[Federal Register Volume 81, Number 243 (Monday, December 19, 2016)]
[Rules and Regulations]
[Pages 91646-91670]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-30459]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR PARTS 1, 210, 212, 214, 215, 231, 235, 245, 245a, 247, 253,
264, 274a, and 286
[Docket No. USCBP-2013-0011; CBP Dec. No. 16-27]
RIN 1651-AA96
Definition of Form I-94 To Include Electronic Format
AGENCY: U.S. Customs and Border Protection, DHS.
ACTION: Final rule.
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SUMMARY: This final rule adopts, without change, interim amendments to
the Department of Homeland Security (DHS) regulations which were
published in the Federal Register on March 27, 2013, as CBP Dec. No.
13-06. These amendments enabled DHS to transition the issuance of the
Form I-94 (Arrival/Departure Record) to an automated process. In the
automated process, DHS creates a Form I-94 in an electronic format
based on passenger, passport and visa information DHS obtains
electronically from air and sea carriers and the Department of State
(DOS) as well as through the inspection process. This document
addresses the comments received in response to the interim rule and
discusses some operational modifications to the Form I-94 process that
were implemented after publication of the interim rule.
DATES: This final rule is effective January 18, 2017.
FOR FURTHER INFORMATION CONTACT: Suzanne Shepherd, U.S. Customs and
Border Protection Office of Field Operations by telephone (202) 344-
2073 or by email, [email protected].
SUPPLEMENTARY INFORMATION:
Abbreviations and Terms Used in This Document
ACI-A Airports Council International-North America
ACIP American Council on International Personnel
ADIS Arrival and Departure Information System
AILA American Immigration Lawyers Association
APA Administrative Procedure Act
APIS Advance Passenger Information Systems
CBP U.S. Customs and Border Protection
CBSA Canadian Border Services Agency
CCD Consular Consolidated Database
CFR Code of Federal Regulations
DHS Department of Homeland Security
DIS Deferred Inspection Site
DMV Departments of Motor Vehicles
DOS Department of State
DOT Department of Transportation
ESTA Electronic System of Travel Authorization
FAQ Frequently Asked Question
FNU First Name Unknown
FOIA Freedom of Information Act
ICAO International Civil Aviation Organization
ICE U.S. Immigration and Customs Enforcement
IFR Interim Final Rule
INA Immigration and Nationality Act
INM Instituto Nacional de Migraci[oacute]n
INS Immigration and Naturalization Service
LNU Last Name Unknown
MRZ Machine Readable Zone
NAFSA NAFSA: Association of International Educators
OIS Office of Immigration Statistics
OMB Office of Management and Budget
OTTI Office of Travel and Tourism Industries
PIA Privacy Impact Assessment
PII Personally Identifiable Information
POE Port of Entry
SAVE USCIS's Systematic Alien Verification for Entitlements program
SEVIS Student and Exchange Visitor Information System
SEVP Student and Exchange Visitor Information Program
SHRM Society for Human Resource Management
SSA Social Security Administration
USCIS U.S. Citizenship and Immigration Services
USDA U.S. Department of Agriculture
VWP Visa Waiver Program
Executive Summary
The Form I-94 (Arrival/Departure Record) is issued by DHS to
certain nonimmigrant foreign nationals upon arrival in the United
States or when they change status in the United States.
[[Page 91647]]
The Form I-94 is used to document arrival and departure and provides
evidence of the terms of admission or parole. The Form I-94 is also
used by individuals granted asylum in the United States as a proof of
their grant of asylum and by refugees as proof of their refugee status.
CBP, a component of DHS, generally issues the Form I-94 to
nonimmigrants at the time they lawfully enter the United States.
Nonimmigrant travelers use the Form I-94 for various purposes such as
completing the Form I-9 to verify employment eligibility, applying for
immigration benefits, or presenting to a university to verify
eligibility for enrollment.
On March 27, 2013, CBP published an interim final rule (IFR) in the
Federal Register (78 FR 18457) that added to the regulations a
definition of ``Form I-94'' to allow the Form I-94 to be in either
paper or electronic format. Prior to the effective date of the IFR, the
Form I-94 was a paper form only. The IFR made necessary changes to the
regulations to enable CBP to transition from only paper to allow for an
electronic form. In the case of air and sea ports of entry, the
regulation allowed CBP to transition to an automated process whereby
CBP creates an electronic Form I-94 based on information collected via
the Advance Passenger Information System (APIS) along with visa
information transmitted to CBP by the Department of State. The
automated process applies only to nonimmigrants arriving at air and sea
ports of entry because APIS data is currently collected only for air
and sea. The automation of the Form I-94 process for nonimmigrants
arriving by air or sea eliminates duplicative information collections
and saves time and money for the traveling public, carriers, and CBP.
CBP makes the electronic Form I-94 available through a Web site. To
access the Form I-94 through the Web site the traveler inputs
information from his/her passport. If needed, nonimmigrants may print
out a copy of the Form I-94 from the Web site and present it to third
parties in lieu of the paper form. CBP continues to provide a paper
Form I-94 to certain classes of aliens, such as asylees, certain
parolees, and others upon request or whenever CBP determines the
issuance of a paper form is appropriate.\1\
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\1\ As of September 2015, CBP has automated the Form I-94
process for refugees. Refugees can now access their Form I-94 from
the I-94 Web site. CBP no longer provides a paper Form I-94 to
refugees unless one is requested or CBP determines that it is
appropriate to issue one.
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This regulation also is consistent with CBP's enhancements to the
I-94 Web site to enable travelers arriving at a land port of entry to
submit the Form I-94 information to CBP and pay the required fee prior
to arrival. Unlike the automated process for air and sea where CBP
creates an electronic Form I-94 based on information collected via APIS
and other sources, this I-94 land border process enables travelers to
provide the Form I-94 information to CBP electronically prior to
arrival to facilitate the land border issuance process. The enhanced I-
94 Web site launched on September 29, 2016.
DHS received eighteen submissions in response to the IFR. Most of
these submissions contained comments providing support, voicing
concerns, highlighting issues, or offering suggestions for
modifications to the automation process. After review of the comments,
CBP has decided to finalize the interim final rule without change.
However, CBP has made some operational changes, primarily to the I-94
Web site, in response to the comments. These changes, which are
described in the comment responses, are intended to help travelers
retrieve their Form I-94 information and travel history more easily.
CBP has completed an updated economic assessment analyzing the
effects of the automation of the Form I-94. This rule affects CBP, air
and sea carriers that transport foreign nationals to the United States,
and the foreign nationals themselves. CBP will incur costs associated
with linking its data systems and building and maintaining the I-94 Web
site. CBP benefits through lower printing, storage, and contract costs.
CBP estimated a net benefit of $15.5 million for CBP in 2013. Carriers
benefit as a result of lower printing and storage costs. CBP estimated
a net benefit of $1.3 million for carriers in 2013. Foreign nationals
traveling to the United States incur opportunity costs associated with
logging onto the Web site to access their electronic Form I-94,
printing their Form I-94, and, for some travelers, the cost to drive to
a location with internet access so they can access and print their
electronic Form I-94. Foreign nationals benefit from a reduced
opportunity cost associated with filling out a paper Form I-94 and
reduced opportunity and fee costs associated with filing a Form I-102
to replace a lost Form I-94. CBP estimates a net benefit of between
$4141.1 million and $6565.9 million in 2013 for foreign travelers. In
total, CBP estimates that net benefits to all parties ranged from
$5757.9 million to $8282.7 million in 2013. Net benefits to U.S.
entities (carriers and CBP) totaled $16.8 million in 2013. Net benefits
are summarized in table ES-1 below.
Exhibit ES-1--Net Benefits
[Undiscounted 2012$] *
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2012 2013 2014 2015 2016 2017
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CBP..................................................... -1,321,000 15,461,360 15,461,360 15,461,360 16,167,798 20,447,110
Carriers................................................ 0 1,344,450 1,344,450 1,344,450 1,344,450 1,344,450
Travelers--Low.......................................... 0 41,109,614 76,986,391 80,597,880 85,173,424 93,439,507
Travelers--Primary...................................... 0 51,503,032 96,140,493 100,696,430 106,131,707 115,548,989
Travelers--High......................................... 0 65,882,967 122,641,373 128,504,014 135,128,784 146,138,820
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Grand Total--Low.................................... -1,321,000 57,915,424 93,792,201 97,403,690 102,685,671 115,231,067
Grand Total--Primary................................ -1,321,000 68,308,842 112,946,303 117,502,240 123,643,955 137,340,549
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Grand Total--High............................... -1,321,000 82,688,777 139,447,183 145,309,824 152,641,032 167,930,380
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* Estimates may not total due to rounding.
[[Page 91648]]
Background
The Form I-94
Prior to the implementation of the IFR, the Form I-94 was generally
issued to foreign nationals at ports of entry (POEs) at the time they
lawfully enter the United States. See 8 CFR 235.1(h). The Form I-94 is
also issued when a foreign national changes immigration status within
the United States. The Form I-94 is used to document status in the
United States, the authorized length of stay, and departure. The Form
I-94 collects biographical information, visa and passport information,
and the address and phone number where the traveler can be reached
while in the United States.
The Form I-94 has been used for approximately 50 years by DHS, its
predecessor agencies, and external stakeholders for a variety of
purposes. CBP and U.S. Immigration and Customs Enforcement (ICE),
components of DHS, use the form to document arrival and departure, as
well as class of admission or duration of parole. U.S. Citizenship and
Immigration Services (USCIS), also a component of DHS, issues Forms I-
94 to foreign nationals extending their authorized length of stay or
changing their immigration status while in the United States and to
individuals granted asylum or refugee status in the United States as
proof of their grant of asylum or refugee status. USCIS also uses Form
I-94 information to verify lawful admission or parole when adjudicating
immigration benefit requests, confirming employment authorization for
employers participating in USCIS's E-Verify program, or verifying
immigration status for benefit granting state and federal government
agencies participating in USCIS's Systematic Alien Verification for
Entitlements (SAVE) program. The Form I-94 is also used by the Social
Security Administration (SSA), state agencies, such as Departments of
Motor Vehicles (DMV), and public assistance agencies and organizations,
to verify eligibility for benefits. The form is used by certain foreign
nationals for evidence of lawful admission or parole, as well as, where
applicable, employment eligibility and eligibility for public benefits.
For more complete information on the Form I-94, its uses, and the
automation, please refer to the background section of the IFR.
Automation of the Form I-94 at Airports and Seaports
Nearly all of the traveler information collected on the Form I-94
is also collected by CBP in advance of the traveler's arrival via the
Advance Passenger Information System (APIS). Using information
collected via APIS along with visa information transmitted to CBP by
DOS, CBP is now able to generate Forms I-94 electronically, which
reduces paperwork burdens for travelers and reduces costs for air and
sea carriers and CBP.
On March 27, 2013, CBP published an IFR in the Federal Register (78
FR 18457) amending the DHS regulations to include new definitions at 8
CFR 1.4 for the term ``Form I-94'' and other terms when used in
relation to the Form I-94. The IFR became effective on April 26, 2013,
and on that date, CBP began the transition to an automated Form I-94
process whereby CBP creates an electronic Form I-94 for travelers
arriving by air or sea based on the information in its databases. CBP
continues to provide a paper Form I-94 to those who request such form,
as well as to certain classes of aliens, such as asylees, certain
parolees, and whenever CBP determines the issuance of a paper form is
appropriate. For these individuals arriving by air and sea carriers, an
electronic Form I-94 is also created.
Travelers are able to access and print their electronic Form I-94
via the Web site CBP has established for this purpose: www.cbp.gov/I94.\2\ Travelers to whom an electronic Form I-94 has been issued may
log on to the Web site using identifying information and print a copy
of the electronic Form I-94. In order to access the Form I-94 from the
Web site, the traveler is required to enter information from his or her
passport; thus, a third party without access to the traveler's passport
is not able to access the Form I-94 from the Web site. The printout
from the Web site is the equivalent of the departure portion of the
paper form and contains the same information as the departure portion
of the paper form. CBP continues to stamp the traveler's passport at
the time of inspection and will annotate the stamp with the class of
admission or parole and duration of admission or parole.
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\2\ The direct link is: https://i94.cbp.dhs.gov/I94/request.html.
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Enhanced Form I-94 Land Border Process
In addition to the automation of the Form I-94 at air and sea ports
of entry, on September 29, 2016, CBP modified the process by which a
traveler arriving at the land border can provide Form I-94 information
and pay the related fee by adding an electronic option. Specifically,
CBP enhanced the I-94 Web site to enable travelers arriving at a land
port of entry to submit the Form I-94 information to CBP and pay the
required fee prior to arrival. CBP expects that these enhancements will
result in time savings to travelers who choose this option.
Before September 29, 2016, when a traveler requiring a Form I-94
arrived at the land border, he/she provided the I-94 information to a
CBP officer who input the data into a CBP computer system. After
determining the traveler's admissibility, the CBP officer printed a
Form I-94A \3\ for the traveler and referred him/her to the cashier to
pay the $6 fee.\4\
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\3\ The Form I-94A is the version of the Form I-94 that CBP
issues at land ports of entry.
\4\ The amount of fee for the issuance of the Form I-94 at a
land border port of entry is provided for in 8 CFR
103.7(b)(1)(ii)(D).
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Under the new process, a traveler who requires an I-94 and intends
to enter the United States at a land port of entry will have the option
to either follow the above process or to apply for an I-94 and pay the
$6 fee up to seven days in advance of arrival. Using the I-94 Web site,
the traveler enters all of the necessary data for I-94 processing that
would be collected by CBP at the port of entry. Upon paying the fee,
the traveler will receive a ``provisional I-94''. This ``provisional I-
94'' will become effective after the traveler presents it to a CBP
officer at a land port of entry and completes the issuance process with
a CBP officer. If the ``provisional I-94'' is not processed within 7
days of submitting the application, it will expire and the fee will be
forfeited.
The I-94 Web site will instruct the traveler to appear at the land
port of entry for an interview and biometric collection. When the
traveler arrives at the port of entry, he/she completes the issuance
process with a CBP officer. The CBP officer will locate the traveler's
information by swiping the traveler's passport or other travel document
in CBP's database. This will verify that the fee was paid and pre-
populate the data fields from the document swipe and the information
provided by the traveler in the Web site. If the CBP officer determines
that the traveler is admissible, the CBP officer will print out a Form
I-94A to give to the traveler.
Discussion of Comments
Overview
Although CBP promulgated the IFR without first soliciting public
comment, CBP provided a thirty-day post-promulgation comment period
soliciting public comments that CBP would consider before adopting the
interim regulations as final. CBP received
[[Page 91649]]
eighteen submissions in response to the IFR. Commenters included
individuals, the American Immigration Lawyers Association (AILA), the
American Council on International Personnel (ACIP), the Society for
Human Resource Management (SHRM), Feld Entertainment, Inc., the Intel
Corporation, NAFSA: Association of International Educators (NAFSA), and
the Airports Council International-North America (ACI-NA). Many
commenters raised multiple issues, and several issues were raised by
numerous commenters. Of the eighteen submissions, most included
comments seeking clarification of specific issues, highlighting
concerns or issues with the Form I-94 automation, or offering solutions
to issues or alternatives. Several of the operational issues raised by
commenters have already been addressed by CBP, which our responses
reflect. CBP has grouped the issues by topic and provides responses
below.
Benefits of Automation
Comment: Many commenters were supportive of the change to an
electronic Form I-94, saying that it will provide increased efficiency
for passengers, airlines, and CBP. Commenters said that no longer
requiring passengers to fill out the paper form on the plane while en
route to the United States would not only save passengers time, but
would also save air carriers time and money and would free up airline
staff to perform other duties. Commenters also anticipated reduced wait
times at the POEs, and increased officer efficiency.
Response: CBP appreciates this feedback and agrees that the
automation of the Form I-94 benefits the traveling public, air and sea
carriers, and CBP.
Comment: One commenter requested that the Form I-94 be automated
for the land ports as well as air and sea, as this will help reduce
wait times and improve commerce at the land border.
Response: CBP agrees that automating the Form I-94 at land POEs
would provide benefits to travelers and is exploring expanding
automation to include land border POEs. However, the electronic Form I-
94 relies in large part on information collected via APIS, and APIS
data is currently collected only for air and sea. Therefore, CBP cannot
fully automate the Form I-94 process at land border POE's at this time.
CBP's enhanced Form I-94 land border process, however, is expected to
increase the efficiency of the entry process and reduce administrative
duties for CBP officers, ultimately resulting in shorter wait times for
travelers requiring a Form I-94.
Regulatory Amendments
Comment: One commenter requested that the Form I-94 printout from
the I-94 Web site be added to the list of evidence of registration for
purposes of Immigration and Nationality Act (INA) section 264(e).
