Domestic Air Travel Considerations for Foreign Nationals in the United States

Recent reports and practitioner observations indicate that some foreign nationals have been questioned, delayed, or detained at airports even when they may have valid immigration status or are in a period of authorized stay.

These encounters appear to occur most often where travelers have valid Form I-94 records or pending extension or change of status filings, or a pending application for an immigration benefit, but do not have a currently valid visa stamp in their passport or cannot immediately produce documentation confirming their current immigration status. An expired visa stamp does not necessarily mean that an individual has overstayed, and the Form I-94 generally controls the authorized period of admission in the United States of an individual.

Importantly, some travelers whose prior period of admission has lapsed may nonetheless be authorized to remain in the United States because they have a qualifying application pending before U.S. Citizenship and Immigration Services (USCIS).

We understand that increased information sharing among government agencies, including the Department of State, U.S. Immigration and Customs Enforcement, and the Transportation Security Administration, may be contributing to additional scrutiny of certain domestic travelers.  To date, there remains limited formal public guidance from federal agencies addressing these specific airport encounters.

Individuals with Pending Extensions or Changes of Status

Of particular concern are foreign nationals who are maintaining eligibility to remain in the United States through the timely filing of an extension or change of status petition or application. In many circumstances, a timely filed request may permit the individual to remain in the United States while the request is pending under a period of stay authorized by the Department of Homeland Security. However, recent reports suggest that some officers may not readily recognize or confirm that posture unless the individual can produce supporting documentation, such as a USCIS receipt notice or other evidence of the pending filing.

Individuals with a Pending Application for an Immigration Benefit

A separate group of travelers includes foreign nationals whose prior period of admission has lapsed but who have filed a qualifying application with USCIS. For example, an application to adjust status to lawful permanent residence (Form I-485), an affirmative asylum application (Form I-589), an application for Temporary Protected Status (TPS), or for U or T nonimmigrant status. Travelers in this group should be prepared to show evidence of the pending application when traveling domestically. Because these situations are highly fact-specific, and because a prior overstay can carry separate consequences, individuals in this group should consult immigration counsel before traveling.

What Travelers and Employers Should Do Now

To prepare for potential questions/occurrences during domestic air travel, foreign national travelers should bring the following documentation on hand for all travel:

• Most recent Form I-94 record
• Current approval notices, including Form I-797 approval notices
• Receipt notices for any pending extension, change of status, or other immigration benefit application
• Valid passport and any available visa documentation
• Employment authorization documents, where applicable
• Status-specific documents, such as Form I-20 for F-1 students or Form DS-2019 for J-1 exchange visitors, or an approval notice evidencing a grant of TPS or U or T status, where applicable
• Other supporting immigration documentation relevant to the traveler’s current status or pending filing

Travelers should review their Form I-94 before and after all travel to confirm that it accurately reflects their most recent admission, class of admission, and authorized period of stay. If a traveler’s I-94 has expired and an extension, change of status, or immigration benefit request remains pending, we recommend speaking with immigration counsel before traveling domestically.

Additionally, for individuals whose underlying status has expired and who are relying on a pending extension, upgrading to premium processing (where applicable) may help reduce uncertainty as receiving a new approval notice and I-94 allows individuals to clearly demonstrate their authorization if questioned during domestic travel.

Further, individuals who may have prior immigration status violations, criminal arrests or convictions, complex or unusual immigration histories, or pending immigration matters involving distinct legal issues should consult with immigration counsel before making any travel plans.

Key Takeaway

Individuals with pending or active immigration matters should recognize that compliance and preparedness extend beyond petitions and work authorization. Maintaining current documentation, understanding travel-related requirements, monitoring pending filings or extensions, and seeking legal guidance when appropriate are essential steps to minimize potential disruption and navigate the evolving U.S. immigration enforcement landscape.

This publication is intended for general informational purposes only and does not constitute legal advice or a solicitation to provide legal services. The information in this publication is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Readers should not act upon this information without seeking professional legal counsel. The views and opinions expressed herein represent those of the individual author(s) only and are not necessarily the views of Clark Hill PLC or Clark Hill Solicitors LLP. Although we attempt to ensure that postings on our website are complete, accurate, and up to date, we assume no responsibility for their completeness, accuracy, or timeliness.