By Natalie M. Richman, Esq., Partner & Removal Defense Department Chair
As immigration policies continue to evolve, individuals holding immigrant and nonimmigrant visas must exercise caution when traveling outside the United States. Global Immigration Legal Team can advise you about the specifics of your individual case and will work with you to ensure the safest travel possible. The following guidance outlines key considerations and risks associated with travel for various visa classifications.
I. General Considerations
Before departing the U.S., noncitizens should assess the following:
• Validity of Visa and Travel Documents: Ensure passports are valid for at least six months beyond the intended return date (8 C.F.R. §214.1).
• Advance Parole for Certain Visa Holders: Individuals with pending adjustment of status applications (Form I-485) may need an approved advance parole document to re-enter the U.S.
• Impact of Immigration Policy Changes: Executive orders, administrative policies, or consular processing delays may affect reentry eligibility.
• Inadmissibility Issues: Prior removals, criminal history, or prolonged unlawful presence in the U.S. may trigger bars to reentry under INA §§212(a)(9)(B)-(C)
II. Considerations by Visa Classification
A. Immigrant Visa Holders (Green Card Holders – Lawful Permanent Residents (LPRs))
• Reentry Permit (Form I-131): LPRs planning to remain outside the U.S. for over one year should obtain a reentry permit to avoid abandonment of residency.
• Returning Resident (SB-1) Visa: LPRs who remain abroad for over one year without a reentry permit may need to apply for an SB-1 visa at a U.S. consulate (9 FAM 42.22 N1.1).
• Conditional Residents (CR1, CR2, etc.): Those with conditional green cards must file Form I-751 (marriage-based) or I-829 (investment-based) timely to avoid losing status while abroad.
B. Temporary Protected Status (TPS) and Deferred Action for Childhood Arrivals (DACA) Recipients
• Advance Parole Required: TPS and DACA recipients must obtain advance parole (Form I-131) before departing to ensure reentry eligibility.
• Risk of Inadmissibility: Departure may trigger unlawful presence bars for those previously without lawful status before obtaining TPS or DACA.
C. Nonimmigrant Visa Holders
• H-1B, L-1, O-1, and Employment-Based Visas: Travelers should ensure their visa remains valid for reentry and confirm with employers that travel will not disrupt employment status.
• F-1 Students and J-1 Exchange Visitors:
-Must maintain valid Form I-20 (F-1) or DS-2019 (J-1) with an unexpired travel signature from their Designated School Official.
-Visa stamping may be required if the visa has expired.
-Students on Optional Practical Training (OPT) should carry their Employment Authorization Document (EAD) and job offer letter.
• B-1/B-2 Visitors: Travel outside the U.S. should align with the duration of stay granted upon entry (typically six months) to avoid overstay consequences.
III. Travel During Pending Applications and Petitions
• Travel while an Extension or Change of Status is Pending: If a nonimmigrant visa holder travels abroad while an extension or change of status petition is pending, the application may be deemed abandoned, requiring a new visa application abroad.
• Effect of Travel on Adjustment of Status (AOS) Applications: Applicants for AOS must obtain advance parole before departing. Traveling without advance parole results in the abandonment of the Form I-485 application with few exceptions, such as for H1B visa holders or L-1A/B visa holders.
• Last Action Rule: The most recent action taken by USCIS or CBP determines a foreign national’s status upon reentry. This means that even if a petition extension is approved before departure, if a traveler re-enters on a prior visa, the latest admission governs status.
IV. Risks of Travel Restrictions and Delays
• Administrative Processing Delays: Some visa holders may be subject to background checks or administrative processing, causing delays in visa issuance under INA §221(g).
• CBP and NTA-Related Detention Risk: Recent changes in practice by some Customs and Border Protection (CBP) ports of entry mean that individuals with pending Notices to Appear (NTAs) encountered at the time of requesting admission are now subject to detention by CBP or Enforcement Removal Operations (ERO). This applies even to legal permanent residents and conditional permanent residents in removal proceedings, including those with valid I-551 stamps issued post-Form I-751 denial. Given the uncertainty in outcomes, clients with an NTA should avoid international travel and seek legal counsel before making any travel decisions.
• COVID-19 and Other Travel Bans: While many pandemic-related travel restrictions have been lifted, noncitizens should check the U.S. Department of State website for current country-specific restrictions.
• Changes in Country Conditions: Unstable political or economic conditions abroad may impact the ability to return to the U.S.
V. Best Practices for Travelers
1. Consult an Immigration Attorney: Seek legal guidance before traveling, especially for individuals with pending applications or previous immigration violations.
2. Monitor U.S. Consulate Notices: Visa applicants should check the U.S. embassy website in their destination country for processing delays and appointment availability.
3. Carry Supporting Documentation: Bring a copy of visa approval notices (Form I-797), employment verification letters, and any other relevant immigration documents.
4. Enroll in the U.S. State Department’s STEP Program: The Smart Traveler Enrollment Program (STEP) provides travel alerts and assistance in emergencies.
VI. Conclusion
Given the ever-changing immigration landscape, individuals holding nonimmigrant or immigrant status should take proactive steps to ensure smooth travel and reentry to the U.S. If you have any concerns regarding your immigration status or travel plans, please contact Natalie M. Richman or our office at (610) 975-4599 for further assistance. No matter your situation, we will fight to protect you and your family.
Disclaimer: This memo is for informational purposes only and does not constitute legal advice. Consult a qualified immigration attorney for case-specific guidance.
Reviewed by Brendan Ryan, Esq., Family Immigration & Federal Practice Department Chair