Response: The list of acceptable registration documents for
purposes of INA 264(e) is found in 8 CFR 264.1(b). The Form I-94,
Arrival-Departure Record, is already included in the list of evidence
of registration in 8 CFR 264.1(b). The IFR added a new provision to the
regulations to define ``Form I-94'' and related terms. The new
definition makes clear that the Form I-94 now includes information
collected electronically, and also defines ``original Form I-94'' to
include the printout from the I-94 Web site. Due to the new definition
provided for the Form I-94, CBP believes it is clear that the printout
constitutes evidence of registration and no further change is needed.
Comment: One commenter requested that the definition of ``original
document'' in 8 CFR 274a.2(b)(1)(v) be amended to include a Form I-94
printout.
Response: CBP believes that the definition of ``original Form I-
94'' included in the IFR accomplishes the desired result, and,
therefore, it is not necessary to amend 8 CFR 274a.2(b)(1)(v). That
definition provides that the term `original Form I-94' includes, but is
not limited to, any printout or electronic transmission of information
from DHS systems containing the electronic record of admission or
arrival/departure. See 8 CFR 1.4(d). 8 CFR 274a.2 concerns the Form I-
9, which is a USCIS form. USCIS agrees that a printout of the Form I-94
from the Web site constitutes an ``original document'' under this
regulation.
Comment: One commenter, NAFSA, requested that paragraph (e) of
section 1.4 be amended to add ``or electronic transmission'' after the
word ``printout.'' The commenter states that the revision would clarify
that a traveler may present an electronic version of the Form I-94,
such as a PDF or image scan.
Response: CBP believes that such amendment is unnecessary and could
cause confusion as to what can be presented or submitted in various
situations. For example, at this time, a printout of the Form I-94 is
still necessary in a number of situations, including the completion of
the USCIS Form I-9. However, the current definition specifically states
that the terms in question ``are not limited to'' providing a printout,
and thus, could be applied more broadly as appropriate by stakeholders.
Although CBP is hopeful that the Form I-94 in electronic form will be
accepted in the future by all stakeholders to whom these regulations
apply and that a printout will not always be required, that is not the
case now.
Administrative Procedure Act
Comment: One commenter, Feld Entertainment, Inc., disagreed that
the rulemaking is procedural. The commenter states that because the
rule was promulgated without prior notice and comment, it violates the
Administrative Procedure Act (APA). The commenter was also concerned
that the comments received in response to the IFR would be disregarded.
Response: The IFR enabled CBP to transition to an automated process
whereby CBP creates a Form I-94 in an electronic format. CBP has not
changed the substantive regulations relating to the Form I-94, but only
the operational means by which CBP issues the form. Thus, the rule is a
procedural rule exempt from prior notice-and-comment requirements under
the APA. CBP already has adopted a number of the commenters'
operational suggestions, which are described in many of the responses
below. Many of the commenters' questions have been addressed on the
FAQs page of the I-94 Web site for easy reference.
Web Site and Printouts
Comment: One commenter noted that the Web site option is helpful
for those who lose or misplace their Forms I-94, or when the paper form
becomes so worn that it is no longer accepted by agencies.
Response: CBP appreciates this feedback, and agrees that the Web
site makes it easier for travelers to obtain copies of their Forms I-94
when necessary. Since the implementation of the Form I-94 automation,
CBP has expanded the Web site to provide additional benefits, including
allowing nonimmigrants to access their five-year travel history.
Comment: A few commenters requested that the Web site be updated to
reflect changes in status granted by USCIS. Commenters said that, if
this is done, nonimmigrants who have had a change of status will not
have to file a Form I-102 for a replacement Form I-94 if needed.
Response: CBP agrees that providing this information through the
Web site would be helpful and would reduce the number of Forms I-102
that would be filed. The Form I-102 is the USCIS form
[[Page 91650]]
nonimmigrants use to apply for a new or replacement Form I-94. Adding
information about changes of status granted by USCIS to the Web site is
not currently possible. However, CBP is looking into whether USCIS
information can be reliably added to the Web site in the future. Any
updates on this issue will be included in the FAQs page of the I-94 Web
site.
Comment: A few commenters, including AILA, disagreed with the
assumption in the economic analysis that B-1/B-2 visa holders would not
access the Web site. Commenters said that these visa holders,
especially those in the United States for at least six months, would
have reason to obtain their Form I-94 records or may wish to obtain a
record of their admission for future use.
Response: CBP agrees that some B-1/B-2 visa holders, including
those who are given a year to stay as a B-1/B-2 visa holder, may have a
need to access the I-94 Web site. Accordingly, CBP has revised the
assumption in the economic analysis. Based on Web site query history
since the interim rule went into effect, we now assume that one percent
of B-1/B-2 visa holders will access the I-94 Web site. In addition, CBP
agrees that some travelers may wish to obtain a record of their
admission for future use. CBP has made changes to the I-94 Web site to
allow travelers to access their most recent Form I-94 record as well as
a five-year travel history. This can now be accessed by travelers who
have already left the United States in addition to those present in the
United States.
Comment: Some commenters noted that CBP is assuming all travelers
will have access to a printer. The commenters stated that it is not as
easy as CBP assumes for a foreign national to access public libraries
soon after arrival in the United States. They would have to learn that
public libraries offer internet, that one can print from them, that
there is a library nearby, that public transportation is available, how
to navigate public transportation, and explain what library resources
are needed.
One commenter, the Intel Corporation, was concerned that employees
would not be able to access the Web site before they must start work in
the United States, which is problematic because the Form I-94 is
required to complete the Form I-9. The commenter stated that it has a
company policy to complete the Form I-9 during new employee
orientation, which requires the employee to have his or her Form I-94
in hand. The company does not allow new hires access to company
computers until after the new employee orientation, and due to data
privacy protection protocol, the company cannot allow employees to
access Personally Identifiable Information (PII) on a computer assigned
to someone else. The commenter suggests CBP provide a way for the
employer to access the new hire's Form I-94 number directly.
Several commenters suggested that CBP print a copy of the departure
portion for the traveler and include instructions on how to print more
copies, or alternatively, that CBP provide kiosks at the airports where
foreign nationals can inspect and print the Form I-94.
Response: CBP recognizes that access to the internet and printers
is a barrier to many travelers who need their electronic Form I-94,
including those who need to present their Form I-94 when completing the
Form I-9. For this reason employers, or third parties, may access Form
I-94 records when consent is obtained from the record holder. For more
information on third party consent visit: https://i94.cbp.dhs.gov/I94/request.html.
In the regulatory assessment for the interim final rule, CBP
discussed the difficulties some foreign nationals face when they need
to access the I-94 Web site to print their electronic Form I-94. The
analysis estimated that approximately 1,028,876 travelers would need to
drive 20 miles and that it would take 60 minutes of a traveler's time
to access and print their electronic Form I-94. CBP estimated that this
cost aliens about $21 million in 2013. We have updated these estimates
for this final rule in the economic assessment. For more information,
see the below section entitled Executive Order 12866 (Regulatory
Planning and Review) and Executive Order 13563 (Improving Regulation
and Regulatory Review). CBP now estimates that it cost $17 million in
2014 (the first full year the rule is in effect). CBP acknowledges that
this represents a significant negative impact to these travelers and
strives to minimize this burden to the extent possible. To that end,
CBP continues to provide paper Forms I-94 upon request when the
individual arrives in the United States at the port's secondary
inspection station and at Deferred Inspection Sites (DISs) once the
traveler is in the United States.
CBP recognizes the potential usefulness of placing kiosks at ports
where foreign nationals could inspect and print their Forms I-94 and
has evaluated the merits of placing such kiosks at the busiest 20
airports and the busiest 20 seaports. Based on this analysis, for
travelers' benefits to exceed the kiosks costs, greater than one
percent of the subset of travelers who would otherwise need to travel
to access and print their electronic Form I-94 would instead need to
use a kiosk. Based on the few travelers who currently request paper
Forms I-94, CBP does not believe there are enough foreign nationals who
would take advantage of the kiosks to offset CBP's costs of installing
them. In addition, due to budget constraints, CBP does not have the
funds to acquire these kiosks at this time. See the Regulatory
Alternatives section of the economic assessment below for more
information.
Comment: One commenter had concerns about what a traveler would do
if he or she loses his or her passport and cannot access the necessary
information to retrieve the Form I-94 from the Web site.
Response: CBP believes that making the Form I-94 available on the
Web site will not put travelers who lose their passports in a worse
position than they were in prior to the automation of the Form I-94.
Paper Forms I-94 were typically stored or stapled into a traveler's
passport; thus, prior to automation, loss of a passport would have
required the traveler to obtain a new Form I-94 as well. With
automation, if the traveler loses his or her passport, but has the
passport information documented elsewhere, he or she will be able to
obtain the Form I-94 from the Web site. CBP has made various updates to
the I-94 Web site to address some of the comments. One of these updates
is that a traveler no longer needs to enter the date and class of
admission, which will make accessing the Form I-94 record easier for
travelers.
Comment: Many commenters encouraged CBP to make archival records of
Form I-94 records available indefinitely, as this will reduce the
administrative burden placed on CBP to respond to Freedom of
Information Act (FOIA) requests.
Response: CBP has made changes to the I-94 Web site to allow
travelers to access their most recent Form I-94 record, even if the
traveler has already departed the United States. Although CBP is not
able to make the Form I-94 records available on the Web site
indefinitely, CBP has updated the Web site so that Form I-94 records
are available dating back five years. The Web site also now allows
travelers to request their five-year U.S. border crossing history.
Travelers frequently request their five-year travel history from DHS,
as this history is often required when they apply for certain benefits.
CBP agrees that providing this information through the Web site will
[[Page 91651]]
help reduce FOIA requests regarding travel history. More details about
the benefits CBP anticipates from this change can be found in the
economic assessment below, entitled ``Executive Order 12866 (Regulatory
Planning and Review) and Executive Order 13563 (Improving Regulation
and Regulatory Review).''
Comment: One commenter asked whether nonimmigrants who received
paper Forms I-94 would be able to get replacements from the Web site.
Response: The Web site now provides access to Forms I-94 issued up
to five years prior to the query date. Currently, nonimmigrants who
have received paper Forms I-94 since 2009 are able to access their Form
I-94 information via the Web site.
Comment: Several commenters were concerned that foreign nationals
may not be able to access their records on the Web site due to
typographical or biographical errors that occur during the creation of
the electronic Form I-94 record. In particular, a few commenters noted
that information is frequently entered incorrectly on visas, especially
incorrect name spellings. Information drawn from visas would then be
incorrect, and travelers would not be successful when querying their
Form I-94 record.
Response: Most of the biographical information CBP uses in creating
the electronic Form I-94 is drawn from the traveler's passport. The
only information drawn from the visa for the Form I-94 is the visa
classification and issuance date. The exact format of the name used in
the electronic Form I-94 is found in the Machine Readable Zone (MRZ) of
the passport, found at the bottom of the biographical page of the
passport. A traveler having trouble finding his or her Form I-94 record
should look at the way his or her name is formatted in the passport
MRZ. The MRZ shows the traveler's name immediately following the three
letter country code, as last/surname and given name separated by
chevrons (<<<<). A traveler should not include the country code when
querying his or her Form I-94 record. The MRZ does not use punctuation
such as hyphens or apostrophes. In some cases, a traveler's name might
be truncated in the MRZ; in such cases, the traveler should query the
truncated version of the name. CBP has included guidance on this issue
on the FAQs page of the I-94 Web site, along with an example passport
page for reference.
Comment: A few commenters requested that CBP ensure that the Web
site is accessible on a variety of platforms and browsers, including
mobile devices. Commenters also requested that both www.cbp.gov/I-94
and www.cbp.gov/I-94 [note the hyphen in I-94] direct users to the
proper Web site.
Response: Although CBP does not have the resources to conduct
testing on multiple platforms, CBP has not received any feedback
concerning a lack of functionality on any platform. Due to updates that
CBP has made to www.cbp.gov as a whole, the full address for the Form
I-94 retrieval Web site is now: https://i94.cbp.dhs.gov/I-94/request.html. Both web addresses www.cbp.gov/I-94 and www.cbp.gov/I-94
direct users to a Web site with information about the Form I-94, and
includes a link to the Form I-94 retrieval page.
Comment: Several commenters, including AILA, ACIP, SHRM, and Feld
Entertainment, suggested adding an endorsement or other information on
the printout to help educate those stakeholders who are not accustomed
to seeing Form I-94 printouts from the Web site, and might be reluctant
to accept the printout. Some commenters also suggested including a
phone number or email address on the printout.
Response: CBP agrees that additional language on the printout would
help educate stakeholders, and has added language to the printout
indicating that the Form I-94 has now been automated for most
nonimmigrants. While CBP has decided not to add a phone number or email
to the printout, there is a link on the I-94 retrieval Web site that
directs users to the CBP help desk.
Comment: A few commenters stated that it was unclear how CBP would
prevent fraudulent printouts.
Response: CBP does not believe that the printout creates a greater
risk of fraud than the paper Forms I-94, which did not contain any
security features. CBP continues to encourage stakeholders to verify a
traveler's information through SAVE or E-Verify, when registered or
enrolled, respectively, in these services, and only as authorized.
The SAVE program is a USCIS service that helps federal, state, and
local benefit-issuing agencies, institutions, and licensing agencies
determine the immigration status of benefit applicants so only those
entitled to benefits receive them. More information on SAVE can be
found at: http://www.uscis.gov/save.
E-Verify is a web-based system that allows businesses to confirm
the eligibility of their employees to work in the United States. More
information on E-Verify can be found at: http://www.uscis.gov/e-verify.
Comment: A few commenters had privacy concerns related to the Web
site. One commenter was concerned that CBP will automatically collect
information on those persons attempting to access the Form I-94
information from the Web site. Another commenter was concerned that the
personal information available on the Web site could be accessed by
unauthorized parties, which put refugees or those seeking asylum in the
United States at risk.
Response: DHS/CBP has issued a Privacy Impact Assessment (PIA),
which describes the I-94 Web site, and posted it online at: https://www.dhs.gov/sites/default/files/publications/privacy/PIAs/pia-cbp-16-I-94-automation-20130227.pdf. DHS/CBP has also updated and reissued the
System of Records Notice (SORN) for the Nonimmigrant and Immigrant
Information System (NIIS) at 80 FR 13398, a system for maintaining the
arrival and departure records of nonimmigrants, and for APIS at 80 FR
13407. CBP is in the process of updating the PIA, which will discuss
how the I-94 Web site will retain information about attempts to access
the I-94 Web site (i.e. the search history) for only three months and
as part of the Web site's audit log. The search history, as part of the
audit log, is part of the Web site's infrastructure. The audit log is
only maintained in the Web site's infrastructure, and the search
history is retained for only three months, to reduce the risk of
improper use or disclosure of the search history. The benefits of
keeping an audit log of searches conducted on the I-94 Web site include
preventing improper and unauthorized use of the Web site, and holding
accountable anyone who uses the I-94 Web site improperly or without
authorization.
CBP believes that the benefits of having an audit log outweigh the
small and limited risks of improper use and disclosure of search
histories. The log of search histories allows CBP to conduct audits and
uncover when an unauthorized party is attempting to obtain information
from the I-94 Web site. For example, if a single access point conducts
multiple searches for different individuals, CBP will investigate
whether someone or something is conducting searches without the
travelers' consent. CBP has included a new security consent page to the
Form I-94 retrieval Web site that users must read and accept before
querying an Form I-94 record. The security page requires users to
affirm that they are authorized to obtain that traveler's history, and
to understand
[[Page 91652]]
that unauthorized or improper use could result in criminal and civil
penalties. With respect to information pertaining to persons whose
asylee status is prohibited from public disclosure pursuant to 8 CFR
208.6, CBP is taking the added precaution of requiring asylees to
manually submit verifiable identity information before they may access
their Form I-94 information. Asylees will continue to receive a paper
Form I-94. Refugees and certain parolees may access their Form I-94 via
the Web site.
Automatic Revalidation
Comment: Numerous commenters were concerned about how the
automation of the Form I-94 would affect automatic revalidation.\5\
Commenters noted that nonimmigrants seeking to use the automatic
revalidation provisions will have to demonstrate to carriers that they
are legally allowed to board the plane or vessel with an expired visa
and a passport stamp that reflects a change or extension of status.
Thus, commenters encourage CBP to require air and sea carriers to
provide instructions to their personnel regarding the documentation for
such persons.
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\5\ Automatic revalidation allows certain persons to seek
readmission to the United States for the duration of an unexpired
period of a previous admission. Pursuant to 8 CFR 214.1 and 22 CFR
41.112, automatic revalidation allows readmittance of certain aliens
who have been out of the United States for thirty days or less in a
contiguous territory and who have an unexpired nonimmigrant visa.
---------------------------------------------------------------------------
Specifically, commenters suggested that CBP officers would need to
override a nonimmigrant's automated departure record when a
nonimmigrant seeks readmission under 22 CFR 41.112(d). Commenters also
recommended that CBP emphasize in training that CBP officers will be
expected to reactivate previously closed Form I-94 records for
automatic revalidation.
