Travel Advisory for Foreign Nationals – Update
Posted Sep 27, 2001

This NewsFlash item is an update to the NewsFlash we sent to MurthyBulletin subscribers last evening, September 26, 2001. We have received requests from various companies and individuals for a more detailed list of documents that will enable employees and their families to travel while attempting to comply with the requirements of the law.

As mentioned in the MurthyBulletin NewsFlash of yesterday, Section 264(e) of the Immigration and Nationality Act (INA) requires foreign nationals over the age of 18 to carry certain documentation with them at all times. Specifically, Section 264(e) provides: "Every alien, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him pursuant to subsection (d). Any alien who fails to comply with the provisions of this subsection shall be guilty of a misdemeanor and shall upon conviction for each offense be fined not to exceed $100 or be imprisoned not more than thirty days, or both."

8 C.F.R. section 264.1 delineates what constitutes a registration document for different classes of individuals, including nonimmigrants. For those on H1B status, it is a good idea to carry the following information at all times :

1) The passport.

2) The I-94 card.

3) A copy of the H1B Approval Notice or TN Approval Notice, if applicable.

Some H1B applicants would have recently started work for a new H1B employer based on the H1B portability provisions of the American Competitiveness in the Twenty First Century Act of 2000 (AC21). This law allows an H1B employee to commence work with a new employer if certain conditions are satisfied, namely, the person timely filed an H1B petition to work with a new H1B employer and such H1B Petition is pending with the INS.

Most lawyers will advise against travel when a person does not have an H1B approval notice. However, certain emergencies require foreign nationals to travel abroad for work or personal reasons. Even prior to the tragic events of September 11, 2001, INS port-of-entry officers were not consistent in allowing a person with a pending H1B extension to re-enter the U.S. If they allowed re-entry, the dates varied. For example, we have seen I-94 validity dates given based on prior approval notices; other times to the date mentioned on the visa stamp in the passport; while still other times, rarely, until the date of the latest H1B petition date where the INS officer checked the CLAIMS software to verify the approval of the most recently submitted H1B petition.

INS Memoranda clarify that, if the new H1B petition is pending with the INS, the foreign national may be allowed to re-enter the U.S. under AC21 until the date of the prior H1B approval of the prior employer or the date requested in the most recent H1B extension if the case has been approved by the INS.

In the event of an emergency requiring foreign travel, the foreign national should carry some or all of the following additional documents :

a) The INS Receipt Notice, if the INS has issued it.

b) In the event the INS has not yet issued the Receipt Notice, at the minimum the H1B applicant needs to carry a copy of the proof of delivery of the H1B Petition filing with the INS - like a FedEx tracking verification; copy of the Air Bill, etc. - with a copy of the cover letter to the INS, which is on the attorney's stationery.

c) Name, address, and phone number of the H.R. Department contact at the company or the name of the immigration attorney, should the INS wish to contact the company to verify the bona fides of the employment.

This NewsFlash item is a service provided by The Law Office of Sheela Murthy to help those of you who need to travel for work or personal reasons. We will share with you any additional information upon obtaining relevant updates.