Avoid Summertime Sadness: Limit Risks of International Travel for Foreign Nationals

Author: Taylor Lewellyn, Brightmine Legal Editor 

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With apologies to Lana Del Rey, HR professionals and foreign national employees may be feeling "summertime sadness" this year due to the Trump administration's increased scrutiny of non-citizens. Increasingly stringent immigration policies are having significant impacts on summer travel plans for both business and pleasure, and stakeholders must quickly learn to adapt.

Before making international travel plans in the coming months, foreign nationals and their employers should carefully weigh the risks and consider their options. Currently, several prominent law firms are advising employers to caution their employees who are not US citizens or lawful permanent residents against traveling abroad. Given the imposition of increasingly strict immigration policies and practices, the safest option is for foreign nationals to avoid unnecessary international travel and to undertake such travel only in cases of emergency or other compelling circumstances.

Despite the risks, if a non-citizen employee or their employer chooses to conduct travel abroad, they should take the following steps, as applicable:

  • Ensure the employee notifies the appropriate human resources representative or immigration contact at their employer well in advance of international travel to ensure they have the appropriate immigration documents and instructions they will need to support reentry to the US.
  • Print or save digital copies of all relevant immigration documentation, such as I-797 Approval Notices, their most recent I-94 record or an employment verification letter.
  • Consult with immigration counsel to ensure there are no additional steps that need to be taken in advance of travel.
  • Consider the risk of a travel ban when making the decision whether to travel internationally, particularly if the employee is a citizen of or was born in a country that was subject to travel bans in the past or may be a country of concern in the current political climate.  Examples include Iran, Syria, Cuba and North Korea.
  • Check passport validity. In general, a passport must be valid for at least six months beyond the expiration of the period of admission to the United States. 
  • Confirm that the travel itinerary is authorized under the traveler's immigration status and check any applicable visa to make sure it is valid for reentry to the United States. When returning to the US after international travel, the visa stamp in the traveler's passport must reflect their current nonimmigrant visa status, be unexpired and, if the visa has a limited number of entries, have a remaining valid entry available on the intended date of reentry to the United States. Canadian citizens may be exempt from this requirement under certain circumstances.
  • Schedule any necessary consular visa appointments for obtaining a new visa stamp in the traveler's passport no later than four months in advance of planned travel, and preferably six to eight months in advance. Employees should be prepared for the unavailability of mail-in or drop box visa stamping and have a back-up travel plan in place should their passports not be returned in time.
  • Mitigate the risk of US Customs and Border Patrol (CBP) searches of electronic devices at points of entry by:
    • Limiting sensitive data that is stored locally on a device and considering removing confidential documents;
    • Using strong passwords; and
    • Disabling biometric access, such as Face ID or fingerprint unlock, before entering US territory.
  • Check whether advance permission to travel is needed before leaving the United States. If the traveler is an applicant for adjustment of status to permanent residence, they may be required to obtain advance permission to travel, or advance parole, to leave the United States while their adjustment application is pending.
  • Determine whether a change or extension of status is pending with USCIS. Depending on the type of petition or application pending, international travel could result in denial of the petition or application until it is adjudicated.
  • For students and exchange visitors, seek immigration counsel before deciding whether to travel if they:
    • Have had or been charged with a civil or criminal violation, even if the incident did not result in an arrest or conviction; or
    • Have concerns about how the US government's increased scrutiny of foreign students' and exchange visitors' social media posts and activities in the United States may impact their travel.
  • If the traveler is an F-1 student, determine whether their visa was revoked by the Department of State, and whether their "active" status was terminated in the Student and Exchange Visitor Information System (SEVIS) by US Immigration and Customs Enforcement (ICE) before leaving the US.
  • For foreign nationals with prior interaction with law enforcement, even if the incident did not result in an arrest or a conviction, seek immigration counsel before deciding to travel.
  • Be prepared for the possibility of additional screening and/or increased time frames for visa processing, which could delay reentry to the United States, if the traveler is applying for a visa at a US consulate.
  • Avoid protests, demonstrations or political activity abroad.
  • If any concerns or questions remain, seek immigration counsel before deciding whether to travel abroad.

By weighing these considerations and taking appropriate precautions, foreign nationals and their employers can make informed decisions and help ensure a safe and smooth return to the US following international travel despite the rapidly changing immigration landscape.