Commenters were concerned that admission errors are common in
automatic revalidation and that nonimmigrants without a paper Form I-94
may experience challenges during the inspection process. Commenters
additionally noted that for nonimmigrants to print Forms I-94 to retain
in the event they go to Canada or Mexico and wish to use the automatic
revalidation provisions upon return to the United States would be very
burdensome on those with limited internet and printing capabilities.
Response: The IFR expanded the definition of a Form I-94 to include
electronic means. It did not change the requirements for the issuance
and use of the Form I-94. Automatic revalidation requirements are
outlined in 8 CFR 214.1(b) and 22 CFR 41.112(d). Under the automatic
revalidation provisions, certain temporary visitors holding expired
nonimmigrant visas who seek to return to the United States may be
admitted at a U.S. port of entry by CBP if they meet certain
requirements including, but not limited to certain nonimmigrants with a
valid, unexpired admission stamp on the Form I-94 or an electronic Form
I-94. CBP maintains the electronic Form I-94 record in CBP systems and
will use the electronic format to revalidate a previous, unexpired
admission or extension of stay if all other revalidation requirements
are met.
CBP has provided guidance to CBP officers at POEs regarding
automatic revalidation. The primary processing system allows a CBP
officer to re-use an existing Form I-94 when automatic revalidation
requirements are met. CBP has also conducted outreach with the travel
industry about the new documentary requirements. CBP has updated the
Carrier Information Guide to assist carriers in recognizing acceptable
documents and to ensure that carriers are informed of the Form I-94
automation. The Carrier Information Guide now includes an example of
the electronic Form I-94 Web site printout and guidance to carriers on
automatic revalidation.
An air carrier or vessel may require evidence of an unexpired
admission by a traveler prior to embarkation. The Form I-94 Web site
printout is evidence of that admission and can be presented to a
carrier if requested. CBP has made changes to the I-94 Web site to
allow travelers to access their Form I-94 records after departure. This
allows travelers who have already departed the United States, but who
may need the printout for automatic revalidation purposes to obtain the
printout to present to a carrier.
CBP has included guidance on automatic revalidation in the FAQs on
the I-94 Web site.
Departure
Comment: Some commenters stated that it was unclear what procedures
were to be followed at the time of departure. Commenters were
particularly concerned about the procedures that should be followed in
the case of a nonimmigrant arriving by air or sea but departing by
land. The commenters were concerned that CBP's database would record
the arrival information, but would not record the departure, which
could create difficulties for nonimmigrants seeking to travel to the
United States in the future. Commenters wanted to know whether
nonimmigrants departing by land have any affirmative duties to ensure
that departures by land are recorded correctly.
Response: CBP has added information concerning departure by land to
the FAQs page of the I-94 Web site. CBP and the Canadian Border
Services Agency (CBSA) have partnered to create an entry/exit system
that exchanges entry information at land border ports of entry for
certain individuals. Information collected on entry to one country is
shared in order to electronically record as exit from the other. Thus,
entry into Canada from the United States now creates a departure record
for the United States.
CBP does not currently have a system for automatically recording
departures by land to Mexico. If a traveler departs the United States
by land to Mexico, the traveler may wish to retain evidence of
departure to Mexico. Evidence of departure can include, but is not
limited to, entry stamps in a passport, transportation tickets, pay
stubs and/or other receipts. A traveler can request an entry stamp from
the Instituto Nacional de Migraci[oacute]n (INM) when entering Mexico.
CBP is not, however, placing any affirmative duty on the travelers to
carry such evidence.
Travelers departing the United States by air or sea will have their
departures recorded automatically when the air or sea carrier sends CBP
departure manifests.
Comment: One commenter was concerned that airlines do not always
timely update their departure manifests when travelers cancel and
rebook flights. Where CBP relies on carrier data, CBP might document
inaccurate departure data, which could result in denial of benefits.
The traveler would have no means to seek redress.
Response: APIS reports whether a person is ``on board'' or ``not on
board'' in order to accurately reflect changes in reservations. CBP
relies on confirmed departure information, and has updated the I-94 Web
site to ensure that only confirmed departures are reflected. DHS is
able to independently verify departures through DHS law enforcement
databases, and overstay records are reviewed before any adverse action
is taken.\6\
---------------------------------------------------------------------------
\6\ According to confirmation studies conducted by CBP and
outside studies conducted by contractors and GAO, CBP estimates that
99% of APIS departure data is accurate. CBP also confirms departure
data independently by using information travelers send from outside
the U.S., visa information from the State Department, or subsequent
arrival data.
---------------------------------------------------------------------------
[[Page 91653]]
The DHS TRIP program is an established means for a traveler to
inquire to seek resolution to any difficulties experienced during
travel into or departure from the United States. A traveler can submit
evidence of a timely departure in DHS TRIP. If a traveler believes that
CBP maintains incorrect departure information, the traveler can apply
for redress at http://www.dhs.gov/dhs-trip.
Visa Classification
Comment: A number of commenters requested clarification on how visa
classification data will populate an automated Form I-94 when a
nonimmigrant has more than one visa.
Response: CBP receives visa information from DOS. There may be
instances where a traveler has multiple eligible visa classifications.
In these cases, the CBP officer determines at the time of entry which
visa classification the traveler qualifies for and admits the traveler
under that class of admission. The electronic Form I-94 record will
reflect the class of admission chosen by the CBP officer at the time of
entry. This process is substantially the same as the process followed
during issuance of a paper Form I-94.
Comment: Commenters asked how nonimmigrants seeking to enter the
United States from Visa Waiver Program (VWP) countries would be handled
in view of the Form I-94 automation.
Response: Travelers entering the United States under the VWP used
to receive a Form I-94W, which is different than the Form I-94. The
Form I-94W was automated by the Electronic System for Traveler
Authorization (ESTA) in August 2010. VWP visitors no longer receive a
Form I-94W when arriving in the United States by air or sea, but rather
must apply for and receive an ESTA prior to travel to the United
States. For further information about ESTA, see 8 CFR 217.5 and
www.cbp.gov/esta/. Upon arrival in the United States, VWP visitors
receive an annotated stamp in their passports. This process is not
affected by the automation of the Form I-94.
Errors and CBP Officer Training
Comment: A few commenters were concerned that frequently there are
errors in admission records due to CBP officer error or misapplication
of periods of stay for the various nonimmigrant visa categories.
Commenters believe that more training is necessary for CBP officers on
visa categories, automatic revalidation, and creation of the automated
Form I-94.
Response: CBP officers are trained in all aspects of the inspection
process. CBP conducts ongoing training in the form of field guidance,
musters, on-the-job training, and online training modules. CBP has
provided field guidance and musters to CBP officers at the Ports of
Entry (POEs) regarding the Form I-94 automation process. CBP has issued
additional guidance to CBP officers to help the officers properly
create the electronic Form I-94. CBP continues to instruct officers to
verify information and make any needed corrections prior to creating
the electronic Form I-94.
Comment: Some commenters were concerned that the regulations do not
require CBP to stamp the passport, and state that CBP does not
currently stamp passports consistently. Thus, there is no way for some
travelers to review their admission information at the time of entry.
Response: It is CBP's policy to stamp the passport of visitors to
the United States, or provide them a receipt, as in the case of Global
Entry members.\7\ CBP has provided extensive guidance and training to
CBP officers at POEs regarding the documentation of a lawful admission
into the United States with a CBP admission stamp. CBP will continue to
provide guidance and training to CBP officers at the POEs to ensure
that officers are stamping passports consistently. CBP notes, however,
that a traveler will be able to find his or her admission record on the
I-94 retrieval Web site regardless of whether the passport contains an
admission stamp.
---------------------------------------------------------------------------
\7\ Nonimmigrant Global Entry members receive a printed Form I-
94 from the Global Entry kiosk, and can also retrieve the Form I-94
from the I-94 Web site.
---------------------------------------------------------------------------
Comment: Some commenters noted that variations on naming
conventions and other data occur in travel documents and records. These
commenters stated that there are often variations due to inconsistent
rules for transliterating non-Latin alphabets, and inconsistent rules
for non-standard characters or naming conventions. The systems must be
configured so that travelers are not harmed by variations in names and
systems. Commenters prefer that CBP use information from the
biographical page of the passport rather than information from the
visa, as the visa name is often incorrect. The commenters indicated
that DOS naming conventions are often not compatible with the
conventions of other agencies. In particular, the First Name Unknown
(FNU) or Last Name Unknown (LNU) designations create problems for
nonimmigrants when the U.S. visa is used as the primary source for an
official name.
Response: CBP has met with USCIS, DOS, and representatives from
ICE's Student and Exchange Visitor Program (SEVP) to discuss naming
conventions and to attempt to resolve inconsistencies. Currently, CBP
creates the Form I-94 admission record using the name found in the MRZ
of the passport, not the visa. APIS and CBP use standard International
Civil Aviation Organization (ICAO) naming conventions. CBP will use FNU
or LNU only when a traveler does not have both a given and surname.
Comment: A few commenters suggested that CBP establish additional
resources to help address questions and correct errors. Specific
suggestions included creating an ombudsman for the electronic Form I-
94, creating a Web site with guidance, and establishing dedicated help
lines and email addresses for use by travelers, employers, and other
government agencies. Commenters were concerned that there was not a
mechanism established for correcting errors in the electronic records
and no access to the Web site at the time of entry into the United
States.
Response: Although CBP does not have the resources to create a
dedicated helpline or ombudsman, CBP has included additional guidance
on the I-94 Web site under the FAQs tab. Travelers can check the
passport admission stamp obtained at the time of entry into the United
States to verify the correct date and class of admission, and ask the
CBP officer to make corrections if needed.
CBP will correct any errors in Form I-94 records that originated
with CBP at CBP's Deferred Inspection Sites (DISs). DISs, located at
most major airports, will provide assistance to travelers requiring
Form I-94 corrections or modifications. In many cases, corrections can
be completed through a telephone call to a DIS. However, in some cases,
the traveler may be required to appear in person in order to verify
identity or to provide additional documentation to CBP. CBP has
provided guidance and training to the CBP officers at the DISs about
Form I-94 corrections. A list of all DISs can be found at http://www.cbp.gov/document/forms/deferred-inspection-sites.
Travelers may also visit the CBP INFO Center at https://help.cbp.gov for assistance. The INFO Center has staff dedicated to
responding to Form I-94 issues. CBP has included a link to the CBP INFO
Center on the Form I-94 retrieval Web site.
[[Page 91654]]
Coordination With Other Agencies
Comment: Some commenters complained of disparate guidance from
various government agencies concerning the automated Form I-94. For
example, some commenters stated that the SSA published guidance
indicating that either an unexpired admission stamp or a printout from
the Form I-94 Web site will be accepted as proof of nonimmigrant
status. USCIS, however, has published guidance on its Web site stating
that USCIS and state DMVs will require a printout of the Form I-94.
Further, one commenter noted that at least one DMV office still
required a stamp on the Form I-94 and had not heard of the change to
the automated Form I-94.
Response: CBP has conducted extensive outreach to other agencies
and to DMVs regarding the automation of the Form I-94. The requirements
of various federal and state agencies may differ for practical or legal
reasons, resulting in some agencies being able to accept the admission
stamp while others may still require a printout of the Form I-94. Per
commenters' suggestions, CBP has added the following language on the
Form I-94 printout to aid in educating stakeholders not familiar with
the electronic Form I-94:
Effective April 26, 2013, DHS began automating the admission
process. An alien lawfully admitted or paroled into the United
States is no longer required to be in possession of a preprinted
Form I-94. A record of admission printed from the CBP Web site
constitutes a lawful record of admission. See 8 CFR 1.4(d).
Comment: Some commenters had particular concerns about completing
USCIS's Form I-9, as that form requests the Form I-94 number.
Commenters suggested that either the period of admission or the
passport number and country of issuance serve as the required data
fields on the Form I-9. Otherwise, workers without internet access will
have trouble completing the Form I-9.
Response: USCIS, the owner of the Form I-9 (Employment Eligibility
Verification), is reviewing its forms and applicable regulations and
policies, but at this time, it is not able to change the required
information on Section 1 of the Form I-9. For completion of Section 2
of Form I-9, employees who are aliens authorized for employment with a
specific employer incident to their nonimmigrant status may choose to
present their foreign passport together with Form I-94 in paper format
(which includes a printout from the Web site); admission stamps are not
acceptable for Form I-9 purposes. Refugees and asylees may also choose
to present Forms I-94 for completion of Section 2 and Section 3 of the
Form I-9, although they also have the option to present other documents
instead. Refugees may choose to present a Form I-94 printout or a paper
Form I-94 with a refugee stamp as an acceptable receipt for Form I-9
purposes that does not need to be paired with any other document.
Asylees who wish to show a Form I-94 may present their paper Form I-94
as a List C document in combination with a valid List B document.
Comment: A few commenters, including AILA and the Intel
Corporation, were concerned that inconsistent rules regarding when a
Form I-94 printout is acceptable will materially affect foreign
nationals' access to employment and benefits, such as Social Security
cards, driver's licenses and extensions or changes of nonimmigrant
status. Commenters also said that inconsistent rules could adversely
affect U.S. businesses; for example, if DHS continues to require
printouts bearing an admission number, employers could be fined by DHS
for failure to record this number on the Form I-9. A delay or grace
period in any enforcement actions related to the I-9 regarding the
entry of admission numbers is encouraged.
Response: The requirements to record document numbers on Section 2
of the Form I-9 have not changed. DHS regulations require employers to
record the necessary information from documents the employee presents
to complete Form I-9 within three days from the date of hire. Section 1
of Form I-9 requires employees who attest to being aliens authorized to
work in the United States to record either their alien number (or USCIS
number) or Form I-94 admission number. Section 1 of Form I-9 must be
completed by the employee at the time of hire (i.e., first day of work
for pay). The Form I-94 number can be found on the Form I-94 printout;
there is no requirement that the number must come from the Form I-94
itself. The timing requirements for Form I-9 completion are regulatory.
DHS may provide more flexibility in the timing requirements in a future
rulemaking.
Employees are still required to present documents of their choice
from the Lists of Acceptable Documents specified in the Form I-9 to
show identity and employment authorization on Form I-9. To satisfy 8
CFR 274a.2, original documents must be presented to employers, which
employers must examine to make a determination regarding whether the
documents appear to be genuine and to reasonably relate to the person
presenting them. According to USCIS, which issues the Form I-9, if an
employee chooses to present a Form I-94 along with their foreign
passport to show identity and employment authorization in Section 2 of
the Form I-9, he or she will need to present to his or her employer a
Form I-94 in paper format, which includes a Form I-94 printed out from
the CBP Web site. If an employee provides the Form I-94 he or she
obtained from the CBP Web site with his or her foreign passport as a
List A document, the employer should accept these documents if they
appear to be genuine and reasonably relate to the person presenting
them. Form I-9 rules permit employees to present certain receipts in
lieu of the original document(s): 1. A receipt for a replacement of a
lost, stolen, or damaged document; 2. the arrival portion of the Form
I-94 or Form I-94A containing a Temporary I-551 stamp and photograph;
and 3. the departure portion of Form I-94 or I-94A with an unexpired
refugee admission stamp. 8 CFR 274a.2(b). USCIS has determined that a
Form I-94 printed out from the CBP Web site by a refugee is acceptable
for Form I-9 purposes without an unexpired refugee admission stamp as
long as the printout provides the class of admission as ``RE'' and
duration of admission as ``D/S [duration of status].''
In the benefits-granting context, DHS will continue its outreach to
other federal, State, and local agencies to indicate that when a Form
I-94 is required as proof of valid admission to the United States, a
Form I-94 in either paper or print-out format is acceptable.
Comment: Commenters encouraged CBP to continue education outreach
to agencies, employers, and other stakeholders that might remain
unaware of the change to electronic Forms I-94. Commenters specifically
urged education to improve access to and use of DHS verification tools,
such as SAVE and E-Verify.
Response: CBP has conducted extensive outreach to local, state, and
federal agencies, scholarly organizations, and other non-governmental
entities both before and after automation. CBP involved all DHS
components, DOS, SSA, and the Department of Commerce in the automation
process through working groups. CBP in conjunction with USCIS provided
guidance and support to all major DMVs that participate in the SAVE
program. CBP coordinated with NAFSA and other student organizations to
inform academic institutions. CBP has met with the U.S. Chamber of
Commerce, the travel and tourism
[[Page 91655]]
industry, refugee and asylum groups, local law enforcement
representatives, and other interested organizations during planning and
development of the electronic Form I-94.
Employers seeking employment eligibility verification can do so
through the E-Verify program offered by USCIS. Government agencies have
access to status verification or other inquiries through a variety of
sources, including law enforcement channels and the SAVE program
offered by USCIS.
SEVIS
Comment: One commenter, NAFSA, suggested that CBP should include
the SEVIS number in the electronic Form I-94 record for nonimmigrants
who are monitored through SEVIS. The commenter stated that this would
further DHS's fulfillment of its responsibility to notify educational
institutions and exchange program sponsors that the student has been
properly admitted into the United States. The commenter noted that CBP
officers often write the SEVIS number on the paper Form I-94 of F and M
students and J exchange visitors, and that this notation is used by
Designated School Officials and Responsible Officers to ensure that the
POE information is associated with the correct SEVIS record.
