International Travel Tips26 Mar 2012
In this post-9/11 age of high security and careful screening of foreign nationals seeking to enter the United States, 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 the following potential problem areas.
Travelers will likely be delayed by the Transportation Security Administration (TSA) screening process. Travelers and their carry-on bags and luggage are subject to screening and searches. Travelers should check the restrictions on carry-on baggage, with respect to weight, dimensions, and contents. They should also review airline and TSA instructions regarding prohibited items in checked luggage.
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 nonimmigrant 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 status violation 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. It is important for individuals who are seeking adjustment of status to permanent residence (I-485) to understand that just because the USCIS has issued an advance parole (AP) document, if the three- or ten-year bar is not cured if there has been a prior period of unlawful presence of sufficient duration.
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 authorized stay.” There is no special document, apart from the I-485 receipt notice, 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 application to adjust status (Form I-485) potentially may 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, if appropriate, to establish that s/he was working prior to leaving the United States. 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.
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. Travelers need to be conscious of document requirements, as well as their baggage contents, both at departure from and readmission to the U.S. We do hope that our useful tips will help you plan and enjoy a wonderful trip and a smooth return.
As with all articles on MurthyDotCom, 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.
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