Domestic Air Travel and Increased ICE Enforcement
The New York Times recently reported that U.S. Immigration and Customs Enforcement (“ICE”) has been arresting certain foreign nationals traveling on domestic flights through U.S. airports, including individuals with outstanding removal orders and individuals whom the government considers to have overstayed their authorized period of stay. According to the reporting, ICE has been receiving traveler information from the Transportation Security Administration (“TSA”), with ICE agents appearing at airports in civilian clothing and making arrests at check-in counters and arrival gates.
Individuals who are currently in removal proceedings or who have been ordered removed should exercise extreme caution and, at this time, avoid domestic air travel. If you are unsure whether you have an outstanding removal order, you can check your case information using your Alien Registration Number (A-Number) through the Department of Justice’s EOIR Automated Case Information System.
Of particular concern are reports involving individuals who have remained in the United States beyond the expiration of their initial period of authorized stay but who have pending applications for certain forms of immigration relief, such as asylum or adjustment of status based on marriage to a U.S. citizen. Although a pending application may permit an individual to remain in the United States while the application is adjudicated, these reports suggest that domestic air travel may nevertheless carry increased risk for individuals whose underlying period of authorized stay has expired.
How to Determine Your Authorized Period of Stay
It is important to understand the difference between a visa and a person’s authorized period of stay in the United States.
For most nonimmigrants, the Form I-94 issued by U.S. Customs and Border Protection (“CBP”) upon admission determines the period of authorized stay. If U.S. Citizenship and Immigration Services (“USCIS”) subsequently approves an extension or change of status, a new Form I-94 may appear at the bottom of the Form I-797 approval notice.
The visa stamp in a traveler’s passport generally does not determine how long that person is authorized to remain in the United States. A visa is principally a travel document used to seek admission to the United States; the I-94 generally controls the period of authorized stay after admission.
Pending Extensions or Changes of Status
Individuals who timely filed applications or petitions to extend or change their nonimmigrant status—including individuals in H-1B, O-1, or TN status—are in a different position from individuals who simply remained in the United States after their authorized stay expired without taking further action. However, given the evolving enforcement environment, we recommend consulting with immigration counsel before traveling domestically if your most recent I-94 has expired and you are relying on a pending, timely filed extension or change-of-status application.
Travel may present additional concerns in areas where immigration enforcement activity is particularly aggressive, including parts of Alabama, Florida, and Texas.
What You Should Do
Before traveling domestically by air, individuals with any uncertainty about their immigration status should review their most recent I-94, USCIS approval and receipt notices, and any immigration court history. Those with a prior removal order, pending removal proceedings, an expired I-94, or another potentially complicated immigration history should consider speaking with immigration counsel before traveling.
We understand that these developments are extremely stressful and that the enforcement environment is changing quickly. We are monitoring these reports closely and will provide additional updates as there is greater clarity regarding the scope and implementation of ICE’s latest enforcement measures.
This alert is for informational purposes only. Please contact us if you would like to discuss these developments further.