Another commenter asked how the admission record will be tied to
the proper SEVIS number, if a student has more than one SEVIS record.
The commenter stated that this is of particular concern because CBP is
no longer stamping the Form I-20 or DS-2019 upon entry in the United
States, and there is no way that the student can make sure the correct
SEVIS I-20 is getting mapped to the admission number.
Response: The Student and Exchange Visitor Information System
(SEVIS) is utilized to track and monitor schools, exchange visitor
programs, and F, M and J nonimmigrants while they visit the United
States and participate in the U.S. education system. The SEVIS number
is the number generated when a Form I-20 or Form DS-2019 is issued to
an individual to participate in a specific educational or cultural
exchange program at a specific institution. CBP currently verifies
SEVIS numbers prior to admission into the United States. CBP now
requires officers to document SEVIS numbers, if applicable, in the
electronic Form I-94 record, but these numbers are not accessible to
the public or academic institution. The SEVIS number is not currently
documented on the Form I-94 Web site or printout, as it is not a data
element required or collected on the paper version of the Form I-94.
CBP will explore the feasibility of including the SEVIS number on the
Web site and printout. CBP has provided guidance to the field to
include the SEVIS number on the foreign travel document with the CBP
admission stamp when practical.
CBP has updated its systems to help ensure that the correct SEVIS
record is mapped to the proper arrival/departure record. The SEVIS
information is stored in CBP systems, and the Arrival and Departure
Information System (ADIS) feeds information to SEVP for each student.
CBP is continuing to work to enhance its systems to do a real-time
query of the SEVIS number to prevent admission on an invalid SEVIS
number.
Comment: One commenter requested that CBP establish a mechanism for
Designated School Officials to request a review when there is a problem
with a SEVIS record.
Response: If there is a problem with the SEVIS record, the
Designated School Official should contact SEVP, which oversees SEVIS.
SEVP would then work with CBP if SEVP determines that the problem
relates to the electronic Form I-94 or is otherwise CBP-related. More
information about SEVIS can be found on the SEVIS Web site:
www.ice.gov/sevis/.
Additional Comments
Comment: A few commenters requested that CBP include additional
information on the tear sheet that is handed out to travelers at the
POEs to include the purposes of the Form I-94 and a help line phone
number or email address. Commenters stated that not all foreign
nationals understand the importance of the Form I-94 or how soon they
might need to print one.
Response: CBP designed the tear sheet to fit into the traveler's
passport and inform travelers, in 12 languages, how to access their
Form I-94 records. Due to the size of the tear sheet and the
desirability of including any information in multiple languages, CBP is
not able to add additional information. Additionally, as the traveling
public becomes more familiar with the Form I-94 automation, CBP plans
to phase out distribution of the tear sheets.
Comment: One commenter asked when all nonimmigrants arriving in the
United States by air or sea will be processed electronically.
Response: CBP rolled out the Form I-94 automation over the weeks
following the effective date of the IFR, April 26, 2013. The Form I-94
automation for air and sea passengers is now complete.
Comment: One commenter asked if the 11 digit admission number from
the Form I-94 will continue to be used in the electronic Form I-94
format and whether it will be provided to the traveler at the time of
admission.
Response: The 11 digit number has not changed and will continue to
be issued electronically to travelers. Travelers can use the I-94 Web
site to find their Form I-94 number.
Comment: One commenter was concerned about travelers having notice
of the option to request a paper Form I-94 from CBP. The commenter
stated that requesting a paper form is not in the regulations and it is
not clear if the traveler should make the request on the plane or at
the POE.
Response: Travelers may request the paper form at the POE from the
CBP officer. CBP has updated information on the Web site, www.cbp.gov/I94, to indicate that a paper form may be requested at the time of
inspection. If someone requests a paper form, the person will be given
the card stock form, properly annotated, with their electronic Form I-
94 number written on the card. Due to the extra time this process
takes, issuance of a paper Form I-94 will be completed in the secondary
inspection area. Conclusion
Based on the analysis of the comments received, DHS is adopting the
interim regulations as a final rule. In response to the comments, CBP
has made some operational changes regarding the issuance of the Form I-
94 that are described below.
Operational Changes to the Form I-94 Process
In response to some public comments received, and after studying
usage and common problems of the I-94 Web site, CBP has made some
changes to the I-94 Web site since the initial rollout of the Form I-94
automation, including the addition of new features. These changes and
new features are summarized below. As described in several of the
comment responses, CBP believes these changes make the Web site a
better resource for the public and address user concerns.
First, the Web site now allows a traveler to retrieve his or her
most recent Form I-94 even if he or she has departed the United States.
A traveler may retrieve a Form I-94 issued up to five years prior to
the request date.
Second, a traveler may now retrieve his or her five-year United
States border crossing history from the Web site. The border crossing
history information is drawn from Form I-94 records. If a traveler has
entered and departed the United States with more than one travel
[[Page 91656]]
document during the five years, for example an old and new passport, he
or she will need to query each document to retrieve the complete five-
year history. CBP expects that this update to the Web site will provide
a convenient alternative to the filing of a FOIA request when a
traveler needs his or her five-year border crossing history when
applying for certain benefits.
Third, the date and class of admission are no longer required to
retrieve a Form I-94, as these data points were commonly problematic
for travelers attempting to retrieve their Form I-94. This change also
allows travelers to input the same information to retrieve both the
Form I-94 and the travel history.
Additional operational changes include a new security consent page
that addresses both privacy and security issues, an endorsement added
to the Form I-94 printout indicating that the Form I-94 has been
automated, and updates to the FAQs page of the I-94 Web site to reflect
these changes and to address additional common questions.
Statutory and Regulatory Requirements
Executive Order 13563 and Executive Order 12866 (Regulatory Planning
and Review) and (Improving Regulation and Regulatory Review)
Executive Orders 13563 and 12866 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This rule is an ``economically significant regulatory
action'' under section 3(f)(1) of Executive Order 12866. Accordingly,
the Office of Management and Budget has reviewed this regulation.
1. Purpose of the Rule
This rule amends the definition of the Form I-94, Arrival/Departure
Record, to include an electronic format. This revision enables DHS to
transition to an automated process for air and sea ports of entry
whereby DHS creates a Form I-94 in an electronic format based on
passenger, passport, and visa information DHS obtains electronically
from air and sea carriers and the Department of State as well as
through the inspection process. This rule also is consistent with CBP's
transition to accepting I-94 submissions online for use at the land
border.
This rule results in substantial cost savings (benefits) for
travelers, carriers, and CBP. CBP estimates the total net benefits to
both domestic and foreign entities in 2013 ranged from $57.9 million to
$82.7 million.\8\ Separately, CBP estimates a net benefit in 2013 of
between $41.1 million and $65.9 million for foreign travelers, $1.3
million for carriers, and $15.5 million for CBP. Net benefits to U.S.
entities (carriers and CBP) in 2013 totaled $16.8 million. In the
following regulatory assessment, we present the costs and benefits to
CBP, carriers, and travelers from Form I-94 automation using a six-year
period of analysis beginning in year 2012.
---------------------------------------------------------------------------
\8\ OMB Circular A-4 states regulatory analyses should focus on
benefits and costs that accrue to citizens and residents of the
United States (http://www.whitehouse.gov/sites/default/files/omb/assets/regulatory_matters_pdf/a-4.pdf; see ``Scope of Analysis''
section on page 15). In order to make this distinction clear, CBP
has shown the costs and benefits to foreign travelers as well as
impacts to U.S. entities.
---------------------------------------------------------------------------
2. Baseline Condition and Affected Parties
a. Automation at the Air and Sea Ports of Entry
Prior to the implementation of the interim final rule CBP published
on March 27, 2013 in the Federal Register (78 FR 18457), CBP required
any alien traveling to the United States, other than under the Visa
Waiver Program, to complete a paper Form I-94 prior to arrival. When
arriving by air and sea, the carrier provided the form to the alien
while en route to the United States. The alien typically completed the
form while en route to the United States, spending approximately 8
minutes filling out the form.\9\ Upon arrival at the U.S. airport or
seaport, the alien presented the completed Form I-94 to the CBP officer
for inspection. If permitted to enter the United States, the officer
tore the form at the perforation, stamped the lower portion, and
returned it to the alien. The officer sent the top portion of the form
to a centralized facility where all Forms I-94 were entered into CBP's
data systems. Generally, the alien later returned the lower portion of
the Form I-94 to the carrier upon departure from the United States, who
in turn returned it to CBP.
---------------------------------------------------------------------------
\9\ See 78 FR 70570 (November 26, 2013) for the latest burden
estimate for the Form I-94's information collection.
---------------------------------------------------------------------------
In addition to acting as an arrival and departure record, the Form
I-94 also serves as evidence of admission or parole into the United
States for nonimmigrants. Some third parties, such as universities or
local or state government benefit-granting agencies, may require an
alien to present evidence of admission or parole to the United States.
Prior to the interim final rule, in these cases, the alien could
present the bottom portion of the Form I-94, which was returned to them
when they were admitted, paroled, or adjusted to an immigration status.
Aliens could also choose to present Form I-94 to establish employment
eligibility and identity or eligibility for certain public benefits.
If an alien loses the bottom portion of the Form I-94, he or she
may file Form I-102, Application for Replacement/Initial Nonimmigrant
Arrival-Departure Document, with USCIS to request a replacement. The
form has a Paperwork Reduction Act burden of 25 minutes per form and a
fee of $330. According to the USCIS, prior to the implementation of
this rule, 17,700 Forms I-102 were filed each year. At the time the
interim final rule was published, USCIS estimated that the rule would
result in a decrease in the number of Forms I-102 filed to 8,804 in
2013 and 5,771 in later years.\10\ Following the implementation of the
rule in April 2013, the total number of Forms I-102 filed in 2013 was
13,715. USCIS now expects 6,782 Forms I-102 to be filed each year.\11\
This is a reduction of 10,918 each year due to this rule.
---------------------------------------------------------------------------
\10\ Communication with USCIS on February 8, 2013.
\11\ Supporting Statement for Form I-102. Available at http://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=201402-1615-001.
Accessed September 28, 2016.
---------------------------------------------------------------------------
According to the Office of Immigration Statistics (OIS),\12\ about
53.9 million aliens entered the United States using a Form I-94 or
equivalent (i.e. using a Form I-94W or obtaining an electronic travel
authorization when entering under the Visa Waiver Program) in 2012. Of
these, about 20.3 million entered under the Visa Waiver Program (VWP).
These aliens do not use a Form I-94 and are therefore unaffected by
this rule,\13\ so we exclude them from this analysis. Additionally, OIS
figures include all modes of transportation. I-94 automation affects
only aliens
[[Page 91657]]
arriving by air and sea, so we must exclude those arriving by land. We
therefore subtract the number of aliens entering the U.S. at land
border ports using a Form I-94 in 2012. According to CBP's Office of
Field Operations, about 15.4 million aliens arriving from Mexico and
1.2 million arriving from Canada entered the United States at the land
border using a Form I-94 in 2012. We subtract these from the admission
total, leaving 16,952,996 non-VWP aliens who arrived in the U.S. by air
or sea using a Form I-94 in 2012.
---------------------------------------------------------------------------
\12\ 2012 Yearbook of Immigration Statistics. Table 28. https://www.dhs.gov/yearbook-immigration-statistics. Accessed October 26,
2016.
\13\ In addition to automating the Form I-94, this final rule
adds a valid, unexpired nonimmigrant DHS admission or parole stamp
to the list of documents that constitute evidence of registration.
Thus, such a stamp can serve as evidence of registration for Visa
Waiver Program travelers and for travelers arriving by land who
would otherwise be required to comply with any registration
requirement under the INA. However, the addition of the passport
stamp to the list of documents that constitute evidence of
registration does not have an economic impact on travelers.
Therefore, this analysis focuses on the changes to the Form I-94.
---------------------------------------------------------------------------
We next estimate the number of Form I-94 travelers to the United
States in the rest of the period of analysis.\14\ For 2013 and 2014, we
again use actual data from the Office of Immigration statistics. For
2015 through 2017, we use the traveler projections developed by the
Office of Travel and Tourism Industries (OTTI) within the U.S.
Department of Commerce.\15\ The OTTI forecasts travel growth through
2020 for the 20 countries with the highest 2014 travel volume. Since
the vast majority of travelers from most countries arrive in the United
States by air and sea, we assume that OTTI's travel growth rates best
reflect air and sea travel growth. For Mexico and Canada, we subtract
the number of Form I-94 travelers arriving by land in 2012 before
applying the OTTI growth rates.\16\ We apply the OTTI projected growth
rates to the number of Forms I-94 by country we obtained from OIS. For
countries not separately forecasted by OTTI, we use OTTI's average
growth rate for overseas travel for each year to determine overseas
travel from these countries. We present the total number of projected
Forms I-94 for each year from 2012-2017 absent the rule in Exhibit 1
below.
---------------------------------------------------------------------------
\14\ 2013 and 2014 Yearbook of Immigration Statistics. Table 28.
https://www.dhs.gov/yearbook-immigration-statistics. Accessed
October 26, 2016.
\15\ U.S. Department of Commerce, Office of Travel and Tourism
Industries ``Forecast of International Travelers to the United
States by Top Origin Countries.'' October 2015. Available at http://travel.trade.gov/view/f-2000-99-001/forecast/Forecast-COUNTRIES.pdf.
\16\ For the purposes of these projections, we assume that
aliens arriving from Mexico and Canada at land borders are Mexican
and Canadian citizens. There are a small number of citizens of other
countries who enter the U.S. at land borders. Because the number for
each country is small, the effect on the projections is minimal.
Exhibit 1--Projected Form I-94 Respondents Traveling by Air and Sea
[*denotes projection]
------------------------------------------------------------------------
------------------------------------------------------------------------
2012.................................................... 16,952,996
2013.................................................... 16,832,602
2014.................................................... 20,680,611
2015.................................................... 21,700,329
2016.................................................... 22,628,579
2017.................................................... 23,871,524
------------------------------------------------------------------------
b. Electronic Implementation at the Land Border
This rule affects the process of obtaining a Form I-94 for
travelers arriving by air and sea and is consistent with CBP's
transition to accepting I-94 submissions online for use at the land
border. In addition to the automation at air and sea ports of entry,
CBP modified the process by which a traveler arriving at the land
border can provide Form I-94 information and pay the related fee by
adding an electronic option. The enhanced I-94 Web site launched on
September 29, 2016.
Due to the differences in documentary requirements for land border
entries, the Form I-94 issuance process varies slightly at a land
border port of entry than at an air or sea port of entry. Currently
when a traveler requiring a Form I-94 arrives at the land border, he/
she goes to secondary inspection where he/she provides the I-94
information to a CBP officer who inputs the data into a computer. The
process takes approximately 8 minutes in addition to the time of the
actual inspection. After determining the traveler's admissibility, the
CBP officer then prints a Form I-94 for the traveler and refers him/her
to the cashier to pay the associated $6 fee.\17\ It takes approximately
20 minutes to wait in line to pay the fee and approximately 2 minutes
to pay the fee.
---------------------------------------------------------------------------
\17\ The amount of fee for the issuance of the Form I-94 at a
land border port of entry is provided for in 8 CFR
103.7(b)(1)(ii)(D).
---------------------------------------------------------------------------
3. Costs
We next estimate the costs and benefits of this rule for all
affected parties. For the interim final rule, we assumed that the rule
would go into effect on January 1, 2013. The rule actually went into
effect on April 22, 2013. Because certain key data on arrivals by class
of admission is only available publicly on an annual basis, we
incorporate some prorated arrivals estimates into this analysis. For
the purpose of this analysis, we assume that the rule went into effect
on May 1, 2013 and we prorate the 2013 estimates to reflect that the
rule was in effect for 8 months of the year. To the extent that travel
among various classes of admission is not consistent throughout the
year, the 2013 estimates may be overstated or understated.
The costs of this rule are borne by both CBP and aliens traveling
to the United States.
a. Costs to CBP of Automation at the Air and Sea Ports of Entry
This rule allows for the automation of the paper Form I-94 in the
air and sea environments.\18\ Almost all of the traveler information
collected on the Form I-94 prior to the implementation of this rule was
redundant in the air and sea environments because CBP already obtained
the same information electronically from other sources. In advance of
the implementation of this rule, CBP linked its data systems to use the
information from these alternate sources to create an electronic Form
I-94 during the admission process. CBP creates the electronic Form I-94
by pulling information from the traveler's Advance Passenger
Information System (APIS) record and any Consular Consolidated Database
(CCD) record and then by entering any additional data obtained during
the inspection process. This electronic process allows stakeholders
that have access to CBP's databases to continue to have access to
traveler information electronically. CBP's Office of Information
Technology estimates the cost to link data systems and to fully
automate the Form I-94 was about $1 million in calendar year 2012. In
addition, it estimates the cost to develop the secure Web site was
about $321,000 in 2012. CBP anticipates spending $92,000 per year in
operations and maintenance costs for these systems. In total, CBP
incurred costs of $1,321,000 in 2012 and will incur costs of $92,000 in
following years.
