What Are My Rights When Returning to the U.S.?
This information is provided solely for informational purposes and is not legal advice. Transmission of these materials is not intended to create, and receipt does not constitute, an attorney-client relationship. Readers should not act upon the information contained in these FAQs without first seeking advice from a qualified attorney.
These questions are prepared for individuals in an employment-based nonimmigrant visa status.
Background: What documents do I need to return to the United States following a brief trip?
If you are a nonimmigrant (e.g., H-1B, L-1, O-1, etc.), you must possess: a passport valid for 6 months beyond your intended stay in the U.S.; a valid visa stamp (unless you are visa-exempt, such as Canadian citizens); proof of continued employment (such as a recent paystub); and a valid Form I-797 approval notice authorizing you for employment with your current employer.
If your passport will expire earlier than 6 months past the date indicated on the Form I-797, you will likely be admitted to the U.S. for a shortened length of time. We recommend you ensure prompt renewal of your passport at all times.
Some individuals in the adjustment of status phase may possess a valid Employment Authorization Document/Advance Parole which will permit you to travel and return to the U.S. In this case, we recommend you travel with a copy of your I-485 receipt notice and evidence of continued employment, in addition to the EAD/AP.
Dependent spouses and children will require all of the above, plus proof of their relationship to you.
If you do not possess a valid visa stamp in your passport, you will need to schedule an appointment at a U.S. Consulate or Embassy outside the United States in order to apply for a visa stamp, whether this is an initial stamp or renewal of an expired visa stamp in the status you now hold. Processing times for the visa stamp application will vary from Consulate to Consulate, and can be accessed here.
In all circumstances, we strongly recommend you contact the attorney with whom you normally work at Weaver Schlenger to review all your documents in advance of any international travel.
If you are a lawful permanent resident, you should travel with a valid passport and your alien registration card. You can read more about considerations specific to permanent residence on our website.
What happens when I return to the U.S.?
Each time you travel outside the U.S., you must be inspected anew for admission upon your return. The U.S. Customs and Border Protection (CBP) is responsible for this process, and they have the right to ask questions, request documents, and search you and your possessions including the data on your electronic devices.
In some cases, they can place you in “secondary inspection” to ask more questions. This delay can be based on no reason (i.e., is random), or because they have further inquiries relating to your eligibility for admission to the U.S. (for example, they may wish to confirm your employment), or because your name matches a person of interest. Secondary inspection typically involves going to an interview room.
The CBP officers sometimes are not sufficiently trained in all visa categories or travel documents. You may request a supervisor to review your paperwork if you feel you have presented all the required documents.
Do I have the right to refuse to let them search my belongings?
No. Failure to allow searches may be a reason to deny you admission. Even for U.S. citizens, the Fourth Amendment protection against unreasonable searches and seizures without probable cause does not apply when seeking (re-)admission to the U.S., although U.S. citizens ultimately cannot be denied admission.
Do I have to allow the CBP to inspect my cell phone and social media accounts?
The CBP does have the right to look at your cell phone. We have heard anecdotally that people are being asked for the passwords to social media accounts. If you refuse to provide the information, you may be detained for several hours and as a nonimmigrant, may ultimately be denied admission to the U.S. Before someone’s permanent resident status may be removed, you have the right to a hearing so would most likely be allowed to enter the U.S. in order to wait for that hearing before an immigration judge.
The CBP is permitted to confiscate computers and cell phones if they wish. The question of how much access to data the CPB is permitted is being challenged in courts.
If you have data which you do not want to be reviewed, it is best to avoid travel with devices which permit access to that data.
Do I have the right to an attorney at the airport or border?
In general, nonimmigrants do not have the right to an attorney when seeking admission to the U.S. However, if the questions move beyond the issue of your immigration status you may inquire if you are being charged with a crime and if so, may request an attorney be present. Permanent residents are also not entitled to speak with an attorney when seeking admission, but their status cannot be removed without a hearing before an immigration judge. U.S. citizens do have the right to an attorney when returning to the U.S.
You may request that the officer contact someone at your place of employment to verify your employment, if that appears to be a concern. It’s a good idea to carry the contact information of your immigration specialist or human resources representative.
The CBP is not permitted to target individuals based on race, ethnicity or religion. If you feel you were targeted based on race, ethnicity or religion, you may choose to file a complaint with the CPB or contact the ACLU by completing the Passenger Profiling Complaint Form, or file a complaint with the U.S. Department of Transportation. To do so, it’s important to obtain the name, title and badge number of the person who interviewed you, and record as many details of the interview as soon as possible.
Is it safe to travel domestically?
President Trump’s Executive Order suspending the admission of individuals from Iran, Libya, Somalia, Sudan, Syria and Yemen for 90 days beginning on March 16, 2017 does not affect domestic travel. However, all non-U.S. citizens are required to carry evidence of their status at all times, even while in the United States. This might include: Form I-797 approval notice; EAD; electronic I-94 record or alien registration card (for permanent residents).
A final reminder
Following each return to the U.S., be sure to download a copy of your electronic I-94 (admission/departure record) to verify the information is correct. This means: you were admitted in the correct classification; the expiration date of your status is correct; and all other information is accurate.
If you are a client, please be sure to send a copy of the electronic I-94 to Weaver Schlenger LLP so that we may update our records.