If you hope to change your status in the United States and you did have a legal entry on your last arrival, you have a number of options available to you. But what happens when you lose evidence of your I–94 (that’s the entry card in your passport given to you upon your initial arrival at the border or airport)? Your last entry may have been 10 years ago –– or just last week –– but replacing your I–94 is not always that simple.
FIRST STEP TO REPLACE YOUR I-94
The most obvious step to take is to file for a replacement of your I–94 or the I–797 Notice of Action. Sometimes foreign nationals can do this on their own and sometimes they will be successful. The problems come when immigration’s response to your request is a denial. When they deny it –– and this happens far more than it should –– you will simply receive a form letter without any explanation as to reason of the denial. You certainly want to check to make sure you filed the correct form, sent it to the correct address and that there were no typos in your request. Or, maybe you wrote your name on the application slightly different than you originally had it on your I–94. Maybe they just lost your records.
NEXT STEPS TO TAKE FOR AN I-94 REPLACEMENT
If your request to replace your I-94 is denied, the next step may be to file a freedom of information act request. You may want to file one to both the USCIS as well as the Customs Border Protection agency. This process could take anywhere from 3 to 8 months to receive an answer. If you receive a negative response to the freedom of information act request sent to the customs border protection agency, you may still have a few possible steps. Your first option is to file a motion to reopen the original USCIS decision denying you (a copy of) the I-94 or I-797. You would need to provide some additional evidence to increase your chance of a successful decision. For instance, you would want to submit affidavits from anyone who has personal knowledge or was a witness to your entry as a tourist/student etc. You would also need to include your own affidavit. You could try to get information from the airline or bus company you used for transportation. Note that the government fees for a motion to reopen is over $600.
FINAL OPTION: LITIGATION IN COURT
Your final option may be to file an adjustment of status application if you have a U.S. citizen spouse or child 21 or over. You would then receive what is called a request for evidence because you won’t have the I-94 to submit. At that point you would need to furnish the affidavits and other evidence discussed above in your first option. If your adjustment application was denied USCIS would have two options. First, they could refer you to deportation proceedings in immigration court. If this is the case, then you would have the opportunity to present evidence in front of a judge. If the judge believes your story about losing your I–94 and the fact that you came as a tourist/student etc, then you would get your green card. Second, USCIS’s is to simply sit on your case. If they choose to do this, then you could go to federal court to force them to act on your case. In court you would have a judge hear the evidence and if s/he believed that you in fact came legally, you would get your green card.
While there would be additional costs to litigate this in immigration or federal court it may be your only option to ever get your status legalized. In that respect, it is a small investment to change your life.