---------------------------------------------------------------------------
\18\ A small number of paper Forms I-94 are still being used for
certain aliens such as aslyees, certain parolees, and those who
request a paper Form I-94.
---------------------------------------------------------------------------
b. Costs of Electronic Implementation at the Land Border
CBP's Office of Information Technology estimates that it cost
approximately $540,000 in 2016 to develop the Web site and create the
online payment capabilities. CBP will not bear any additional costs to
process travelers as a result of this process.
Travelers will not face new costs or time burdens under the new
optional process at the land border. Under this process, travelers will
have the option to use a new CBP Web site to answer the Form I-94
questions and to pay the $6 fee in advance of travel. As the Form I-94
questions are not changing, the time burden to submit the information
is not changing. Similarly, we estimate that it will take the traveler
2 minutes to pay the fee online, which is the same as the
[[Page 91658]]
time it takes if the traveler pays at the border, and the fee itself is
not changing.
c. Costs Borne by Travelers to the United States From Automation at Air
and Sea Ports of Entry
Although most travelers do not use the Form I-94 for any reason
once they are admitted or paroled to the United States, some aliens do
make use of the form to demonstrate lawful admission or parole to the
United States to the Social Security Administration, universities,
state agencies such as Departments of Motor Vehicles, public assistance
agencies and organizations, or some other party.
Aliens may also choose to present a Form I-94 to establish
employment eligibility and identity, or eligibility for certain public
benefits. To accommodate this need for the Form I-94, CBP has made an
electronic Form I-94 available to aliens on the secure I-94 Web site.
Travelers receive written information on how to access the Web site
upon their arrival to the United States. Aliens may log into the Web
site using 5 pieces of basic identifying information that is either
known to the traveler (e.g. their first name, last/surname, and date of
birth) or readily available on their passport (e.g. passport number,
country of issuance). CBP estimates that it takes the traveler 4
minutes to log into the Web site using identifying information and to
print the electronic form. This is less time than the paper Form I-94's
8 minute time burden for entering 17 data elements. This 4 minute
estimate does not include the time it takes to travel to a location
with computer and internet access; that cost is treated separately
later in this section.
In addition, CBP makes the paper Form I-94 available to certain
classes of aliens and upon request at the secondary inspection station
at ports of entry and at CBP Deferred Inspection Sites (DIS), which are
located at most ports of entry and are largely open during regular
business hours. Since the interim final rule went into effect, very few
travelers have requested the paper form.
To estimate the costs to travelers to access their Form I-94
electronically, we must first determine the number of aliens who access
the Web site, the number who do not have ready access to the internet,
the distance they have to travel to access the internet, and the
average wage rate for all aliens entering the United States by air or
sea. First, we assess the number of aliens who access the Web site.
Exhibit 2 shows the number of travelers who entered the United States
by air or sea in 2012 sorted by various categories of admission.\19\
The majority of Form I-94 visitors to the United States--about 76
percent--are tourists and business travelers entering on B-1/B-2 visas.
In most cases, these travelers do not have a need for their Form I-94
now that the passport stamp serves as evidence of alien registration.
While in the U.S., these B-1/B-2 visa travelers may use their foreign
driver's license, so there is generally no need for them to apply for a
U.S. driver's license. They are ineligible for employment or enrollment
in a university while traveling on a B-1/B-2 visa. They are generally
not eligible for public benefits without a change in status. For these
reasons, for the analysis for the interim final rule, we assumed that
no B-1/B-2 visa holders would need to access the Web site to obtain
their electronic Form I-94. However, public comments stated that some
B-1/B-2 travelers do in fact need their Form I-94. According to the Web
site's query history, approximately 1 percent of B-1/B-2 travelers
access the Web site.\20\ Therefore, for this analysis, we assume that 1
percent of these travelers will continue to access the Web site in the
future.
---------------------------------------------------------------------------
\19\ CBP analysis of data from 2012 Yearbook of Immigration
Statistics. Table 28. http://www.dhs.gov/files/statistics/publications/yearbook.shtm. Accessed June 4, 2014.
\20\ Communication with CBP's Office of Field Operations on June
10, 2014.
Exhibit 2--2012 Air and Sea Form I-94 Respondents by Class of Admission
*
------------------------------------------------------------------------
Number Percentage
------------------------------------------------------------------------
Tourists and Business Travelers (B-1/B- 12,938,329 76.3
2).....................................
Temporary workers....................... 1,631,683 9.6
Students................................ 1,594,816 9.4
Other/Unknown........................... 461,935 2.7
Diplomats............................... 326,233 1.9
-------------------------------
Total............................... 16,952,996 ..............
------------------------------------------------------------------------
* Estimates may not total due to rounding.
Because so many parties at various levels of government and outside
of the government use the Form I-94, prior to the implementation of the
interim final rule CBP could not estimate the number of non-B-1/B-2
travelers that would access the Web site. For the analysis of the
interim final rule, we assumed that all travelers, other than B-1/B-2
travelers, who previously received a paper Form I-94 would log into the
Web site to print off their electronic Form I-94. According to the Web
site's query history since the implementation of the interim final
rule, approximately 75 percent of non-B-1/B-2 travelers access the Web
site. Exhibit 3 shows the number of travelers we estimate will access
their electronic Form I-94 via the CBP Web site during the period of
analysis. We note that those with a need for a Form I-94 who face
obstacles to accessing their Form I-94 electronically may request a
paper Form I-94 at the secondary inspection station upon their arrival
at the port or at a DIS during their stay in the United States.
However, according to CBP subject matter experts, very few aliens have
requested paper Forms I-94 at the ports of entry and those who have
requested them at DIS have done so primarily to correct erroneous
information on their electronic Form I-94.
Exhibit 3--Estimated Travelers Needing to Access Electronic Form I-94
----------------------------------------------------------------------------------------------------------------
B-1/B-2 Other * Total
----------------------------------------------------------------------------------------------------------------
2012............................................................ 0 0 0
[[Page 91659]]
2013 **......................................................... 85,622 1,994,663 2,080,285
2014............................................................ 157,793 3,675,979 3,833,772
2015............................................................ 165,574 3,857,233 4,022,807
2016............................................................ 172,656 4,022,230 4,194,886
2017............................................................ 182,140 4,243,163 4,425,303
----------------------------------------------------------------------------------------------------------------
* Other includes temporary workers, students, diplomats, and others/unknowns.
** 2013 travelers are estimated based on the rule being in effect for two thirds (8 months) of the year.
We next estimate the number of aliens who do not have ready access
to the internet while in the United States and would need to travel to
access their electronic Form I-94. We assume that students and
diplomats have ready access to the internet at their schools or places
of business respectively. The 1 percent of B-1/B-2 travelers who access
their electronic Form I-94 typically need it when staying in the United
States for over 6 months. These people likely have other uses for the
internet during their stay and could access their electronic Form I-94
when using the internet for another purpose. Therefore, we assume they
do not need to travel to access their electronic Form I-94. Also, as
noted above, CBP will continue to make the paper Form I-94 available
upon request at the secondary inspection station at ports of entry or
at DIS to those with a need for a Form I-94 and who face obstacles to
accessing their electronic Form I-94.
Temporary workers come to the United States for varying lengths of
time to fill positions where there is a shortage of labor in the United
States. These positions can be in very highly technical occupations,
such as computer programming, but they can also be in less technical
occupations such as agricultural labor.
Because this category of admission includes such a wide range of
workers, we cannot say with certainty that all temporary workers have
ready access to the internet while in the United States. Similarly, we
do not know how accessible the internet is for those in the ``Other/
Unknown'' category. The aliens least likely to have internet access are
those working as temporary agricultural laborers.
According to the U.S. Department of Agriculture (USDA),
approximately 67 percent of farms have internet access.\21\ The primary
use for the electronic Form I-94 for these temporary workers is to
demonstrate employment eligibility to their employers. Generally, this
document will be the only acceptable evidence of employment
authorization that such workers will have to satisfy the Employment
Eligibility Verification (Form I-9) requirements. Because of the Form
I-9 requirements, many employers do not allow their employees to begin
working for pay until the workers have presented them with the print-
out of their electronic Form I-94. The employers have spent a
considerable amount of money bringing these foreign workers to the
United States to work. By offering internet access to employees,
employees and employers can complete the employment eligibility
verification process timely, which allows the employee to begin working
sooner. Because this incremental use of the internet is virtually
costless to the employer and the employer would benefit from their
employee's prompt access to their electronic Form I-94, we assume that
employers with internet access allow their employees to use their
internet connection to access their electronic Forms I-94.\22\ As
stated previously, 67 percent of farms have internet access. For the
purposes of this analysis, we assume that 33 percent (100 percent-67
percent) of travelers in the ``Temporary Workers'' and ``Other/
Unknown'' categories (for example, 690,894 in 2012) would need to
travel to access their electronic Form I-94.
---------------------------------------------------------------------------
\21\ United States Department of Agriculture National
Agricultural Statistics Service. ``Farm Computer Usage and
Ownership.'' August 2013. Available at: http://usda.mannlib.cornell.edu/usda/current/FarmComp/FarmComp-08-20-2013.pdf. Accessed June 4, 2014.
\22\ It is also possible that some employers without internet
access help transport their employees to a location with internet
access. Employers have expended considerable effort to sponsor
temporary workers and they may view this as part of the cost of
using foreign temporary workers. However, as the burden of
demonstrating employment eligibility is on the worker, we assume
that the worker must bear any travel costs to obtain their
electronic Form I-94. To the extent that the employer is able to
provide more efficient access to the internet, costs to workers will
be lower.
---------------------------------------------------------------------------
CBP received several public comments regarding the ability of
travelers to obtain their printed electronic Form I-94 before they need
it. One employer of temporary workers commented that according to their
company policy, employees cannot use company computers to access the
internet until they have demonstrated their legal admission to the
United States by presenting a copy of their Form I-94.
While CBP believes that most employers with internet access allow
their employees to use a company computer to access their Form I-94, we
acknowledge that a small number of employers may choose not to do so,
or company policy may prohibit non-employees from accessing company
equipment. These travelers are included in the 33 percent of temporary
workers who we assume have to travel to access the internet.
One commenter noted that employees sometimes need to start work
very soon after arrival and do not have time to travel to a location
where they can print their electronic Form I-94. Once again, CBP notes
that any traveler, but particularly travelers with an immediate need
for their Form I-94 may request a paper Form I-94 at the secondary
inspection station at ports of entry or at CBP DIS. Another commenter
said that travelers often do not know they need a Form I-94 until after
they have left the airport, so requesting a paper Form I-94 at the port
is not a practical option. CBP acknowledges that many people may not
know that they need their Form I-94 until it is asked of them. As such,
CBP has made access to the I-94 Web site as easy as possible and will
continue to provide paper Forms I-94 upon request at CBP DIS. Another
commenter suggested that CBP provide kiosks at the ports of entry where
travelers could print their electronic Form I-94 prior to leaving the
airport. CBP has explored the possibility of placing kiosks at the
largest airports and seaports to give travelers the opportunity to
print their Form I-94 prior to leaving the port of entry. CBP has
determined that the benefits to the public do not outweigh the cost to
CBP, so it is not proceeding with kiosks at this time. See the
Regulatory Alternatives section for more information.
Now that we have estimated the number of aliens who do not have
ready access to the internet, we need to
[[Page 91660]]
develop an assumption for how long it takes to travel to a location
where they can access the internet. Based on our online review of
internet services provided by public libraries, we found that virtually
all public libraries provide public access to computers and the
internet, though many charge a nominal fee for printing. There are
16,766 public libraries in the United States.\23\ According to the
Department of Education, 94 percent of households live within 10 miles
of a public library and 83 percent live within 5 miles of one.\24\
Given the large number of library locations nationwide that provide
access to the internet and the fact that CBP makes the paper Form I-94
available upon request at ports and DIS, we believe most aliens who
travel to access the internet to print their electronic Form I-94 only
need to travel a short distance to do so. We estimate that round-trip
distance required to access a computer terminal and printing station at
a public library is 20 miles. We also assume that traveling to and from
a library takes 60 minutes of an aliens' time, which includes travel
time and the time to enter the library, locate an available computer,
wait to access the computer and print a Form I-94. In this analysis, we
assume that users pay $0.25 to print their electronic Form I-94 based
on a review of available online printing fees charged at public
libraries.
---------------------------------------------------------------------------
\23\ American Library Association. ``Quotable Facts about
America's Libraries.'' September 2012. http://www.ala.org/offices/ola/quotablefacts/quotablefacts/. Accessed Jun 13, 2014.
\24\ Department of Education: Households' Use of Public and
Other Types of Libraries: 2002. Derived from Table 19. Available at
https://harvester.census.gov/imls/pubs/Publications/2007327.pdf.
Accessed June 4, 2014.
---------------------------------------------------------------------------
We next estimate the value of time for those travelers affected by
this rule. Federal agencies typically estimate a monetary value of time
used or saved as a result of their regulatory actions. This allows
agencies to estimate the additional costs and benefits of their
regulatory actions on affected parties. The U.S. Department of
Transportation (DOT) provides guidance on the value of time to use for
economic analysis.\25\ This guidance provides point estimates as well
as ranges for values of time for travelers based on average wage rate
analysis for different categories of travel.
---------------------------------------------------------------------------
\25\ U.S. Department of Transportation: ``Revised Departmental
Guidance on Valuation of Travel Time in Economic Analysis.''
September 28, 2011. Table 5. Available at http://www.dot.gov/sites/dot.dev/files/docs/vot_guidance_092811c.pdf. Accessed June 4, 2014.
---------------------------------------------------------------------------
According to DOT estimates, the value of travel time is more than
twice as high for air travelers than for those traveling by surface
modes, which can be explained by the relatively high cost of air
travel. We note that the DOT estimates are intended to be used to
analyze actions that will reduce the time spent traveling. A person's
value of time while traveling may differ from their value of reducing
travel time. In most instances, this rule does not reduce the time
spent traveling because an alien typically completes the Form I-94
while en route to the United States, but rather reduces the time spent
on paperwork while traveling. The traveler is now able to spend this
time on leisure or business activities such as reading or drafting
documents. CBP believes that using the DOT values of travel time in
this situation is the most appropriate estimate because it reflects the
higher values of time for air travelers. Further, we note that to the
extent a person's value of time while traveling is different than their
value of reducing travel time, this difference is likely encompassed in
the DOT plausible range for the value of travel time. The DOT estimates
are in 2009 dollars, but the DOT provides a methodology to inflate its
estimates for future years. We have inflated the estimates to 2012
dollars, which is the first year of our period of analysis.\26\
---------------------------------------------------------------------------
\26\ To determine the hourly value of travel time savings in
2012 U.S. dollars, we applied the DOT's suggested growth rate of 1.6
percent per year to the hourly time values listed in 2009 U.S.
dollars.
---------------------------------------------------------------------------
As a primary estimate, we use the DOT's point estimate for the
value of time for all-purpose air travel, which includes both personal
and business travel. This point estimate is $44.15, when inflated to
2012 dollars. We also use the DOT's range for all-purpose travel to
show a range of low and high estimates. This range is from $36.50 to
$54.75 when inflated to 2012 dollars. We apply these low, primary, and
high values of time to the travelers in our analysis. We use this
travel value of time framework to estimate the costs and savings of
this rule, since affected aliens previously completed the paper Form I-
94 while traveling.
We recognize that those who must travel to access the internet are
a special case of travelers and probably have different values of time
than the average air traveler. As previously discussed, the aliens
least likely to have internet access are those working as temporary
agricultural laborers. To estimate the value of time for these aliens,
we use the wage rate for H-2A seasonal (temporary) agricultural
workers.
According to the Department of Labor, H-2A temporary agricultural
workers have an average wage rate of 9.79 per hour.\27\ We recognize
that there are other classes of temporary workers, notably H-1B visa
holders, who likely have higher wage rates; however, these workers are
predominantly in specialized occupations such as medicine and computer
programming and are likely to have ready access to the internet.
Employers of these employees have an incentive to provide this access
as it is virtually costless and would allow workers to start working
earlier. We note that, notwithstanding the benefits to the employer of
providing this access, we received public comments indicating that some
employers of H-1B employees may not allow their workers to access
computers to print their electronic Form I-94. CBP does not believe
this represents a large number of employers.
---------------------------------------------------------------------------
\27\ Calculated from the Office of Foreign Labor Certification's
FY 2012 Annual Report using the weighted average of state average
wage rates. Available at: http://www.foreignlaborcert.doleta.gov/pdf/OFLC-2012_Annual_Report-11-29-2013-Final%20Clean.pdf. Accessed
on June 16, 2014.
