United States: Summer Travel Considerations for Foreign Nationals

Given the current administration’s heightened approach toward immigration vetting, several groups of travelers should take extra care in their decision-making and planning for international travel:

• • Students. There has been recent heightened scrutiny of students’ and exchange visitors’ social media content and activities in the United States, in many cases followed by an F-1 visa revocation and/or termination of the student’s “active” status in SEVIS. If you are a student and have ever had or been charged with a civil or criminal violation, even if the incident did not result in an arrest or conviction (including relatively minor infractions, such as traffic violations or unpaid parking tickets), you should seek immigration counsel before deciding whether to travel. In addition, because the U.S. government is engaging in closer review of foreign students’ and exchange visitors’ social media posts and activities in the United States, you should seek immigration counsel if you have questions about how this increased scrutiny may apply to your travel.

International students should also be aware that visa revocations and/or SEVIS terminations could delay or prevent issuance of a new visa, and could trigger scrutiny at a U.S. port of entry. Before departing the United States, F-1 students should try to determine whether their visa was revoked by the Department of State, and whether their “active” status was terminated in SEVIS by U.S. Immigration and Customs Enforcement (ICE). While several SEVIS terminations have been and continue to be reversed by the government in response to litigation, students should remain aware of this ongoing issue and seek counsel if they have been impacted. Relatedly, a visa revocation renders a foreign national subject to deportation from the United States, so it is important for an international student to seek counsel if they learn that their visa has been revoked.

• • Foreign nationals with prior interaction with law enforcement. In marking the new administration’s first 100 days in office, Secretary of State Rubio highlighted the State Department’s “catch and revoke” policy regarding visas, asserting a “one-strike policy” for violations of U.S. law. While the specific parameters of this visa revocation policy have not been articulated, there is likely to be additional scrutiny and complication for visa applicants who have had or been charged with a civil or criminal violation, even if the incident did not result in an arrest or conviction. There have also been anecdotal reports of heightened U.S. Customs and Border Protection (CBP) scrutiny of these foreign nationals when entering the United States. Foreign nationals with any prior interaction with law enforcement should seek immigration counsel before deciding to travel.

• • Those applying for visas at a U.S. consulate. Recent months have seen several changes to U.S. immigration policy and practice without notice to the public, resulting in an increased level of unpredictability. Any foreign national applying for a new visa abroad should be prepared for the possibility of additional screening and/or increased time frames for visa processing, which could delay reentry to the United States.

Though the new administration strongly suggested it would implement a travel ban or other entry restrictions, it has not yet taken clear steps to do so.  Nevertheless, travel restrictions remain a possibility.  Foreign nationals should consider the risk of a travel ban when making their decision whether to travel internationally this summer, particularly if they are a citizen of or were born in a country that was subject to travel bans in the past or may be a country of concern in the current environment.  If a travel ban is implemented, there may be exceptions for certain groups of travelers, but these are not a certainty.

Before travel abroad, all foreign nationals should make sure to do the following:

Check your passport validity. In general, your passport must be valid for at least six months beyond the expiration of your period of admission to the United States. This is to ensure that you will be able to leave the United States at the end of your stay and proceed to your home country or another country. There are some exceptions to this rule. Many countries have an agreement with the United States under which a passport is deemed valid for an additional six months past its expiration date so that the passport holder can return to his or her country of citizenship.

If you have questions about whether your passport is valid for reentry, contact your designated Fragomen professional or click here for more information.

Check your visa to make sure it is valid for reentry to the United States. When you come back to the United States after international travel, the visa stamp in your passport must reflect your current nonimmigrant visa status, it must be unexpired, and, if the visa has a limited number of entries, it must have a remaining valid entry available on the intended date of reentry to the United States. Canadian citizens are not generally required to have a valid visa to enter the United States, unless they are E-1 or E-2 nonimmigrants, or in some other limited statuses.

Under certain circumstances, if you are making a short trip of 30 days or less to Canada or Mexico and have a valid I-94 arrival record, you can reenter on a previously issued visa even if it has expired. But if you have applied for a new visa while in Canada or Mexico or if you are a citizen or national of Cuba, Iran, North Korea, or Syria, you must wait to obtain the new visa in order to reenter the United States.

For additional information on visa requirements, click here.

If you are an adjustment applicant, find out whether you need advance permission to travel before you leave the United States. If you are an applicant for adjustment of status to permanent residence, you may be required to obtain advance permission to travel - known as advance parole - in order to leave the United States while your adjustment application is pending.

If you already have a valid H-1B, H-4, L-1A, L-1B, or L-2 visa, you may be able to reenter the United States on that visa, without the need for advance parole. But family members in H-4 status who have worked in the United States pursuant to an employment authorization document (EAD) issued in connection with their adjustment of status application should be cautious when traveling, and are advised to obtain advance parole before leaving the country.

If your application for advance parole is pending, you should contact your Fragomen professional prior to any international travel to determine the impact of travel on all pending applications and your underlying nonimmigrant status.

