs and BorderProtection (CBP) sometimes admits R-1 nonimmigrants for 36 months, inaccordance with the policy under the prior regulations. In such instances, whatshould the R-1 principal and their R-2 dependents do to correct the erroneouslyissued Form I-94?Response: The validity date errors on the I-94 should be corrected by bringing it tothe attention of the port of entry that issued the I-94 or with the DeferredInspection Office of CBP. You may wish to visit CBP’s website at www.cbp.gov.8 CFR 214.2(r)(4) only allows the initial period of admission in R-1 status up to 30months from the date of the initial admission and that R-2 status is granted for thesame period of time and subject to the same limits as the principal. 8 CFR214.2(r)(5) further indicates that an R-1 alien who is maintaining status or isseeking readmission and who satisfies the eligibility requirements of this sectionmay be granted an extension of R-1 stay or readmission in R-1 status for thevalidity period of the petition, up to 30 months, provided the total period of timespent in R-1 status does not exceed a maximum of five years. If the I-94 for R-1status was issued beyond the initial maximum period of 30 months as stipulated inthe regulations, it may have been issued in error by the CBP and should not berelied upon. Although neither the petitioner nor the beneficiary will be penalizedfor the error caused by the CBP officers, such error may affect the beneficiary’sfuture immigration benefits if the beneficiary’s stay exceeds the statutorymaximum. Please note that Form I-102, Application for Replacement/InitialNonimmigrant Arrival-Departure Document, should not be used to request USCISto correct an error on Form I-94 issued by CBP, as USCIS cannot correct sucherrors.Perhaps it’s not too late to address this. Thank you for the opportunity to contribute.Joseph P. Whalen August 31, 20112 Found at:http://www.uscis.gov/USCIS/Outreach/Upcoming%20National%20Engagements/National%20Engagement%20Pages/2011%20Events/July%202011/RW%20National%20Stakeholder%20Engagement%20QA%20OCC%20cleared%20clean%20_8-12-11_%20_4_.pdf Page 4 of 4

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