Can You Fly While Your Immigration Case Is Pending?
What Travelers Should Know About Recent Airport Enforcement
Recent reports of immigration arrests at airports have understandably caused concern among immigrants and their families. People wondering whether they can travel with a pending immigration case should understand that the answer depends on their complete immigration history and individual circumstances.
Some of the people reportedly detained had pending immigration applications, work authorization, U.S. citizen relatives, or no criminal history. These reports should be taken seriously, but they do not mean that every person with a pending immigration matter will be detained while traveling.
Immigration status is highly individual. Before canceling a trip or relying on information shared through social media, travelers should have their own immigration records reviewed by a qualified immigration attorney.
Before You Travel: Review These Documents
Before making travel plans, gather the following documents for review, if available:
Do not rely only on the expiration date printed on a visa, work permit, or other document. Your complete immigration history may affect whether travel creates additional risk.
What Should You Do If an Officer Approaches You?
Encounters with law enforcement can be stressful, especially in an airport. Staying calm can help prevent the situation from escalating.
People generally have constitutional rights regardless of immigration status. However, the rules and available protections can differ at international borders, ports of entry, airport screening areas, and locations inside the United States.
Asking for an attorney does not guarantee that questioning or enforcement activity will stop immediately. However, you should clearly state that you want legal advice and avoid signing anything you do not understand.
Prepare an Emergency Contact Plan
Travelers who have concerns about their immigration history should consider preparing a basic emergency plan before flying.
The plan may include:
An Expired Visa Does Not Always Mean Expired Status
A visa placed in a passport generally allows a person to travel to a U.S. port of entry and request admission. After entry, the person’s authorized period of stay is usually reflected on the Form I-94.
A visa stamp can expire while a person remains authorized to stay in the United States.
For many travelers, the “Admit Until Date” on the I-94 is more important than the expiration date printed on the visa. Some I-94 records may instead show “D/S,” meaning duration of status, which requires a more individualized review.
An expired visa stamp alone does not establish that someone is unlawfully present or has overstayed an authorized period of admission.
A Pending Immigration Case Does Not Protect Everyone in the Same Way
The phrase “pending immigration case” can describe many different situations, including:
Each situation has different legal consequences.
A pending application may allow someone to remain in the country while the government reviews the case, but it does not necessarily mean that the person has lawful immigration status or is protected from enforcement.
A receipt notice, work permit, scheduled hearing, or pending petition should not be treated as complete protection without reviewing the person’s full immigration history.
Domestic and International Travel Are Different
Domestic travel and international travel raise different legal concerns.
Domestic travel
A domestic flight generally does not require a person to apply for admission to the United States. However, travelers still pass through TSA screening and may encounter federal law enforcement.
Someone considering domestic travel should speak with an attorney if they have:
International travel
Leaving the United States can create additional consequences not only for individuals with an immigration case pending but also for Lawful Permanent Residents with criminal record.
A person with a pending adjustment-of-status application may abandon the application by leaving without the appropriate travel authorization. Even when advance parole has been approved, it does not guarantee admission back into the United States.
International travel can also raise questions involving unlawful presence, prior immigration violations, inadmissibility, and eligibility for the underlying application.
Anyone with a pending immigration case or permanent residents with criminal record should obtain individualized legal advice before leaving the country.
Do Not Make Decisions Based Only on Headlines
Recent airport enforcement reports are serious, but generalized warnings cannot determine whether a particular person should travel.
Statements such as “anyone with an expired visa will be arrested” or “everyone with a pending case is safe” leave out important legal distinctions.
Do not panic, and do not assume you are safe or unsafe based only on an expired document or a pending application.
Concerned About Traveling With a Pending Immigration Case?
Before making domestic or international travel plans, speak with an immigration attorney who can review your documents, immigration history, destination, and individual circumstances. Portillo Immigration Law can help you understand the potential risks and prepare before you travel.