Posted Nov 20, 2003

In this post-9/11 age of high security, it is important to remember that failure to attend to small details may cause big problems. When making travel plans, we caution MurthyDotCom readers to be mindful of some important matters.

2003 Reduction in Screeners Likely to Cause Delays

GovExec.Com reported that the Transportation Security Administration (TSA) reduced its baggage-screening workforce from 55,600 in March 2003 to 48,000 in September 2003. This has significantly reduced the number of screeners. While there may be some hiring of temporary employees at peak times, these individuals may not be as well trained as the seasoned screening staff. As a result, during busy travel times, travelers will likely be delayed by the TSA screening process. One who does not arrive early enough at the airport may not make the last call for boarding. As many international travelers know, rescheduling flights can be time-consuming and costly. It is also particularly dangerous to wait until near the end of one’s period of status in the U.S. to depart the country because even simple delays may cause one to end up in a period of overstay in the United States.

Dependents in the U.S. Must File Documents to Maintain Status

A person obtains an I-94 card (Arrival / Departure Record) generally at the port of entry upon arrival the U.S. or when the USCIS issues an approval notice granting a change or extension of status. Before traveling, nonimmigrants should look at the status expiration date printed or stamped on their I-94 cards, to ensure they have not stayed beyond the authorized period of stay. An overstay could occur for a variety of innocent reasons, including receiving an incorrect expiration date on the I-94 card following an earlier return to the U.S. It also happens to many spouses on dependent status, such as H-4s, because of a common misunderstanding. Many H1Bs wrongly presume that if they extend their status, the H-4s for their families are somehow "automatically" extended. This is simply not the case. A separate filing and a separate approval notice from the USCIS is required for the extension of the H-4 status of each dependent family member. Photocopies of I-94 cards should be kept, as the original cards are surrendered upon leaving the U.S.

Check Documents Carefully before Departing the U.S.

If a would-be traveler finds an error on the I-94 card before traveling, s/he should make efforts to have this mistake corrected. Immigration attorneys may be able to guide those with incorrect I-94 cards to address the mistake, if it was the fault of the Custom Border Protection (CBP) Inspector. Leaving the U.S. without correcting the error may cause confusion regarding whether the person has overstayed. This confusion could lead to a consular officer's refusal to issue a visa, or a delay or possible denial to reentry at the port of entry.

Potential Three- and Ten-Year Bars

Any person who has overstayed should discuss the possible implications of the violation with an immigration attorney, particularly in terms of the consequences of departure after an extended period of overstay. If the person has been in the U.S. unlawfully for 180 days or more, there is likely a three-year bar to reentering the U.S. This increases to a ten-year bar on reentry if the person is unlawfully present in the U.S. for one year or more. Every period of overstay does not necessarily mean a person has been unlawfully present, subjecting him/her to the three- or ten-year bar. It is important to consult with an immigration attorney to determine this critical distinction. One must understand that just because the USCIS has issued an AP document, if the person is subject to the three- or ten-year bar, the AP document does not cure the problem.

I-485 Filing Considered a Period of Authorized Stay

A person who has a pending I-485, Application to Adjust Status to Permanent Residence, may have an expired I-94 card. While the I-485 application is pending a decision, such an individual is generally lawfully permitted to remain in the U.S. This is technically referred to as being in "a period of stay authorized by the Attorney General." There is no special document, apart from the I-485 receipt notice and Employment Authorization Document (EAD), that reflects a person's right to remain lawfully in the U.S. while the I-485 application is pending. Unless the person with an I-485 pending is seeking to reenter the U.S. pursuant to valid H or L status, s/he will need an advance parole (AP) document to gain readmission to the U.S.

I-485 Approval Not Assured by Granting of AP and EAD

If a person fails to maintain status, works without authorization, or overstays for a time period beyond 180 days, her/his I-485 Application to Adjust Status will be denied by the USCIS. Some people are surprised when they receive a denial because they assume that after obtaining an EAD and AP, USCIS will grant them approval of their I-485s automatically. This is not the case. A person may be granted reentry to the U.S. on AP, but that does not guarantee subsequent approval of his/her Application for Adjustment.

Documents Required to Establish Eligibility for Particular Status

To reenter the United States, each foreign national will need certain documents establishing eligibility for the status or classification that s/he is seeking. For nonimmigrants, this usually includes a visa stamped in the passport in the appropriate classification. A person who intends to return to work in the U.S. in H1B status, for example, should have a valid H1B visa stamped in the passport, an original or a copy of the H1B approval notice, a letter from the employer confirming the ongoing need for the person, and pay stubs to establish that the person was working before s/he left the U.S. A person with a pending Application for Adjustment (I-485), if not entering in L or H status, must have an AP document. A permanent resident will need to show a valid (or un-expired) green card or an I-551 "temporary evidence" stamp in the passport, if s/he does not have the physical card. An immigration attorney should be able to discuss the documents needed for each type of traveler to reenter the U.S.

US-VISIT Implementation in Early 2004

By the time many travelers return to the United States, the US-VISIT program should have been implemented at U.S. airports and seaports. Though those responsible for the US-VISIT program claim that it will only add a few seconds to the reentry process, we remind MurthyDotCom readers that they may be reentering the U.S. during the early stages of the implementation of US-VISIT. There is no guarantee that it will not significantly delay reentry. It is important to be patient during this process. Hostility toward those who are implementing US-VISIT at the ports of entry may result in additional delays and possible refusal of reentry.

Conclusion

In the excitement of seeing family members again, people may forget the "little" details that could end up preventing one's reentry to the U.S. A delay, or worse still, a denial at the port of entry is a risk that one takes upon departing the United States. We do hope that our useful tips will help you plan and enjoy a wonderful trip and a smooth return.

The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.