Frequently Asked Questions About Immigration & Travel
By Scott M. Borene*
1. What do I need to consider if I am traveling to or from the U.S.?
That depends on your immigration status and whether you are traveling into or out of the U.S. This section gives some basic answers to some of those considerations. However, if you are traveling to or from the U.S. and you are not a U.S. citizen, it may be prudent to consult with an experienced immigration lawyer before traveling to make sure you have the proper documents to facilitate your return to the U.S. If you are in doubt as to your past lifetime history of U.S. immigration compliance, it may be prudent to consult an experienced immigration lawyer before departing the U.S. to assess the immigration risks associated with travel from the U.S. The consequences of past periods of “unlawful presence” can be especially harsh, resulting in bars to re-entry for 3 or 10 years.
2. What if I am traveling to the U.S.?
If you are coming to the U.S., you may need to apply for a visa from a U.S. consulate in your country. (In some countries, there is no U.S. consulate, in which case there is usually a U.S. consulate in another country that handles visa applications and other immigration matters for the country without a consulate.)
There are two broad categories of visas: immigrant and nonimmigrant.
2a. Immigrants traveling to the U.S.
An immigrant visa means you are coming to the U.S. to live permanently and will get a “green card” in the U.S. For example, if you had a U.S. employer sponsor you for a “green card”, or you married a U.S. citizen, and as a result of the employment or marriage you had your permanent residence approved,
you would apply to the U.S. consulate for an immigrant visa. You will probably be interviewed at the consulate to make sure you are eligible to enter the U.S. as an immigrant. Once you have your visa, you may travel to the U.S. and will be “inspected” at the U.S. airport or the sea or land port of entry at which you enter the U.S. by a U.S. Customs and Border Protection official. If everything is in order, you will have your passport stamped with a notation that you are a permanent resident. This stamp is, in effect, the same as having a “green card,” until your actual “green card” is mailed to you.
2b. Nonimmigrants traveling to the U.S.
If you are coming to the U.S. as a nonimmigrant, you generally still must apply to the appropriate U.S. consulate for a visa, but you will use a form called a DS-156 (Application for Nonimmigrant Visa). Since the events of September 11, 2001, many people also have to fill out a supplemental form (the DS-157), when they apply for a nonimmigrant visa. All male applicants between the ages of 16 and 45 have to fill out this form. Some U.S. consulates require some or all other applicants to fill out the supplemental form. Since July 25, 2002, there is yet another form (the DS-158 – “Contact Information and Work History for Nonimmigrant Visa Applicant”) that all applicants who are coming to the U.S. as students must fill out. As with immigrant visas, you will have to go through customs and immigration inspections when you arrive in the U.S. The officer should stamp your passport with the date you entered and will staple a card (I-94) to your passport, which will show the immigration classification you are assigned in the U.S. (such as an F-1 student, B-2 visitor, or H-1B worker), which should match the visa you entered on. The I-94 is the document that shows how long you are allowed to be in the U.S. and in which category.
2c. Nonimmigrants from Visa Waiver countries traveling to the U.S.
If you are from certain countries, you can enter the U.S. without having to get a visa first. This Visa Waiver program applies to several countries, many of which are Western European countries, such as the United Kingdom, Germany, and others. You still must be coming to the U.S. for a valid purpose and you must not engage in any activities that are not allowed in your category. For example, if you are coming as a tourist, you are not allowed to work in the U.S.
3. What if I am already in the U.S. and need to travel out of the U.S. and return?
3a. Immigrants traveling out of the U.S.
If you are an immigrant, and have a “green card”, you should be able to travel from and to the U.S. freely, assuming you have not done anything to violate your immigration status in the U.S. If you are going to be outside the U.S. for an extended period of time, such as 4 months or longer, you should apply for a Re-Entry Permit before departing the United States. As a permanent resident, you must maintain residence in the U.S. in order to continue to be considered a permanent resident. If you interrupt your residence for too long, or if you depart the U.S. without a definite intent to return, you may be considered to have abandoned your permanent residence. Therefore, it could be important that you travel with documentation that shows you are not abandoning your residence in the U.S., such as proof of property ownership, bank accounts, regular mail to your U.S. address, and other documents.
3b. Applicants for “green cards” traveling out of the U.S.
For persons who are not yet permanent residents, but who have applied for a “green card” while in the U.S., it is also very important that you make sure you have the proper paperwork to re-enter the U.S. Such a person (an Adjustment of Status applicant) is generally deemed to have abandoned the Adjustment of Status Application if he or she leaves the U.S. while the application is pending with the USCIS. However, if the applicant has a travel document issued by the USCIS, called Advance Parole, then the applicant is allowed to travel out of the U.S. and re-enter using the Advance Parole document. Applying for Advance Parole can take some time. Therefore, it is best to apply for Advance Parole at the same time as the Adjustment of Status Application is filed with the USCIS so that the applicant can travel, even if there is no travel expected in the near future. That way, if unplanned travel becomes necessary, there will not be a problem with traveling and abandoning the Adjustment application. Certain H and L nonimmigrants with pending Adjustment of Status applications may depart and reenter the U.S. without the need for Advance Parole.