---------------------------------------------------------------------------
Further, workers in occupations such as medicine and computer
programming are likely to have internet access from other sources, such
as their hotel or other place of lodging. Finally, as discussed above,
we have assumed that all temporary workers would access their
electronic Form I-94 and that 33 percent of them would have to travel
to do so. Any H-1B worker who must travel to access their electronic
Form I-94 is included in these estimates. But because we do not believe
the H-1B workers make up a large portion of the temporary workers who
must travel to access their electronic Form I-94, we use the estimated
wage of H-2A workers as our estimate for the value of time for those
who must travel to access their electronic Form I-94.
Now that we have estimated the number of aliens who log into CBP's
Web site to print their electronic Form I-94, the time it takes to
access that Web site, the number of people who need to travel to access
the internet, the time it takes to travel to and from an internet
access site, and the values of time for these groups, we can calculate
this rule's cost to these travelers. We first address the cost to log
into CBP's electronic Form I-94 Web site. Once again, CBP estimates
that it takes travelers 4 minutes to access and print their electronic
Form I-94, and that it costs them $0.25 per page to print their
electronic Form I-94. Exhibit 4 shows the 2013 to 2017 travelers' costs
for accessing and printing their electronic Forms I-94.\28\ As shown,
in 2013,
[[Page 91661]]
traveler costs of time to access electronic Forms I-94 and their cost
to print them ranged from $5.5 million to $8.1 million with a primary
estimate of $6.6 million.
---------------------------------------------------------------------------
\28\ The annual estimates of Forms I-94 in Exhibit 4 are based
on projections for all visa categories using growth rate estimates
developed OTTI. We adjust these estimates using our assumptions that
1 percent of B-1/B-2 travelers and 75 percent of non-B-1/B-2
travelers access the I-94 Web site.
Exhibit 4--Traveler Costs of Time to Access and Cost to Print Electronic Form I-94
[Undiscounted 2012$] *
--------------------------------------------------------------------------------------------------------------------------------------------------------
2013 2014 2015 2016 2017
--------------------------------------------------------------------------------------------------------------------------------------------------------
Forms I-94............................................... 2,080,285 3,833,772 4,022,807 4,194,886 4,425,303
DOT--Low ($)............................................. 36.50 36.50 36.50 36.50 36.50
DOT--Primary ($)......................................... 44.15 44.15 44.15 44.15 44.15
DOT--High ($)............................................ 54.75 54.75 54.75 54.75 54.75
Time Cost--Low ($)....................................... 5,061,648 9,328,146 9,788,098 10,206,792 10,767,432
Time Cost--Primary ($)................................... 4,730,513 8,147,564 7,990,003 7,786,713 7,677,030
Time Cost--High ($)...................................... 4,914,222 8,792,673 8,957,496 9,068,603 9,288,081
Printing Cost ($)........................................ 520,071 958,443 1,005,702 1,048,722 1,106,326
----------------------------------------------------------------------------------------------
Total Cost--Low ($).................................. 5,581,720 10,286,589 10,793,800 11,255,514 11,873,758
Total Cost--Primary ($).............................. 6,643,502 12,243,356 12,847,050 13,396,594 14,132,443
Total Cost--High ($)................................. 8,112,544 14,950,663 15,687,848 16,358,910 17,257,474
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Estimates may not total due to rounding.
We next address the travel costs for those aliens who do not have
ready access to the internet. Once again, we assume that 33 percent of
travelers in the ``Temporary Workers'' and ``Other/Unknown'' categories
(approximately 12 percent of the total, see exhibit 2) would need to
travel 20 miles roundtrip and spend 60 minutes of time to access their
electronic Form I-94. We also assume that these travelers have a value
of time best characterized by the average H-2A wage rate of $9.79 per
hour. For the cost of travel, we use the 2012 IRS standard mileage rate
for business travel of $0.555 per mile.\29\ Exhibit 5 shows the 2013 to
2017 aliens' travel costs to access the internet. As shown we estimate
that the total travel costs were $9.3 million in 2013.
---------------------------------------------------------------------------
\29\ Internal Revenue Service. IR-2011-116, December 9, 2011.
Available at http://www.irs.gov/newsroom/article/0,,id=250882,00.html.
Exhibit 5--Travel Costs *
----------------------------------------------------------------------------------------------------------------
2013 2014 2015 2016 2017
----------------------------------------------------------------------------------------------------------------
Affected Aliens................. 444,381 818,952 859,333 896,092 945,312
H2A Wage Rate ($)............... 9.79 9.79 9.79 9.79 9.79
Time Cost ($)................... 4,350,487 8,017,542 8,412,870 8,772,738 9,254,608
Mileage Cost ($)................ 4,932,626 9,090,369 9,538,597 9,946,618 10,492,967
-------------------------------------------------------------------------------
Total Travel Cost ($)........... 9,283,113 17,107,912 17,951,467 18,719,357 19,747,575
----------------------------------------------------------------------------------------------------------------
* Estimates may not total due to rounding. Undiscounted dollars.
To summarize, both CBP and aliens bear costs as a result of this
rule. CBP bore the costs to link its data systems and to build a Web
site so aliens can access their electronic Forms I-94. CBP continues to
incur annual costs to operate and maintain the I-94 Web site. Temporary
workers and aliens in the ``Other/Unknown category (see Exhibit 2) bear
costs when logging into the Web site, traveling to a location with
public internet access and printing a paper copy of their electronic
Form I-94. The costs averaged $24.08 per traveler in 2013 for those in
the temporary worker and ``Other/Unknown'' categories who have to
travel to access their electronic Form I-94. Aliens arriving as B-1/B-2
travelers, diplomats, students, and those temporary workers and aliens
in the ``Other/Unknown'' category who do not need to travel to access
their Form I-94 bear costs when logging into the Web site and printing
electronic Forms I-94. Using the primary estimate for a traveler's
value of time, these costs for these groups averaged $3.19 per person.
Exhibit 6 summarizes the 2012-2017 costs of this rule. As shown,
costs for this rule in 2013 ranged from $15.0 million to $17.5 million.
In our primary estimate, costs for this rule are $16.0 million in 2013.
Less than one percent of these costs are incurred by the U.S. entities.
These are CBP's costs for automating the electronic Form I-94 and
developing the Web site travelers use to access their electronic Form
I-94. In 2013, CBP's costs were $92,000.
Exhibit 6--Cost Summary
[Undiscounted 2012$] *
--------------------------------------------------------------------------------------------------------------------------------------------------------
2012 2013 2014 2015 2016 2017
--------------------------------------------------------------------------------------------------------------------------------------------------------
CBP Costs
I-94 Air/Sea Systems Costs.............................. 1,321,000 92,000 92,000 92,000 92,000 92,000
[[Page 91662]]
I-94 Land Systems Costs................................. .............. .............. .............. .............. 540,000 0
Total CBP Costs......................................... 1,321,000 92,000 92,000 92,000 632,000 92,000
Traveler Costs
Website Access Costs--Low............................... 0 5,061,648 9,328,146 9,788,098 10,206,792 10,767,432
Website Access Costs--Primary........................... 0 6,123,431 11,284,913 11,841,348 12,347,872 13,026,117
Website Access Costs--High.............................. 0 7,592,473 13,992,220 14,682,147 15,310,188 16,151,148
Travel Time Costs....................................... 0 4,350,487 8,017,542 8,412,870 8,772,738 9,254,608
Mileage Costs........................................... 0 4,932,626 9,090,369 9,538,597 9,946,618 10,492,967
Printing Costs.......................................... 0 520,071 958,443 1,005,702 1,048,722 1,106,326
Total Traveler Costs--Low........................... 0 14,864,832 27,394,501 28,745,266 29,974,870 31,621,333
-----------------------------------------------------------------------------------------------
Total Traveler Costs--Primary....................... 0 15,926,615 29,351,267 30,798,517 32,115,950 33,880,018
Total Traveler Costs--High.......................... 0 17,395,656 32,058,574 33,639,315 35,078,266 37,005,049
-----------------------------------------------------------------------------------------------
Grand Total Costs--Low.......................... 1,321,000 14,956,832 27,486,501 28,837,266 30,606,870 31,713,333
Grand Total Costs--Primary...................... 1,321,000 16,018,615 29,443,267 30,890,517 32,747,950 33,972,018
Grand Total Costs--High......................... 1,321,000 17,487,656 32,150,574 33,731,315 35,710,266 37,097,049
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Estimates may not total due to rounding.
4. Benefits
a. Benefits of Automation at Air and Sea Ports of Entry
This rule has benefits for CBP, carriers, and travelers to the
United States. Prior to the implementation of the interim final rule,
CBP returned the bottom portion of the Form I-94 to the traveler and
retained the top portion of the form. The information on the top
portion of the form was entered into CBP systems for use by CBP and
other agencies. CBP also received this information electronically from
other sources. In 2012, CBP linked its data systems to create an
electronic Form I-94, thus eliminating the need to continue entering
the data from the paper Form I-94 for air and sea travelers into CBP
systems. Prior to the implementation of the interim final rule, CBP
spent approximately $17.8 million per year on contract support for
manual Form I-94 data entry. CBP still must spend approximately $2.4
million in contract expenses to enter data from the paper Forms I-94
collected at the land border and the few that continue to be collected
at airports and seaports. We therefore estimate that this rule saves
CBP $15.4 million each year in contract costs. It is possible that
these savings could grow in future years if large numbers of travelers
at the land border opt for the voluntary electronic option.
CBP processing has also become more efficient as a result of this
rule. Prior to the implementation of the interim final rule, when the
traveler gave the completed Form I-94 to the CBP officer during the
inspection, the officer reviewed the form for errors and made
corrections as needed. The officer then stamped the top and bottom
portions of the form with the admission or parole stamp, notated the
alien's classification and duration of admission or parole and stapled
it to the traveler's passport. The interim final rule eliminated this
process.
A study of the processing times at three major U.S. airports
immediately following the implementation of the interim final rule
yielded mixed results; one airport showed a decrease in processing time
following the change in process, another showed an increase, and the
third showed no statistically significant difference in processing
times. We note that CBP has since resolved some technical issues with
the user interface design of the system used by CBP officers during
primary inspection that arose with the automated process. CBP has
anecdotal evidence that processing times have now dropped nationwide as
a result of the transition to the automated Form I-94 process.
CBP is conducting a more comprehensive time study that will examine
the entire time period following the implementation of the automated
process, but results of this study are not yet available. Accordingly,
for the purposes of this analysis, we assume that this rule will not
affect CBP processing times. To the extent that eliminating the paper
Form I-94 reduced processing times, CBP was able to focus its resources
on other areas, improving security and expediting the processing of
passengers.
We next examine the printing savings this rule generates for CBP
and carriers. Prior to the implementation of the interim final rule,
both CBP and carriers printed and stored Forms I-94. CBP printed forms
for use in primary and secondary passenger inspections when the
traveler did not fill out a form in advance or when the traveler made
an error in filling out the form. Prior to this rule, CBP spent
$153,360 each year printing the Form I-94 for air and sea travelers.
Since the interim final rule's implementation, CBP no longer needs to
print the Form I-94 for most of these travelers,\30\ which eliminates
this expense.
---------------------------------------------------------------------------
\30\ CBP still prints a small number of forms for use at
airports and seaports for certain aliens such as asylees, certain
parolees, and those who request a paper Form I-94.
---------------------------------------------------------------------------
Before the implementation of the interim final rule, carriers
printed the Forms I-94 for their passengers to complete before their
arrival in the United States. To estimate printing costs for carriers,
CBP obtained an estimate of total Form I-94 printing and storage costs
from a major airline. We increased this cost proportionally based on
annual international inbound passenger volumes to estimate the entire
industry's cost to print and store paper Forms I-94. Based on this
methodology, CBP estimates that carriers spent $1,344,450 annually to
print and store the Form I-94. Since the interim final rule's
implementation, carriers no longer need to print or store the Form I-
94, which eliminates these expenses.
We next estimate the value of air and sea travelers' time savings
resulting from the elimination of the paper Form I-94. Prior to the
implementation of the interim final rule, travelers spent 8 minutes
filling out the Form I-94 while in transit to the United States. This
rule eliminates the paper Form I-94 for air and sea travelers and, with
it, the 8-
[[Page 91663]]
minute time burden.\31\ We again apply the DOT range of plausible
values of time for air travelers, as well as their point estimate for
this value, to these aliens to determine the time savings from the Form
I-94 automation. Exhibit 7 shows the 2013 to 2017 travelers' reduction
in time burden resulting from no longer needing to fill out the paper
Form I-94. As shown, in 2013, the value of the reduction in time burden
ranged from $54.6 million to $81.9 million. In our primary estimate,
the reduction in time burden was $66.1 million in 2013.
---------------------------------------------------------------------------
\31\ For those with a need to access their electronic Form I-94,
this burden relief is partially offset by the 4 minute time burden
to access the Web site. The costs for this access are discussed in
the costs section above.
Exhibit 7--Reduction in Time Burden*
--------------------------------------------------------------------------------------------------------------------------------------------------------
2013 2014 2015 2016 2017
--------------------------------------------------------------------------------------------------------------------------------------------------------
Forms I-94............................................... 11,221,734 20,680,611 21,700,329 22,628,579 23,871,524
DOT--Low ($)............................................. 36.50 36.50 36.50 36.50 36.50
DOT--Primary ($)......................................... 44.15 44.15 44.15 44.15 44.15
DOT--High ($)............................................ 54.75 54.75 54.75 54.75 54.75
Benefit--Low ($)......................................... 54,608,355 100,638,110 105,600,365 110,117,513 116,166,058
Benefit--Primary ($)..................................... 66,063,556 121,748,978 127,752,166 133,216,876 140,534,225
Benefit--High ($)........................................ 81,912,532 150,957,166 158,400,547 165,176,269 174,249,087
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Estimates may not total due to rounding.
We next examine the savings to aliens who need a replacement Form
I-94. Prior to the implementation of the interim final rule, if aliens
lost the bottom portion of their Form I-94, they could file Form I-102,
Application for Replacement/Initial Nonimmigrant Arrival-Departure
Document, with USCIS to request a replacement. The form has a Paperwork
Reduction Act burden of 25 minutes per response and a fee of $330. As
stated earlier, prior to the implementation of the interim final rule,
17,700 Forms I-102 were filed annually. In 2013, 13,715 Forms I-102
were filed and USCIS expects 6,782 to be filed each year starting in
2014, a reduction of 10,918 each year due to this rule. Now these
travelers are able to access their electronic Form I-94, which saves
these individuals 25 minutes and $330.\32\ We calculate the value of
this time savings using USCIS's hourly wage estimate for Form I-102
filers of $30.74.\33\ Exhibit 8 shows the time and fee cost savings for
those who would otherwise have needed to file a Form I-102 from 2013 to
2017. As shown, in 2013 the value of this time and fee savings was $1.4
million.
---------------------------------------------------------------------------
\32\ As discussed in the costs section, we estimate a 4 minute
time burden for travelers who need to access their electronic Form
I-94. See the cost section for a complete discussion of the costs of
accessing the Web site as well as the cost to travel to a location
where they can access the Web site, where necessary.
\33\ USCIS estimates are based on U.S. Bureau of Labor data for
occupational employment statistics. The latest supporting statement
for the I-102 is available at: http://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=201206-1615-003. Accessed June 4, 2014. This
supporting statement uses a wage estimate of $30.74.
Exhibit 8--I-102 Cost Savings *
--------------------------------------------------------------------------------------------------------------------------------------------------------
2013 2014 2015 2016 2017
--------------------------------------------------------------------------------------------------------------------------------------------------------
I-102 Reduction.......................................... 3,985 10,918 10,918 10,918 10,918
Time Burden.............................................. 25 25 25 25 25
USCIS hourly wage ($).................................... 30.44 30.44 30.44 30.44 30.44
Time Savings ($)......................................... 51,041 139,841 139,841 139,841 139,841
Fee Savings ($).......................................... 1,315,050 3,602,940 3,602,940 3,602,940 3,602,940
----------------------------------------------------------------------------------------------
Total Savings ($).................................... 1,366,091 3,742,781 3,742,781 3,742,781 3,742,781
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Estimates may not total due to rounding. Undiscounted dollars.
Following the enactment of the interim final rule, travelers could
only access their current electronic Form I-94 until they departed the
United States. In response to public comments on the interim final
rule, CBP has enhanced the Web site to allow travelers to access their
most recent Form I-94 for 5 years from the date of issuance. In
addition, the Web site now provides foreign travelers with a 5 year
record of their travel history. Doing so has reduced Freedom of
Information Act requests received by CBP by approximately 2 percent.
Accessing the information via the Web site can be done within
minutes rather than the months it can take to receive information from
a FOIA request, which is a benefit to the traveler. In addition, this
saves the CBP FOIA office time, which it can spend processing other
FOIA requests. CBP is exploring whether it can expand the Web site to
include travel history dating back farther than 5 years. CBP is also
considering whether the Web site can be set up to include travel
history for non-Form I-94 users such as U.S. citizens and legal
permanent residents. CBP estimates that expanding the travel history
past 5 years has reduced the number of FOIA requests received by
approximately 6 percent and expanding it to include travel history for
U.S. citizens and legal permanent residents will reduce FOIA requests
by an additional 20 percent.
