Client Alert: Significant Changes Impacting Domestic Air Travel for Certain Noncitizens

In a significant change to prior practice, the U.S. Department of Homeland Security (DHS) has begun detaining (i.e., taking into custody) certain noncitizens encountered during domestic air travel.

For background, certain nonimmigrants (i.e., those without U.S. citizenship or nationality or lawful permanent residence), are present in the U.S. pursuant to a “period of stay authorized by the Attorney General” (POSABAG). Individuals generally find themselves in POSABAG in two situations:

• After entering the U.S. in a valid nonimmigrant status, the individual filed a green card application but did not continue to extend their nonimmigrant status. These individuals are in POSABAG even if USCIS has issued the individual an Employment Authorization Document (EAD) or Advance Parole document for international travel. After entering the U.S. in a valid nonimmigrant status, an extension of status petition (EOS) was timely filed; however, the EOS was not approved before the expiration of the nonimmigrant status. While USCIS regulations recognize a 240-day period following a timely filed extension when a nonimmigrant is work authorized in the U.S., during the pendency of the extension these individuals are technically not maintaining a valid nonimmigrant status and are in POSABAG

Individuals relying on the POSABAG with no underlying nonimmigrant status should not travel domestically within the U.S. 

The key takeaways are:

• If you entered the U.S. in a valid nonimmigrant status, that status has now ended, and you are relying only on a pending Form I-485 (green card application) to remain in the U or.S. on a pending extension of status (e.g., Form I-129, Form I-539), do not travel domestically by air. DHS is detaining (i.e., taking into custody) individuals in a POSABAG.
  • This advice applies even if you have a valid Employment Authorization Document (EAD), advance parole, Form I-485 receipt notice or Form I-129/Form I-539 extension receipt notice. The aforementioned do not confer nonimmigrant status.
• You must monitor your Form I-94 expiration date while in the U.S. in nonimmigrant status. Customs and Border Protection (CBP) issues an I-94 when entering the U.S. from abroad. USCIS will also issue an I-94 when approving certain changes of status or extensions of status. The most recently issued I-94 controls the expiration of your nonimmigrant status.
  • If you do not monitor your Form I-94, if your I-94 has inadvertently expired or if there is an error on your Form I-94, you may be vulnerable to being taken into immigration custody.
• You must carry your valid and unexpired Form I-94 with you and be prepared to present it while in the U.S. The key point is that you must, at all times, be aware of your I-94 expiration date to ensure it has not inadvertently lapsed.
• If you are taken into DHS custody, attempt to contact a trusted family member or immigration counsel as soon as possible. DHS will frequently move individuals taken into custody out-of-state to detention facilities. Such transfers can complicate legal efforts to be released from custody.

For specific guidance, please contact your attorney.