Is a change or extension of your status pending with U.S. Citizenship and Immigration Services? If you are the principal beneficiary of a nonimmigrant visa petition, travel abroad while a Form I-129 petition to extend your nonimmigrant status is pending should not jeopardize your petition. Travel while a Form I-539 application to extend your nonimmigrant stay is pending could result in denial of the application; USCIS has been increasingly denying these applications due to travel. But if you have either a Form I-129 petition or a Form I-539 application to change status to another nonimmigrant category, you should avoid international travel until it is adjudicated. USCIS will consider the change of status request to be abandoned if you depart the United States while it is pending. Though a Form I-129 nonimmigrant petition could still be approved, you would need to depart the United States, apply for and obtain a new visa, and then reenter, to take up the new status.

If you're planning business or tourist travel to the United States under the Visa Waiver Program, make sure you comply with program requirements. The Visa Waiver Program (VWP) allows citizens and nationals of designated countries to enter the United States for up to 90 days of business or tourist travel without a visa, provided that they meet specific registration and passport requirements. If you're planning to travel under the VWP, you will need to have a valid registration in the Electronic System for Travel Authorization (ESTA) at least 72 hours before your departure for the United States. Find out more about VWP passport and ESTA requirements here.

If you are a Chinese national traveling on a 10-year visitor visa, make sure you are enrolled in the Electronic Visa Update System (EVUS). If you are not enrolled, make sure to do so at least 72 hours before travel. Failure to enroll could result in a provisional revocation of your visa and delays in your travel plans. Find out more about EVUS enrollment here.

The U.S. government is currently focused on heightened scrutiny and enforcement at every stage of the immigration life cycle.

Plan for the possibility of visa issuance delays at U.S. consulates. If you will apply for a new visa while abroad, you should check the relevant consulate or embassy for specific information about appointments, application procedures and processing times, and always plan your travel with flexibility, to the extent possible, to mitigate unexpected delays. During the summer travel season, U.S. consulates overseas are busier than ever. On top of the busy travel season, summer is also the time when foreign service officers are completing their tours of duty and moving to new assignments at other consulates, which can slow processing. An additional factor this year, as noted above, is the State Department’s new directives to consular officers requiring increased scrutiny of many visa applicants, which could result in further overall slowdowns in visa processing.

Plan for possible security clearance delays during the visa application process. If you will apply for a new visa before returning to the United States, be prepared for lengthy wait times and the possibility that your application will be flagged for enhanced security checks. The U.S. consulate may require your visa application to undergo additional security screening based on your country of nationality, whether your name is similar to an individual listed in a U.S. government security database, whether your job or degree is in a high-technology field, or whether you have ever had an issue with law enforcement, among other reasons. Security checks are a regular part of the visa application process, and some applications, including those described above, will require the State Department and other agencies to implement more stringent vetting of applicants. This year, a social media review will be mandated for many student visa applicants, which would add an additional layer of scrutiny and possibly result in referral for a full security clearance.

If a security clearance is required, your visa cannot be issued until the clearance has been completed. Because this process is confidential, the consulate will not confirm that a clearance is underway but may indicate that "administrative processing" is required. Security clearances can take anywhere from a few days to several months. In general, the government will not expedite a security clearance.

At the U.S. port of entry, be prepared for enhanced security screening procedures. When you return to the United States, you will need to go through the Biometric Data Collection System, a check-in process where your fingerprints, photograph and travel documents are scanned against U.S. national security and police databases. You may also be subject to intensive questioning about your immigration status, travel history, the purpose of your visit, background, employment, and other issues. This could include a search of your electronic devices.

It is important to remain patient during the inspection process. Before you travel, check your employer’s procedures for dealing with searches of company-owned phones, laptops and other devices. During inspection, answer questions to the best of your ability. If you don't understand a question, ask for clarification. If you are detained at the port of entry, you are generally not entitled to have a lawyer present, but you should ask for permission to call Fragomen offices if the need arises. You should explain that contacting Fragomen will allow us in turn to contact your employer if further information is required. For more information about border procedures, click here.

As a reminder, seek immigration counsel before you decide to travel if you have ever had or been charged with a civil or criminal violation, even if the incident did not result in an arrest or conviction.

Obtain your Form I-94 arrival record. Once you have been cleared by U.S. Customs and Border Protection at an air or sea port of entry, CBP will create an I-94 record to show the date and class of admission, and the expiration date of your authorized stay. Your immigration information and duration of stay will be entered into CBP's online I-94 arrival record system.

The expiration date on the I-94 record marks the expiration of your eligibility to remain in valid legal status in the United States. Overstaying this date can have serious consequences. After your arrival in the United States, you must obtain a printout of your online I-94 here. You should send a copy to your Fragomen professional and retain one for your records. Notify your Fragomen professional as soon as possible if you note any errors in your I-94 record.

You should also be careful to note if your I-94 date of authorized stay has been truncated to match your passport expiration date – this is not an error, but it must be addressed in short order to avoid any negative impact on your status. If your I-94 has been truncated based on your passport expiration, reach out to your Fragomen point of contact as soon as possible.

On our firm's website, you will find detailed information on international travel and immigration obligations.