FAQ: International Travel

Background

Given recent actions by the Trump Administration, U.S. citizens and non-citizens alike have grown concerned about entering the United States after foreign travel. While there have been no official changes in law or policy that restrict re-entry for individuals with valid documentation, publicized government actions and rhetoric may be creating a chilling effect.

When arriving at the port of entry (airport or land border), individuals encounter a unique legal environment wherein their rights are more limited compared to being within the United States. Immigration officers have broad authority to search publicly available information and all electronic devices and social media accounts when travelers enter the U.S. As a result, it is best to consider and potentially limit the information available on these devices, or to leave them at home. For example, activity that could be construed as illegal or supporting terrorists or against U.S. political interests could lead to problems. 

Government policies — official and unofficial — can change quickly and unpredictably. Individual immigration officers may scrutinize travelers to varying degrees at their discretion. Thus, there is always a risk of difficulty re-entering the U.S. Please see below for answers to frequently asked questions, keeping in mind that having a consultation with a knowledgeable attorney would be required for risk assessment on a case-by-case basis.

What Happens When Travelers Enter the U.S. After Foreign Travel?

• Each time someone travels and returns to the U.S., they must be inspected anew for admission. U.S. Customs and Border Protection (CBP) is responsible for this process, and they have the right to ask questions, request documents, and search travelers’ persons and possessions, including all electronic devices. Please note that Fourth Amendment constitutional protections do not apply at the border or during re-entry.
• Admission is never guaranteed for noncitizens; instead, it is generally considered an application for admission that may be approved or denied at the discretion of the CBP Officers. It is important to note that U.S. citizens cannot be denied entry, but lawful permanent residents and nonimmigrant visa holders may face additional scrutiny.
• In some cases, CBP can place a traveler in “secondary inspection” to ask more questions and conduct a more in-depth review. This delay can be based on no reason (i.e., can be random), or can be because they have further inquiries relating to their eligibility for admission to the U.S. (for example, they may wish to confirm the individual’s employment), or because their name matches a person of interest. Secondary inspection typically involves going to an interview room and may take several hours. 
• The CBP Officers sometimes are not sufficiently trained in all visa categories and types of travel documents. A traveler may request a supervisor to review their paperwork if they believe CBP is misunderstanding their documentation.

I am a company representative, and I am concerned about our employees re-entering the U.S. after foreign travel. What steps should I take?

• Company representatives can take proactive steps to assist team members who will be traveling internationally. This may include equipping the traveler with a letter and/or other documentation about the purpose of the travel. An emergency contact plan can be made by designating a team member, such as an HR contact, to assist travelers facing challenges at the border. Establish a communication channel (e.g., WhatsApp group, email thread) for real-time updates and support. Encourage travelers to report any border issues immediately to the designated emergency support team.

What documents should I present upon seeking entry to the U.S.?

• All Non-CitizenTravelers:
  • Must present a passport valid for at least six months beyond the planned duration of stay. Ensure passport validity or risk shortened admission.
  • We strongly recommend having a consultation with a qualified attorney to review all of your documents in advance of any international travel.
• Nonimmigrants (H-1B, L-1, O-1, F-1 etc.):
  • Valid visa (unless exempt, e.g., Canadian citizens).
  • For nonimmigrants without a valid visa stamp/foil, schedule an appointment at a U.S. Consulate or Embassy outside the United States in order to apply for the visa stamp before you return. Processing times for visa stamp applications will vary from Consulate to Consulate and can be accessed here.
  • Approval notice (“I-797” or endorsed "I-129s", or travel-endorsed "I-20" ), preferably the original.
  • Proof of ongoing employment (e.g., recent paystubs, employment verification letter consistent with your current petition).
• Advance Parole Holders (e.g. AOS applicants):
  • AP travel document or combination EAD (Employment Authorization Document)/AP document.
  • Copy of your I-485 receipt notice.
  • Proof of ongoing employment (e.g., recent paystubs, employment verification letter).
  • See below for additional information for those traveling while pursuing permanent residency.
• Lawful Permanent Residents (LPRs):
  • Original green card (LPR card).
  • Note that before someone’s permanent resident status may be revoked, they 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.
  • Be aware that extended absences from the United States can trigger increased scrutiny at the port of entry, particularly of six months or more.
  • Before departing the U.S. for a period of six months or more, an LPR should apply for a re-entry permit with U.S. Citizenship & Immigration Services.
• B-1/B-2/ESTA Visitors:
  • Evidence of return plans, financial means, and trip purpose. Bring supporting documents such as an event itinerary, hotel reservations, and return flight details and have them readily available to provide if requested. If applicable, carry a letter from the host organization (on letterhead) outlining the nature of the trip and your role in the foreign company, evidence of funds to cover the expense of the trip, and evidence of maintaining residence outside the U.S. and other ongoing ties. Provide these documents only if they are requested.
• Dependent Spouses and Children:
  • Bring copy of principal’s approval notice.
  • Proof of relationship to principal (i.e. marriage certificate for spouse and birth certificates for children). 
• Canadian travelers with NEXUS cards should verify that their status is correctly reflected in their NEXUS account before departure.
  