In summary, CBP, carriers, and aliens accrue benefits as a result
of this rule. CBP saves on contract and printing costs as well as FOIA
processing burdens. Carriers save on printing costs. All aliens save
the 8 minute time burden for filling out the paper Form I-94 and
certain aliens who lose their Form I-94 save the $330 fee and 25 minute
time burden for filling out the Form I-102; and, certain aliens save
processing time from the elimination of the FOIA process. Because we
only expect one percent of B-1/B-2 travelers to use the Web site to
access their electronic Form I-94, the benefits associated with the
[[Page 91664]]
Form I-102 accrue primarily to non-B-1/B-2 travelers. Using the primary
estimate for a traveler's value of time, the time burden savings for
all travelers is $5.89 per traveler. In addition, those non-B-1/B-2
travelers who no longer need to use a Form I-102 would achieve an
additional time and fee savings of $343.81 per traveler. Exhibit 9
summarizes the benefits of air and sea automation to each party. As
shown, total benefits for this rule ranged from $72.9 million to $100.2
million in 2013. In our primary estimate, the benefits of this rule
were $84.3 million in 2013.
Exhibit 9--Benefit Summary
[Undiscounted 2012$] *
----------------------------------------------------------------------------------------------------------------
2013 2014 2015 2016 2017
----------------------------------------------------------------------------------------------------------------
CBP Benefits:
CBP Contract Savings........ 15,400,000 15,400,000 15,400,000 15,400,000 15,400,000
CBP Printing Savings........ 153,360 153,360 153,360 153,360 153,360
Total CBP Benefits.............. 15,553,360 15,553,360 15,553,360 15,553,360 15,553,360
Carrier Printing Savings........ 1,344,450 1,344,450 1,344,450 1,344,450 1,344,450
Traveler Benefits:
Form I-94 Time Savings--Low. 54,608,355 100,638,110 105,600,365 110,117,513 116,166,058
Form I-94 Time Savings-- 66,063,556 121,748,978 127,752,166 133,216,876 140,534,225
Primary....................
I-94 Time Savings--High..... 81,912,532 150,957,166 158,400,547 165,176,269 174,249,087
Form I-102 Time Savings..... 51,041 139,841 139,841 139,841 139,841
Form I-102 Fee Savings...... 1,315,050 3,602,940 3,602,940 3,602,940 3,602,940
Total Traveler Benefits--Low.... 55,974,446 104,380,892 109,343,146 113,860,294 119,908,839
Total Traveler Benefits--Primary 67,429,647 125,491,760 131,494,947 136,959,658 144,277,007
Total Traveler Benefits--High... 83,278,624 154,699,947 162,143,329 168,919,051 177,991,868
Grand Total Benefits--Low....... 72,872,256 121,278,702 126,240,956 130,758,104 136,806,649
Grand Total Benefits--Primary... 84,327,457 142,389,570 148,392,757 153,857,468 161,174,817
Grand Total Benefits--High...... 100,176,434 171,597,757 179,041,139 185,816,861 194,889,678
----------------------------------------------------------------------------------------------------------------
* Estimates may not total due to rounding.
b. Benefits From Electronic Implementation at the Land Border
Under the new voluntary electronic I-94 submission process at the
land border, once the traveler arrives at the port, he/she will go
through secondary inspection, as they do under the paper process, where
the CBP officer will locate the traveler's information through a
document swipe in CBP's database. This will indicate that the fee was
paid and pre-populate the data fields from the document swipe and the
information provided by the traveler in the Web site. Once the CBP
officer has determined the traveler's admissibility, the CBP officer
will print out a paper I-94 to give to the traveler. The traveler will
already have paid the fee, so once he/she has cleared the secondary
inspection he/she will be able to enter the United States.
This voluntary process is purely beneficial to any traveler who
opts into it. By paying the fee online, the traveler avoids an average
20 minute wait to do so at the port of entry. Using our primary
estimate for the value of travel time of $44.15, the value of this time
savings is $14.72 per traveler. As this process is just a few months
old, CBP does not have data on how many travelers will opt to answer
the Form I-94 questions and pay the fee online. CBP is engaging in
public outreach to notify the public of the option, but only travelers
who have access to a computer or other device with internet
connectivity will be able to participate. In 2015, nearly 7 million
travelers arrived in the United States at the land border using a Form
I-94. CBP does not yet have sufficient data on how many travelers will
opt for the online fee payment option. For the purposes of this
analysis, CBP estimates that 5 percent of these travelers, or
approximately 350,000, will opt for the advance I-94 information
submission and payment process, for a total savings to travelers of
$5,152,000. To the extent that the reduction in CBP officer time
inputting data and processing fees results in shorter wait times,
travelers would have additional time savings benefits.
This process would save CBP 8 minutes of data input time and 2
minutes of fee processing time, a total of 10 minutes of CBP officer
time per traveler. Based on the estimate that 350,000 travelers will
opt for the advance I-94 information submission and payment, and using
the fully loaded wage rate of a CBP Officer of $85.47 per hour,\34\ we
estimate that this process would save CBP officers 58,333 hours and
$4,985,750. We note that this is a time savings that is monetized for
analytical purposes and not a budgetary savings. This time savings
could be spent on other priorities including reducing wait times. In
addition, this rule would reduce the amount of cash being handled at
ports of entry, which would simplify port of entry oversight and
auditing.
---------------------------------------------------------------------------
\34\ Source: CBP Position Model.
---------------------------------------------------------------------------
c. Aggregate Benefits
Exhibit 10 shows the total benefits of the rule--both the benefits
of air and sea automation and the land border implementation.
Exhibit 10--Benefit Summary
[Undiscounted 2012$] *
----------------------------------------------------------------------------------------------------------------
2013 2014 2015 2016 2017
----------------------------------------------------------------------------------------------------------------
CBP Benefits:
CBP Contract Savings........ 15,400,000 15,400,000 15,400,000 15,400,000 15,400,000
CBP Printing Savings........ 153,360 153,360 153,360 153,360 153,360
[[Page 91665]]
CBP Time Savings............ 0 0 0 1,246,438 4,985,750
Total CBP Benefits.............. 15,553,360 15,553,360 15,553,360 16,799,798 20,539,110
Carrier Printing Savings........ 1,344,450 1,344,450 1,344,450 1,344,450 1,344,450
Traveler Benefits:
Form I-94 Time Savings--Low. 54,608,355 100,638,110 105,600,365 110,117,513 116,166,058
Form I-94 Time Savings-- 66,063,556 121,748,978 127,752,166 133,216,876 140,534,225
Primary....................
I-94 Time Savings--High..... 81,912,532 150,957,166 158,400,547 165,176,269 174,249,087
Form I-102 Time Savings..... 51,041 139,841 139,841 139,841 139,841
Form I-102 Fee Savings...... 1,315,050 3,602,940 3,602,940 3,602,940 3,602,940
Land Process Time Savings... 0 0 0 1,288,000 5,152,000
Total Traveler Benefits--Low.... 55,974,446 104,380,892 109,343,146 115,148,294 125,060,839
Total Traveler Benefits--Primary 67,429,647 125,491,760 131,494,947 138,247,658 149,429,007
Total Traveler Benefits--High... 83,278,624 154,699,947 162,143,329 170,207,051 183,143,868
Grand Total Benefits--Low....... 72,872,256 121,278,702 126,240,956 133,292,542 146,944,399
Grand Total Benefits--Primary... 84,327,457 142,389,570 148,392,757 156,391,905 171,312,567
Grand Total Benefits--High...... 100,176,434 171,597,757 179,041,139 188,351,298 205,027,428
----------------------------------------------------------------------------------------------------------------
* Estimates may not total due to rounding.
5. Net Benefits
Exhibit 11 compares the costs of this rule to the benefits, both in
total and for each party affected. As shown, in 2013, CBP had a net
benefit of $15.5 million, carriers had a net benefit of $1.3 million,
and travelers had a net benefit of between $41.1 and $65.9 million. In
our primary analysis, the net benefit to travelers was $51.3 million in
2013. Total 2013 net benefits ranged from $57.9 million to $82.7
million. In our primary analysis, the total net benefits were $68.3
million in 2013.
Exhibit 11--Net Benefits
[Undiscounted 2012$] *
--------------------------------------------------------------------------------------------------------------------------------------------------------
2012 2013 2014 2015 2016 2017
--------------------------------------------------------------------------------------------------------------------------------------------------------
CBP..................................................... -1,321,000 15,461,360 15,461,360 15,461,360 16,167,798 20,447,110
Carriers................................................ 0 1,344,450 1,344,450 1,344,450 1,344,450 1,344,450
Travelers--Low.......................................... 0 41,109,614 76,986,391 80,597,880 85,173,424 93,439,507
Travelers--Primary...................................... 0 51,503,032 96,140,493 100,696,430 106,131,707 115,548,989
Travelers--High......................................... 0 65,882,967 122,641,373 128,504,014 135,128,784 146,138,820
Grand Total--Low........................................ -1,321,000 57,915,424 93,792,201 97,403,690 102,685,671 115,231,067
Grand Total--Primary.................................... -1,321,000 68,308,842 112,946,303 117,502,240 123,643,955 137,340,549
Grand Total--High....................................... -1,321,000 82,688,777 139,447,183 145,309,824 152,641,032 167,930,380
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Estimates may not total due to rounding.
Exhibits 12 and 13 present the present value net benefits of this
rule, discounted at the 3 and 7 percent discount rates. Exhibit 14
presents annualized net benefits at the 3 and 7 percent discount rates.
Total annualized net benefits range from $73.4 million to $111.8
million. In the primary analysis, annualized net benefits range from
$88.1 million to $90.9 million, depending on the discount rate used.
Exhibit 12--Net Benefits Discounted at a 3 Percent Rate
[2012 $] *
--------------------------------------------------------------------------------------------------------------------------------------------------------
2012 2013 2014 2015 2016 2017
--------------------------------------------------------------------------------------------------------------------------------------------------------
CBP..................................................... -1,321,000 15,011,029 14,573,815 14,149,335 14,364,879 17,637,857
Carriers................................................ 0 1,305,291 1,267,273 1,230,362 1,194,526 1,159,734
Travelers--Low.......................................... 0 39,912,246 72,567,057 73,758,478 75,675,484 80,601,739
Travelers--Primary...................................... 0 50,002,944 90,621,635 92,151,498 94,296,647 99,673,573
Travelers--High......................................... 0 63,964,046 115,601,256 117,599,376 120,060,175 126,060,630
Grand Total--Low........................................ -1,321,000 56,228,567 88,408,145 89,138,174 91,234,889 99,399,330
Grand Total--Primary.................................... -1,321,000 66,319,264 106,462,723 107,531,195 109,856,052 118,471,164
Grand Total--High....................................... -1,321,000 80,280,366 131,442,344 132,979,073 135,619,580 144,858,221
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Estimates may not total due to rounding.
[[Page 91666]]
Exhibit 13--Net Benefits Discounted at a 7 Percent Rate
[2012 $] *
--------------------------------------------------------------------------------------------------------------------------------------------------------
2012 2013 2014 2015 2016 2017
--------------------------------------------------------------------------------------------------------------------------------------------------------
CBP..................................................... -1,321,000 14,449,869 13,504,551 12,621,075 12,334,335 14,578,507
Carriers................................................ 0 1,256,495 1,174,295 1,097,472 1,025,674 958,574
Travelers--Low.......................................... 0 38,420,200 67,242,895 65,791,878 64,978,397 66,621,077
Travelers--Primary...................................... 0 48,133,675 83,972,830 82,198,282 80,967,371 82,384,832
Travelers--High......................................... 0 61,572,866 107,119,725 104,897,553 103,089,103 104,194,959
Grand Total--Low........................................ -1,321,000 54,126,564 81,921,741 79,510,425 78,338,407 82,158,158
Grand Total--Primary.................................... -1,321,000 63,840,039 98,651,675 95,916,829 94,327,381 97,921,913
Grand Total--High....................................... -1,321,000 77,279,231 121,798,570 118,616,100 116,449,112 119,732,040
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Estimates may not total due to rounding.
Exhibit 14--Annualized Net Benefits Discounted at 3 Percent and 7
Percent
[2012 $] *
------------------------------------------------------------------------
3 Percent 7 Percent
------------------------------------------------------------------------
CBP..................................... 13,336,885 12,973,485
Carriers................................ 1,103,496 1,080,843
Travelers--Low.......................... 61,385,839 59,420,140
Travelers--Primary...................... 76,481,844 74,047,524
Travelers--High......................... 97,368,099 94,285,410
Grand Total--Low........................ 75,826,220 73,474,468
Grand Total--Primary.................... 90,922,226 88,101,852
Grand Total--High....................... 111,808,481 108,339,738
------------------------------------------------------------------------
* Estimates may not total due to rounding.
While this rule has a large net benefit to travelers as a whole, it
is important to note that the net benefits do not accrue uniformly
across all travelers. We next examine the effect of this rule on each
type of traveler. Exhibit 14 summarizes the costs and benefits per
traveler for each class of alien discussed in this analysis. With this
rule, no traveler needs to fill out the paper Form I-94 while en route
to the United States, saving all travelers 8 minutes, an estimated
$5.89 per traveler. The 1 percent of B-1/B-2 travelers and 75 percent
of other foreign travelers who need to access the Web site experience a
cost of $2.95 per person because of the 4 minute time burden to access
the Web site. In addition, those who need to print their Form I-94
incur a $0.25 printing cost. Those temporary workers and aliens in the
``Other/Unknown'' category who need to travel to access the Web site
and print their Form I-94 have an additional travel cost. They need to
travel an estimated 20 miles and 60 minutes round-trip to reach a
location with internet access, at a cost of $20.89 per traveler. We
reiterate that those with obstacles to accessing their electronic Forms
I-94 may request a paper Form I-94 at secondary inspection stations at
ports of entry or at CBP DIS. In addition, any travelers who would
otherwise need to file a Form I-102 and pay the $330 fee to obtain a
replacement Form I-94 receive an additional benefit of $342.81 as a
result of this rule. Travelers who opt for the electronic filing option
receive an additional benefit of $14.72.
Exhibit 15--Annual Effect of Rule by Class of Alien
[Undiscounted 2012$] *
----------------------------------------------------------------------------------------------------------------
Cost of time
to access &
8 minute time cost to print Travel costs Net impact **
cost savings electronic
Form I-94
----------------------------------------------------------------------------------------------------------------
Travelers who do not Access Website............. 5.89 0 0 5.89
1 percent of Tourists and Business Travelers (B- 5.89 -3.19 0 2.70
1/B-2).........................................
75 percent of Students.......................... 5.89 -3.19 0 2.70
75 percent of Temporary workers................. 5.89 -3.19 -20.89 -18.21
75 percent of Other/Unknown..................... 5.89 -3.19 -20.89 -18.21
75 percent of Diplomats......................... 5.89 -3.19 0 2.70
----------------------------------------------------------------------------------------------------------------
* Estimates may not total due to rounding.
** In addition to this net impact, a small number of travelers experience savings resulting from no longer
needing to file a Form I-102. The primary estimate of Form I-102 cost savings to travelers is $342.81 per
traveler. We do not include the Form I-102 cost savings in the net impact column of Exhibit 14 because few
travelers benefit from this compared to the overall population of travelers impacted by the rule. Based on
data from USCIS, we estimate that 10,918 Form I-102s per year are no longer need to be filed as a result of
this rule. This is far less than one percent of the annual population of travelers affected by the rule
(10,918 Form I-102s / 20,815,527 travelers in 2014 <1%).
Annualized costs and benefits to all entities affected by the rule,
whether domestic or foreign, are presented in the following accounting
statement.
[[Page 91667]]
Accounting Statement: Classification of Expenditures for U.S. Entities,
2012-2017
[2012 $]
------------------------------------------------------------------------
3% Discount rate 7% Discount rate
------------------------------------------------------------------------
U.S. Costs:
Annualized monetized costs.. $23.5 million..... $21.0 million.
Annualized quantified, but None.............. None.
non-monetized costs.
Qualitative (non-quantified) None.............. None.
costs.
U.S. Benefits:
Annualized monetized $104.1 million.... $101.1 million.
benefits.
Annualized quantified, but None.............. None.
non-monetized benefits.
Qualitative (non-quantified) Reduced primary Reduced primary
benefits. inspection inspection
processing times. processing times.
------------------------------------------------------------------------
We estimate annualized costs to all entities affected by this rule
to range from $21.0 million to $23.5 million. Monetized benefits of
this rule range from $101.9 million to $104.1 million to all entities.
Non-quantified benefits of this rule include the reduced processing
time that could result because of the automation of the Form I-94.
Annualized costs and benefits to U.S. entities are presented in the
following accounting statement, as required by OMB Circular A-4.
