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Five-year waivers temporarily suspended

I was glad to report two months ago that the U.S. Immigration and Naturalization Service (INS) had finally begun to issue five-year waivers, allowing waiver holders to save the time and expense of ann...

Daniel Joyce
Daniel Joyce

I was glad to report two months ago that the U.S. Immigration and Naturalization Service (INS) had finally begun to issue five-year waivers, allowing waiver holders to save the time and expense of annual renewals. Unfortunately, only a month after the new program started, it has been temporarily suspended.

Apparently, the Buffalo District Office began issuing the five-year waivers before new regulations for the program were approved. Under the existing law, waivers are only authorized for up to one year.

It looks like another classic government case of “no good deed goes unpunished”.

The Buffalo District Office of the INS has been well aware of the cost and inconvenience associated with annual waivers, particularly for people who routinely obtain them year after year. And it was three years ago that the INS announced it was scrapping the current border crossing card and waiver system, to replace it with a new card with a five-year life. Apparently, the office in Buffalo, N.Y. decided to compromise and began issuing the current type of waiver that lasts five years.

However, since other offices weren’t doing the same thing, INS headquarters apparently determined that a five-year waiver was not legally authorized, and the one-year version has to be issued until the new rules are implemented.

The subject of waivers brings up certain issues involving I-94 cards. I often receive calls from drivers who refer to waivers and I-94 cards as synonymous terms. However, they are complete different documents, with completely different functions.

The confusion stems from the fact that Canadian and American citizens are spoiled by the luxury of traveling back and forth between the countries without the need for passports or visas. There are different procedures for most citizens of other countries. Those people usually need visas issued by a U.S. Consulate in their home country. The visa authorizes, but does not guarantee, admission to the U.S. in a certain category. (There is also a visa waiver program for short-term visits by citizens of specified countries, which eliminates the need for a consular visa.)

The I-94 card is a complete different document. It primarily functions as a record of entries and exits.

The idea behind the I-94 card is to give foreign visitors a document that has to be surrendered when they leave. Theoretically, this allows the INS to monitor and identify people who have overstayed their welcome.

But the life of the I-94 card is usually not the same as the underlying visa. For example, the foreign consulate in the home country can grant a visitor visa that is valid for multiple entries for several years, sometimes as many as 10 years. The I-94 card is usually limited to a shorter duration, such as six months.

Every foreign person who enters the U.S. must have an I-94 card as evidence of lawful admission, unless they are a Canadian citizen or otherwise exempt from needing a visa.

So what does all this have to do with Canadian truck drivers? Since Canadian citizens are “visa-exempt”, they do not need to have consular-issued visas, and do not receive I-94 cards. The exception to this rule is people who are not admissible to the U.S., such as individuals with serious (as defined by the INS) criminal records. These individuals must apply for waivers to be admitted to the U.S. Since the waiver is valid for a specified time – usually one year – the INS gives the waiver holder an I-94 card to show that he is admissible to the U.S., and that he is authorized to make multiple entries during that time period.

Often, the driver is given an I-94 card with a termination date that ends at the same time as the waiver. But the duration of the I-94 card is within the discretion of the INS officer at the port of entry, and sometimes the duration is for shorter periods, such as 90 days at a time.

All of that makes sense, but there is one other factor that has tended to cause some confusion. The INS will sometimes issue an I-94 card to a Canadian citizen as a convenience. For example, consider the case of the Canadian businessperson who has to make repeated, lawful entries to the U.S., or the person who has a relative or friend in the U.S. that he frequently wants to visit. Such repeated entries could be questioned by the INS, which wants to ensure that the person isn’t working or living illegally in the U.S.

To save time and aggravation for both sides, the INS will often issue that person an I-94 to show that he has been fully questioned, and that there is not a need to run him through the same questioning every time he enters. This technique has been used to clear Canadian drivers for eligibility in the U.S. For example, it would be a nuisance for the INS to run a criminal background check every time a driver enters the U.S. So to save time, some ports of entry will perform a detailed background check one time, and then provide the driver an I-94 card as evidence that he has been cleared. (If he is not cleared, he is told he needs a waiver.) The card serves as proof that he has gone through a full admission process, eliminating the need to do a full review on subsequent entries, unless some new evidence would require it.

However, not all ports of entry do this. The practice occurs more often in Michigan and western border crossings, and less often in the New York and eastern crossings.

The problem is that some employers are asking newly hired drivers for copies of their I-94 cards, as evidence of their ability to drive in the U.S. Drivers who request an I-94 card at some of the eastern border crossings are told they don’t need one and can’t have one.

Remember, waivers and I-94 cards are not the same thing, and a person who does not need a waiver does not need an I-94 card, either. If a person has an I-94 card without a waiver, it was probably for the convenience of the INS, and was only issued at the discretion of the particular port of entry. n

– Daniel Joyce can be reached at Hirsch and Joyce, Attorneys at Law, at 716-564-2727.

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