  

Do I have to allow CBP to inspect my cell phone and social media accounts?

• CBP has the right to search electronic devices without a warrant, although travelers can request that sensitive information be handled with care. Travelers may be asked for the passwords to social media accounts. Refusing to provide this information may result in detention for nonimmigrants and entry may ultimately be denied.
• CBP is permitted to confiscate computers and cell phones. It is best to avoid travel with devices containing sensitive data.

Do I have the right to refuse to let them search my belongings?

• Failure to allow searches may be a reason to deny a non-citizen traveler 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. 

Should I worry about my social media activity before entering the U.S.?

• In short, yes. The government may consult social media profiles and postings, along with any publicly available information, to cross-check statements made during entry. Ensure that all social media accounts are consistent with the travel purpose, and with the details in the nonimmigrant visa petition.
• Given that immigration officers have broad authority to search publicly available information and all electronic devices and social media accounts when travelers enter the U.S., it is best to consider limiting the information available on these devices or to not travel with them at all. For example, activity that could be construed as illegal or supporting terrorists or against U.S. political interests could lead to problems. Assume that CBP can access anything on the electronic devices you carry and all publicly available information, and proceed accordingly.

What should I say to the CBP Officer when I seek entry to the U.S.?

• Be honest, brief and respectful. Note that lying to an immigration officer can have a serious impact on one’s ability to seek immigration status in the future or to enter the United States.
• Avoid volunteering excessive information. Respond only to what is specifically asked.
• Be ready to explain current visa status, U.S. visit history, and current trip purpose.
• CBP Officers have broad discretion when refusing a traveler’s entry, and it is recommended to be polite and respectful during any interaction. Understand that security procedures are standard and remain calm throughout the process.
• While individuals have the right to remain silent, refusing to answer questions or provide information may lead to delays or denial of entry.

Do I have the right to an attorney at the airport or border?

• Although CBP takes the position that travelers are not entitled to an attorney during primary and secondary inspection, we encourage travelers to have the telephone number of a responsive HR contact on hand and ask to contact them if you feel your rights are being violated or if you have been detained for an unusually long period, and the HR person can in turn contact an attorney.For anyone attempting to enter the United States, if a Customs Officer informs you that you are under arrest, or if it becomes clear that they suspect you have committed a crime, you should ask to speak to a lawyer before answering any further questions — and if you wish to exercise your right to remain silent, you should say so out loud.
• Travelers may also request that the Officer contact someone at the place of employment to verify 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.
• While having a loved one or emergency contact available to text or call in case of emergencies is wise, proactive preparation is the best strategy.
• 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 CBP 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. 

What if I have an arrest or conviction on my record?

• Travelers with a history of arrests (even if many years have passed) or any run-in with law enforcement or who are inadmissible for any other reason should exercise extreme caution and seek a consultation with a qualified immigration attorney before departing the U.S. for travel.

What if I am subjected to a strip search at the Border?

• A strip search at the border is not a routine search. It must be supported by “reasonable suspicion” and must be done in a private area.
  
  

Should I worry about a Travel Ban?

• Travelers can subscribe to updates from official sources such as the U.S. Department of State or U.S. Customs and Border Protection to stay informed of any news updates such as travel bans.

Is it safe to travel domestically?

• Domestic travel does not involve re-entry to the U.S., but all non-U.S. citizens are required to carry evidence of their immigration status at all times. This might include: I-94 admission record, EAD, or green card (for permanent residents).

What happens after I enter?

• Following each return to the U.S., nonimmigrants should download a copy of your electronic I-94 admission record and verify that the information it contains 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. Your I-94 ― not your passport, visa, or approval notice ― governs your authorized period of stay in the U.S. Best practice is to share each I-94 with your immigration counsel and HR.

