June 05, 2017
Immigration Law Alert | International Travel Series
Immigration Law Alert | International Travel Series
Foreign nationals should review their U.S. immigration documentation prior to departing the U.S. to ensure that they will be able to re-enter the U.S. without any difficulties or delays. Need a checklist? We’ve got one.
Prior to departing the U.S., foreign nationals present in the U.S. in lawful non-immigrant visa status should review their U.S. immigration documentation to ensure that they have everything required for return admission to the U.S. If not, the foreign national should make the necessary plans to obtain this documentation prior to the trip abroad.
Please note that special rules apply to foreign nationals in F-1, J-1 or M-1 status, and foreign nationals in these statuses, should consult with the Designated School Officer/Designated Responsible Officer prior to international travel.
All foreign nationals need to present a passport and valid, unexpired non-immigrant visa stamp (with certain exceptions for visa waiver countries, automatic visa revalidation and Canadian nationals) for purposes of return admission/entry to the U.S. A foreign national’s circumstances will dictate the additional documentation that he or she will need to present at the U.S. border.
If an extension of non-immigrant status is pending (including an extension filed as part of an H-1B change of employer petition), the foreign national in most cases is not precluded from traveling internationally, but should return to the U.S. during the validity period of their current I-797 Approval Notice. In the event the U.S. Customs and Border Protection (CBP) Officer asks about the upcoming expiration date, the foreign national should carry a copy of the extension receipt.
If the foreign national is seeking a change of status from one non-immigrant status to another non-immigrant status, he/she will not be permitted to depart the U.S. while the change of status is pending. If a foreign national must travel prior to the approval of the change of status, the assistance of an immigration professional should be sought to discuss options.
If the foreign national also has a pending application to adjust status to lawful permanent resident (i.e., has filed an I-485 Adjustment of Status application), then the foreign national in a non-immigrant status other than L-1 or H-1B (or dependent status L-2 or H-4) may travel internationally only if he/she has been issued advance parole authorizing such travel and must present the advance parole authorization upon return entry. A non-immigrant in L-1 or H-1B status, even if granted advance parole, may continue to travel internationally and return to the U.S. using his/her valid L-1/H-1B (or L-2/H-4) visa stamp so long as he/she (1) held valid L-1 or H-1B status upon departure and (2) is returning to resume employment with the same employer. Similar rules also apply to those in K-3, K-4 or V status.
After returning to the U.S., all foreign nationals should retrieve their Form I-94 from the CBP website and confirm they were admitted in the proper status and provided with the correct expiration date. Regardless of the visa validity or I-797 Approval Notice expiration, a foreign national’s most recent Form I-94 governs their status in the U.S., and mistakes on the Form I-94 should be corrected immediately.
As a general rule, foreign nationals should plan on applying for their non-immigrant visa stamp at a U.S. Consulate in their home country, although in some cases, the U.S. Consulates in Canada or another jurisdiction may be acceptable.
Foreign nationals should be sure to review the procedures and documentation required for their chosen U.S. Consulate, as every U.S. Consulate may have slightly different requirements. In general, however, all U.S. Consulates will require the following:
The State Department, along with other U.S. government agencies, is currently reviewing the visa eligibility requirements as they relate to U.S. security. Accordingly, there is a risk that any visa application will be subject to additional security or administrative screening at a U.S. Consulate. If a visa application is subject to additional screening, the issuance of the visa stamp may be delayed by several weeks or, in some instances, several months, during which the foreign national would have to remain outside of the U.S. For more information, see our alert on visa issuance delays.
While the March 6, 2017, Executive Order suspending travel to the U.S. from six countries (Sudan, Syria, Iran, Libya, Somalia and Yemen) has been blocked by a federal court, nationals from impacted countries should take note of additional screening and possible visa issuance delays prior to planning international travel.
The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.
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