Summer Travel Considerations for Foreign Nationals

If you are a foreign national thinking about international travel this summer, there are additional factors to consider in making your plans this year. The U.S. government’s recent increased scrutiny on non-citizens may affect your travel plans. Depending on your individual circumstances, it may be advisable to seek immigration counsel before deciding whether to travel abroad. If you choose to travel, make sure you have the immigration documents and instructions you will need to support a smooth reentry to the United States.

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 Before departing the United States, F-1 students should try to determine whether their visa was revoked by the Department of State, and whether their “active” status was terminated in SEVIS by U.S. Immigration and Customs Enforcement (ICE).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the United States, so it is important for an international student to seek counsel if they learn that their visa has been revoked.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 immigration attorney.

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.

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 attorney 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.