Last month we discussed two important aspects of the I-94 card issued at the U.S. border. We discussed what it is, and who gets one. We saw that some drivers get the card because they have waivers, and others get them as evidence that they don’t need a waiver. We saw that one of the primary functions of the card is to serve as proof of departure when the card is surrendered upon leaving the country. But how do you do that, and what happens if you don’t? In other words: What do I do with it when I leave the U.S.?

The answer seems to be an easy one. The card itself contains a prominent warning on the back in two places, one in bold black print and another in red print that says: “You must surrender this permit when you leave the U.S.” But it isn’t as simple as that. Some people aren’t supposed to surrender it, despite the warning.

The answer depends on whether the card was issued for a single entry or multiple entries. Most non-Canadian visitors to the United States receive an I-94 card intended for one entry. Those individuals are expected to surrender the card upon their departure, even if it is well before the expiration date. They can then obtain a new one upon subsequent re-entry. Those situations normally do not pose a problem. The problem is for people with “multiple entry” I-94 cards that are valid for six months or more. For example, some I-94 cards associated with temporary work visas are valid for up to three years at a time. In those cases, the person may spend most of his time in the U.S. and may not make frequent trips back and forth. An I-94 holder in that situation should review the circumstances at least 90 days before expiration and take appropriate action. If an extension is not available, they should begin making plans to leave the country. People who are allowed to extend their stay in the U.S. should take steps to do so and obtain a new I-94 card as part of that process. Those situations also don’t normally pose a problem. A replacement card can usually be obtained without leaving the U.S., or upon re-entry after the extension is approved.

Canadian drivers with I-94 cards present a different situation from most foreign visitors because they don’t receive a single entry card. They are also different from people with work visas, because they don’t reside in the U.S. or spend most of their time there. That means they can’t take steps to extend their card or receive a new one while they are in the U.S. They are required to hand in the card at the time of their last departure prior to expiration, and pick up a new one when they re-enter, assuming they still qualify (meaning there are no grounds of inadmissibility, or if there are, the person has an approved waiver to overcome them).

That sounds easy, but sometimes the person doesn’t know if it will be his last departure from the United States. Our advice is to be conservative and not take chances.

Unless you are quite certain you will be back again, we recommend that you present the card upon entry to the U.S. within 30 days of expiration and ask for it to be replaced.

You want to avoid the situation where weeks or months may go by, and the driver realizes that he is in Canada with an expired card because he never made a return trip.

Prior to the tightening of security over the past two years, that situation was not a problem for drivers. In fact, the INS contributed to the problem because it was very lax in requesting or accepting I-94 cards on departure.

Now, in the post-9/11 era, the attitude has definitely changed. Holding on to an expired I-94 card can lead to serious consequences. In today’s zero-tolerance, no-benefit-of-the-doubt mentality, the Department of Homeland Security (DHS) has no way of knowing that the person did actually depart from the U.S. prior to the I-94 expiration date.

Rather than make a favourable assumption, the DHS could make the unfavourable assumption that the person overstayed his term and remained in the United States illegally after the I-94 expiration date.

If someone overstays in the United States for 180 days, he or she can be barred from re-entering the United States for three years.

If the person overstays for more than one year, he or she can be barred from entering the United States for 10 years.

You don’t want to be in a position where you are found to have a long-expired I-94 card that raises the possibility that you remained illegally in the U.S. after its expiration.

If you inadvertently are in a situation where you are still holding an expired I-94 card in Canada, you should contact the closest port of entry and ask for instructions as to how to surrender it.

If it is less than six months from its expiration date, you probably won’t have much trouble other than some grumbling by the Immigration inspector.

However, if you have held onto the card for more than six months after it expired, you may be asked to provide proof that you departed the U.S. prior to the expiration date.

You may be lucky and have a passport stamp showing entry in a different country as proof of your departure.

But since there is no stamping of passports for Canadian citizens returning to Canada, there is likely to be no simple, unambiguous evidence to serve as proof.

You may be forced to reconstruct your activities and provide indirect proof such as bank transactions, credit card activity, health card records or affidavits from employers, friends or family members.

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