Special Considerations for Those Traveling Internationally While Pursuing Permanent Residence

My employer has sponsored me for permanent residence. Is it OK for me to travel internationally?

• Whether you should travel internationally will principally depend on two factors: (1) type of nonimmigrant visa held, and (2) stage of permanent residence process (i.e., PERM, I-140, AOS).
• Please note that the H-1B and L-1 visa types allow for “dual intent,” which means that individuals holding H-1B and L-1 status can have the intent to move into lawful permanent resident status.
• Alternatively, the TN, F-1, or J-1 visa types are strict “nonimmigrant intent” visas, which means that individuals holding TN, F-1, or J-1 status should not have the intent to remain in the U.S. in the long term. This nonimmigrant intent requirement can complicate international travel for those holding TN, F-1, or J-1 visas where a permanent residency case has been initiated. Other visa types, including the O-1 and E-3, fall into a grey area, meaning we would want to consider and plan for any travel carefully during this time.
• For those individuals holding a “dual intent” visa status, i.e., H-1B or L-1, international travel after initiation or filing of a PERM, I-140, or Adjustment of Status (AOS) is typically permissible assuming no other issues or concerns and assuming that the individual holds an Advance Parole (AP) document or valid visa stamp in their passport. If the individual does not hold a valid visa stamp or an Advance Parole document, international travel is not advised once the AOS has been filed.
• For those holding a strict nonimmigrant intent visa, i.e., F-1, J-1, or TN, international travel after initiation of a permanent residency process will be more complicated and is not advised, particularly once the I-140 immigrant visa petition has been filed. This is because the traveler makes an attestation upon entry into the country that they will abide by the terms of the nonimmigrant visa, which includes holding nonimmigrant intent.
• For those holding O-1 or E-3 status, international travel should not be undertaken once the adjustment of status (AOS) application has been filed.

**Note that for those holding F-1, J-1, TN, O-1, or E-3, international travel after the adjustment of status has been filed will result in the abandonment of the AOS application unless the individual possesses a valid Advance Parole (AP) travel document. Even then, international travel is tricky and should be undertaken only after consultation with an attorney.

I hold H-1B or L-1 status and I currently have an AOS pending, but my Advance Parole document has not been issued. Can I travel internationally?

• A first-time application for an Advance Parole (AP) travel document, i.e., not a renewal, will be denied if the traveler departs the country before AP issuance. The advisability of international travel will depend on whether this individual possesses a valid visa stamp in their passport. If the individual does not possess a valid visa stamp in their passport and the AP has not been issued, WSM advises against international travel.

I hold H-1B or L-1 status and have a valid Advance Parole (AP) document. I would like to travel. Should I also obtain a visa stamp at a U.S. Consulate abroad before I return to the U.S., or is the AP sufficient for my re-entry?

• The valid AP document should be sufficient documentation to re-enter the United States after foreign travel. Given possible delays and complications for obtaining a visa stamp at a U.S. Consulate abroad, the AP typically can be used instead.

If I hold H-1B or L-1 status, travel internationally, and re-enter the U.S. using my AP document, how does this impact my underlying nonimmigrant status?

• Individuals who enter the United States using their AP documents have been able to benefit from nonimmigrant extension-of-status petitions without issue. In other words, we have not seen an issue with beneficiaries entering on AP and subsequently maintaining/extending their H-1B or L-1 nonimmigrant status.

Traveling Internationally While Nonimmigrant Visa Extension Petition in Process

My employer is seeking to extend my nonimmigrant status but I have international travel plans. Is travel permissible?

• Please note that traveling while the extension petition is under preparation can cause complications. For example, nonimmigrant visa holders in the United States and their dependents must be physically present in the United States on the date that the extension petition is filed. Further, if the beneficiary or their family members depart the United States after the extension petition has been filed and the extension is approved while the traveler is en route back to the United States, the traveler could be admitted under the old nonimmigrant visa approval rather than the most recently approved petition, cutting short their period of authorized stay. This is not considered a mistake and could result in either needing to travel internationally again or needing to file a new petition. Please consult with WSM LLP if you are contemplating international travel while the nonimmigrant extension petition is being prepared for filing or is pending.
  
  

Additional information and resources can be found here:

• https://www.aclu.org/know-your-rights/immigrants-rights
• https://www.aclu.org/know-your-rights/what-do-when-encountering-law-enforcement-airports-and-other-ports-entry-us
• Electronic Devices: https://www.eff.org/issues/border-searches