Accounting Statement: Classification of Expenditures for U.S. Entities,
2012-2017
[2012 $]
------------------------------------------------------------------------
3% Discount rate 7% Discount rate
------------------------------------------------------------------------
U.S. Costs:
Annualized monetized costs.. $0.454 million.... $0.466 million.
Annualized quantified, but None.............. None.
non-monetized costs.
Qualitative (non-quantified) None.............. None.
costs.
U.S. Benefits:
Annualized monetized $13.5 million..... $13.3 million.
benefits.
Annualized quantified, but None.............. None.
non-monetized benefits.
Qualitative (non-quantified) Reduced primary Reduced primary
benefits. inspection inspection
processing times. processing times.
------------------------------------------------------------------------
We estimate annualized costs to U.S. entities as a result of this
rule to range from $0.454 million to $0.466 million. These are CBP's
costs for automating the electronic Form I-94 and developing the Web
site travelers use to access their electronic Form I-94. Monetized
benefits of this rule of $13.3 million to $13.5 million to U.S.
entities (CBP and carriers) represent reduced Form I-94 printing and
storage costs, reduced data entry contract costs, and reduced time
costs for CBP officers. Non-quantified benefits of this rule include
the reduced processing time that could result because of the automation
of the Form I-94.
6. Regulatory Alternatives
In the analysis for the interim final rule, we considered two
alternatives to the rule: (1) Eliminating the paper Form I-94 in the
air and sea environments entirely and (2) providing the paper Form I-94
to all travelers who are not B-1/B-2 travelers. As a result of public
comments on the interim final rule, we add a third alternative to our
analysis: (3) Providing kiosks at major ports of entry where travelers
have the option to print their electronic Form I-94 prior to leaving
the airport.
Under alternative one, if CBP were to eliminate the paper Form I-94
entirely in the air and sea environments, there are certain classes of
vulnerable aliens who would be harmed. Under the rule, asylees and
certain parolees are provided a paper Form I-94. These aliens have an
immediate need for the Form I-94 and cannot wait to access their
electronic Form I-94 from the Web site. These aliens represent a very
small portion of overall international travel and providing them with a
paper Form I-94 and entering the information into CBP data systems is
not a significant cost to CBP. In addition, under this rule, CBP has
continued to make the paper Form I-94 available to those travelers who
request it at secondary inspection stations and at DIS. CBP provides
this flexibility as a way to minimize the effect on those who face
obstacles to accessing their electronic Form I-94.
CBP does not have statistics on the number of travelers who request
a paper Form I-94. Anecdotal evidence suggests that few, if any,
travelers go to a secondary inspection station or a DIS for the purpose
of obtaining a paper Form I-94. This may be because the travelers who
need a paper Form I-94 do not know they need it when at the airport or
because they find it more efficient to access the I-94 Web site and
print the form than to go to secondary inspection or a DIS. Requesting
a paper Form I-94 at one of these locations can take longer than the 4
minutes we estimate it takes to access the I-94 Web site and the 60
minutes in travel time we estimate that those with obstacles to
internet access spend to obtain their Form I-94. As few aliens request
a paper Form I-94 at secondary inspection stations or DIS, the cost to
CBP for printing and data entry for these forms is minimal. Eliminating
the paper Form I-94 option for asylees, certain parolees, and those
travelers who request one would not result in a significant cost
savings to CBP and would burden travelers who have an immediate need
for an electronic Form I-94 or who face obstacles to accessing their
electronic Form I-94.
Under alternative two, all non-B-1/B-2 travelers required to
complete a Form I-94 would receive and complete the
[[Page 91668]]
paper Form I-94 during their inspection when they arrive in the United
States. The electronic Form I-94 would still be automatically created
during inspection, but the CBP officer would need to verify that the
information appearing on the form matches the information in CBP's data
systems. In addition, CBP would need to write the Form I-94 number on
each paper Form I-94 so that their paper form matches the electronic
record. As noted earlier, over four million, or 23.7 percent, aliens
were non-B-1/B-2 travelers in 2012. Filling out and processing this
many paper Forms I-94 at airports and seaports would increase
processing times considerably and it would only provide at best small
savings to the individual traveler. As noted in the ``Net Benefits''
section, the net cost of this rule to the 75 percent of temporary
workers and those in the ``Other/Unknown'' category of aliens who need
a printed Form I-94 is only $18.20 per traveler. Conversely, this rule
provides net benefits to travelers who do not need a printed Form I-94
and those arriving as students or diplomats.
CBP received several public comments related to the obstacles
travelers face in accessing a computer to print their electronic Form
I-94. Commenters said that many travelers need their Form I-94 very
soon after arrival, sometimes within hours of arrival, and they may
have difficulty learning that public libraries offer internet access,
where public libraries are, and how to travel to a public library. An
employer submitted a comment stating that company privacy standards
prevent it from allowing new hires to access the internet in order to
access the I-94 Web site. Separately, commenters pointed out problems
with the accuracy of the Form I-94 information that prevent them from
logging into the Web site. Others noted that there is no way to check
their Form I-94 for accuracy at time of entry into the United States.
One commenter suggested a solution to these problems: That CBP provide
kiosks at the airports where foreign nationals can inspect and print
their electronic Form I-94. CBP considered this suggestion and made it
an additional alternative to the rule.
Under alternative three, we consider the costs and benefits of
placing kiosks at the busiest U.S. airports and seaports to allow
travelers to inspect and print their electronic Form I-94 before
leaving the port of entry. For the purposes of this alternative
analysis, we examine the impact of placing dedicated kiosks at the
busiest 20 airports and the busiest 20 seaports. These locations
account for 92 percent of international air travelers and 95 percent of
international sea travelers.\35\
---------------------------------------------------------------------------
\35\ CBP's Operations Management Reporting database. Accessed
June 30, 2014.
---------------------------------------------------------------------------
CBP uses kiosks at many major airports for the Global Entry
program. These kiosks are dedicated for use by members of that program,
but similar kiosks could be purchased to allow travelers to access the
I-94 Web site and print their Form I-94. According to CBP's Office of
Field Operations, kiosks would cost $20,000 each and have an annual
operations and maintenance cost of $8,732. Placing a kiosk at each of
the busiest 20 airports and the busiest 20 seaports would cost $800,000
the first year and $349,280 in each subsequent years.
The benefit of placing kiosks at the busiest airports and seaports
depends on the number of people who would use the kiosks if they were
available. CBP has no data on the extent to which travelers would
choose to use the kiosks if they were available to them. As stated
previously, few travelers request paper Forms I-94 upon their arrival
in the United States, but that might be because doing so means going to
the secondary inspection station, which can take a considerable amount
of time. We also do not know how many people find errors on their
electronic Forms I-94 that they could correct immediately if they were
already at an airport or seaport rather than visiting a Deferred
Inspection Site at a later time, though data suggests this could be a
large number. In 2013, according to an analysis of data provided by
CBP's Office of Field Operations, about 14 percent of unique visitors
to the I-94 Web site were not able to locate their electronic Form I-
94. This may have been because of erroneous data on their Form I-94,
but it could also be because they did not actually have an Form I-94 on
the Web site (for example, if they are a U.S. citizen or if they
already departed the country prior to accessing the Web site).
Accessing the Web site via a kiosk would take 4 minutes of a
traveler's time, the same amount of time as via a personal computer.
Therefore, we do not believe that those who do not currently access
their electronic Forms I-94 (as stated earlier, this includes the 99
percent of B-1/B-2 travelers and 25 percent of non-B-1/B-2 travelers)
would now access them via the kiosks. Similarly, those with easy
computer access would experience no time savings by accessing their
Form I-94 via the kiosk instead of via the Web site, so we do not
include their benefits in the analysis. The travelers who would benefit
from the availability of kiosks to access their electronic Form I-94
are those who would otherwise need to travel to access the internet.
These travelers would no longer incur the opportunity cost of traveling
60 minutes or the mileage cost of driving 20 miles roundtrip. In our
analysis above, we have estimated that 33 percent of travelers in the
``Temporary Workers'' and ``Other/Unknown'' categories of travelers
would need to travel to access the internet. In 2014 (the first full
year the interim final rule is in effect) this represents approximately
819,000 travelers. Since we do not know how many of these travelers
would choose to use the kiosks, we present the costs and benefits
(using the primary estimates for travel and mileage costs) that would
accrue to these travelers under a wide range of assumptions of their
kiosk use. The benefits reflect the total travel costs, including
travel time and mileage, derived earlier in the analysis (See Exhibit
5). We present the reduction in travel costs (which is a benefit) that
would result if different percentages of travelers use a kiosk rather
than travel to a location where they can access the internet. The
results of our analysis are presented in Exhibit 16.
Exhibit 16--Comparison of Kiosk Costs and Potential Benefits
[Undiscounted 2012$] *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Kiosk use rate
* (%) 2013 2014 2015 2016 2017
--------------------------------------------------------------------------------------------------------------------------------------------------------
Benefits................................................ 100 9,283,113 17,107,912 17,951,467 18,719,357 19,747,575
75 6,962,334 12,830,934 13,463,600 14,039,517 14,810,681
50 4,641,556 8,553,956 8,975,733 9,359,678 9,873,788
[[Page 91669]]
25 2,320,778 4,276,978 4,487,867 4,679,839 4,936,894
10 928,311 1,710,791 1,795,147 1,871,936 1,974,758
5 464,156 855,396 897,573 935,968 987,379
1 92,831 171,079 179,515 187,194 197,476
-----------------------------------------------------------------------------------------------
CBP Costs............................................... .............. .............. 800,000 329,280 329,280 329,280
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Note that Kiosk Use Rate represents the percentage of those who would otherwise need to travel to access a computer, not total Form I-94 travelers.
Only approximately 4 percent of total Form I-94 travelers need to travel to access the Web site (12 percent of travelers in the ``Temporary Worker''
or ``Other/Unknown'' categories times 33 percent of those categories who would need to travel to access the internet = 4 percent).
As shown in Exhibit 15, kiosks have a large potential for benefits
if they are used by a substantial number of travelers. If 100 percent
of travelers who would otherwise need to travel to access a computer
used the kiosks instead, benefits would outpace the costs of the kiosks
by a margin of $17.2 million to $0.8 million in 2014 and by more in
later years. Even if only 5 percent of travelers who would otherwise
need to travel to access a computer use the kiosks, benefits would
exceed costs. However, based on CBP's experience with travelers
requesting paper Forms I-94 at the ports of entry, CBP does not believe
enough travelers would use the kiosks to merit the expense. Further,
due to budget constraints, CBP does not have funds to acquire these
kiosks at this time.
The Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.), as amended
by the Small Business Regulatory Enforcement and Fairness Act of 1996,
requires an agency to prepare a regulatory flexibility analysis that
describes the effect of a proposed rule on small entities when the
agency is required to publish a general notice of proposed rulemaking.
A small entity may be a small business (defined as any independently
owned and operated business not dominant in its field that qualifies as
a small business per the Small Business Act); a small not-for-profit
organization; or a small governmental jurisdiction (locality with fewer
than 50,000 people). Since a notice of proposed rulemaking was not
necessary, a regulatory flexibility analysis was not required.
Nonetheless, DHS has considered the impact of this rule on small
entities.
This rule primarily regulates individuals and individuals are not
considered small entities. In addition, the individual travelers may
obtain a paper Form I-94 upon request, which would eliminate the
impacts of this rule for those travelers. Employers who have internet
access may choose to allow their employees to use their internet
connection to access the employee's electronic Form I-94, but they are
not required to do so and are therefore not directly regulated by this
rule. To the extent an employer chooses to assist an employee with
accessing the internet and printing a Form I-94, this impact would not
rise to being an economically significant impact under the Regulatory
Flexibility Act.
This rule also regulates air and sea carriers by eliminating the
need for them to provide the paper Form I-94 to their passengers. This
rule would impact all small carriers that transport passengers to the
United States. We therefore conclude that this rule has an impact on a
substantial number of small entities.
As stated in the economic impact analysis above, we estimate that
carriers spend $1.3 million a year printing and storing forms for their
passengers, based on 2011 passenger volumes. In 2011, 16,586,753 Forms
I-94 provided by carriers were filed at airports and seaports. Dividing
these figures, we estimate that carriers spent 8 cents per form on
printing and storage costs.
Under this rule, carriers would no longer need to print and store
the Forms I-94, thus eliminating these costs. According to a 2013 study
by the Department of Commerce's Office of Travel and Tourism
Industries,\36\ the average airline ticket price for an international
traveler traveling to the United States is $1,588. The cost to the
carrier of printing a Form I-94 is less than one hundredth of one
percent of the revenue a carrier receives from the average passenger.
We therefore do not believe that this rule has a significant economic
impact on small entities. We also note that any impact to small
carriers would be purely beneficial.
---------------------------------------------------------------------------
\36\ Department of Commerce, National Travel and Tourism Office.
``Profile of Overseas Travelers to the United States: 2013
Inbound.'' Available at http://travel.trade.gov/outreachpages/download_data_table/2013_Overseas_Visitor_Profile.pdf. Accessed July
10, 2014.
---------------------------------------------------------------------------
Privacy
CBP will ensure that all Privacy Act requirements and policies are
adhered to in the implementation of this rule, and will be updating the
Privacy Impact Assessment (PIA) for the I-94 Web site. CBP will outline
in the updated PIA how CBP will ensure compliance with Privacy Act
protections. In the updated PIA, CBP will explain the privacy risks and
mitigations CBP has implemented during this phase of the Form I-94
automation process. DHS/CBP will post the updated PIA online at: http://www.dhs.gov/privacy-documents-us-customs-and-border-protection. The
PIA that covers the earlier phase of Form I-94 automation, and
describes how CBP complies with the Privacy Act, is available at:
https://www.dhs.gov/sites/default/files/publications/privacy/PIAs/pia-cbp-16-I-94-automation-20130227.pdf.
Paperwork Reduction Act
The collection of information regarding the CBP Form I-94 (Arrival/
Departure Record) was previously reviewed and approved by OMB in
accordance with the requirements of the Paperwork Reduction Act of 1995
(44 U.S.C. 3507) under OMB Control Number 1651-0111. This OMB Control
Number also includes the Electronic System for Travel Authorization
(ESTA), ESTA fee, and Form I-94W, all of which are unaffected by this
rule. In addition, information for the electronic Form I-94 is
comprised of information already collected for APIS under approval
1651-0088. An agency may not conduct, and a person is not required to
respond to, a collection of information unless the collection of
[[Page 91670]]
information displays a valid control number assigned by OMB.
The burden hours associated with the collections of information
contained in this Final Rule were previously reviewed and approved by
OMB. The automation of the paper Form I-94 for commercial aircraft and
vessel passengers in accordance with this Final Rule results in a
reduction of 1,278,456 annual burden hours under OMB control number
1651-0111.
Also in accordance with this Final Rule, the electronic Form I-94
is available to aliens on a secure Web site. Passengers may log into
the Web site using 7 pieces of basic identifying information that is
either known to the traveler (their first name, last name and date of
birth) or readily available on their passport (passport number, country
of issuance, date of entry, and class of admission). The estimated
annual burden associated with this Web site, is 254,680 hours under OMB
control number 1651-0111.
The automation of the paper Form I-94 for commercial aircraft and
vessel passengers in accordance with this Final Rule results in an
estimated reduction of 10,918 Forms I-102, Application for Replacement/
Initial Nonimmigrant Arrival-Departure Document, filed, and an
estimated reduction of 4,541.89 burden hours under OMB control number
1615-0079.
Exhibit 16 summarizes the difference in the burden for the previous
process and the process under this rule. As OMB Control Number 1651-
0111 includes ESTA and Form I-94W, we include those burden hours for
informational purposes. We note that these burden hours are unaffected
by this rule.
Exhibit 16--PRA Burden Effects of the Rule
----------------------------------------------------------------------------------------------------------------
Collection Respondents Burden Hours
----------------------------------------------------------------------------------------------------------------
Pre-IFR.................................... I-94......................... 14,000,000 1,862,000
Website...................... 0 0
I-102........................ 17,700 7,363
ESTA......................... 19,140,000 4,785,000
I-94W........................ 100,000 333,147
Final Rule................................. I-94......................... 4,387,550 583,544
Website...................... 3,858,782 254,680
I-102........................ 6,782 2,821
ESTA......................... 19,140,000 4,785,000
I-94W........................ 100,000 13,333
Difference................................. I-94......................... -9,612,450 -1,278,456
Website...................... 3,858,782 254,680
I-102........................ -10,918 -4,542
ESTA......................... 0 0
I-94W........................ 0 0
----------------------------------------------------------------------------------------------------------------
Amendments to the Regulations
For the reasons set forth above, the interim final rule amending 8
CFR parts 1, 210, 212, 214, 215, 231, 235, 245, 245a, 247, 253, 264,
274a, and 286, published at 78 FR 18457 on March 27, 2013, is adopted
as a final rule without change.
Jeh Charles Johnson,
Secretary.
[FR Doc. 2016-30459 Filed 12-16-16; 8:45 am]
BILLING CODE 9111-14-P