3c. Nonimmigrants traveling out of the U.S.
If you are a non-immigrant in the U.S., such as a student or someone with a work visa, and are going to be traveling out of the U.S. and returning, then your situation depends on whether you have a current visa.
If you have a valid visa that has not expired and that visa is valid for the immigration category that you are going to be re-entering the U.S. in, then you generally will be able to travel freely out of the U.S. and return using that visa. For example, if you are working for an employer in the H-1 category and have a valid H-1 visa in your passport that will not have expired by the date you return to the U.S., you may return using the visa. Similarly, if you are a student with a valid F-1 visa and are returning to the U.S. to continue your studies, you should be able to use your F-1 visa to re-enter the U.S.
On the other hand, if you do not have a current visa, or if your current visa is not in the category that you will be seeking upon re-entering the U.S. (e.g., you changed your immigration category while you were in the U.S.), then you must generally apply for a new visa at a U.S. consulate abroad.
Note that if you are on a Visa Waiver, you do not have to obtain a visa, if you are still eligible to enter the U.S. under that program and if you are seeking to enter the U.S. for a purpose permitted under the Visa Waiver program.
3d. Nonimmigrants subject to Special Registration
In September 2002, a program called National Security Entry-Exit Registration System (NSEERS) or “Special Registration” was put into place. Under this program, many nonimmigrants, especially male adults from certain countries (mostly in the Middle East and the Far East), were required to register their presence in the U.S., as well as their entries into and exits from the U.S. While many of the original provisions no longer apply, persons subject to Special Registration are still registered upon entry to the U.S. and are required to go through a “Departure Registration” process at a designated port of departure before leaving the U.S. It is important to note that not all ports of departure (whether land, air or sea) are designated ports of departure for purpose of conducting the required Departure Registration process. Therefore, it is vital for persons subject to Special Registration to ensure that their departure from the U.S. is at a designated port of departure. Failure to comply with the Departure Registration requirements could result in serious penalties and difficulties in future travel to the U.S., including possibly not being allowed to enter the U.S.
4. What other considerations should I keep in mind when traveling?
No matter what your immigration status is, whether immigrant or non-immigrant, whether in the U.S. as a student, visitor, for employment, or some other category, you should keep with you documents that prove you are eligible to be admitted to the U.S. in that category. For example, if you are an employee in the H-1 category, you should have copies of recent pay stubs from your job and a current letter from your employer that confirms that you are still employed in the H-1 position for which you were approved. Students may want to keep copies of their current transcripts and class registration.
*Scott M. Borene is the Founder and Managing Attorney of Borene Law Firm, P. A. The immigration lawyers now with Borene Law Firm have more than 70 years of combined professional experience helping clients with U.S. and global visa and immigration projects. Scott Borene was selected by other lawyers as 2018 Lawyer of the Year in Immigration Law as noted by The Best Lawyers in America and Minnesota Monthly magazine. He has been repeatedly recognized as one of the Top 20 Lawyers in the World “most highly regarded by other lawyers” in corporate immigration law. He is listed in the Best Lawyers in America and acknowledged as an Immigration Law Super Lawyer. He is often called upon to act as an “expert’s expert” to advise other experienced immigration lawyers on complex immigration matters. Scott Borene is a past Director and a past Member of the Board of Governors of the American Immigration Lawyers Association (AILA), the world’s largest professional organization of immigration lawyers. In 2002, he was the founder and Conference Chair of AILA’s Global Immigration Summit in New York City, the world’s largest conference of global immigration lawyers. He has written many articles on immigration law and is a frequently invited expert speaker on immigration topics at AILA National Conferences and other major national and international legal conferences. He is the Editor-in-Chief of many leading professional reference books for immigration lawyers including The Global Immigration Guide: A Country-by-Country Survey and The Global Immigration Guide: Crossing Borders for Business, AILA’s most comprehensive books on Global Immigration. He served as Editor-in-Chief of Immigration Options for Academics and Researchers (2005), AILA’s leading Expert Occupational Handbook on immigration issues in higher education. He is the author of Dr. Yes – Some Practical Strategies for the Diagnosis and Treatment of Immigrant Visa Cases of Health Care Professionals. Scott Borene attended Harvard University in Cambridge, Massachusetts as a National Merit Scholar. After graduation from Harvard, he attended William Mitchell Law School in Minnesota. Scott Borene has more than 30 years of experience helping employers obtain work visas for key international talent. Scott Borene can be reached at firstname.lastname@example.org.
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