Jackson & Hertogs LLP

Holiday Travel Advisory

 

With the holidays approaching, you may be hoping to travel outside the United States. It is important that you notify Jackson & Hertogs well in advance of any such trip, so that we can advise you on any complications or risks. Please be aware that Jackson & Hertogs will be closed between December 25 and January 1. You should make sure you notify your HR contact and manager as well, as companies have differing policies on the length of time that an employee may remain outside the U.S. and remain on U.S. payroll.

 

Important Warning: If you are planning on traveling outside the US you should also be aware of potential changes to U.S. immigration and travel policies under the incoming Trump administration (starting January 20, 2025). There is the possibility of new restrictions being implemented next year that could impact entry or visa issuance processes for travelers. This could potentially include:

 

• Travel Bans or Restrictions: Potential introduction of travel bans targeting specific countries based on national security or other concerns.
• Visa Processes: Further delays for visa applications, including stricter vetting including the elimination of interview waivers, procedures and/or additional documentation requirements.

 

During the last Trump administration, we received little notice of these changes and hence it is safest to avoid non-critical international travel after January 20, 2025 during the incoming Trump administration.

 

Visa Stamping

 

If you must obtain a new nonimmigrant visa stamp before returning to the United States, we recommend that you secure a visa appointment online for yourself and visa appointments for your applicable dependents traveling with you well in advance before you depart the US. Many U.S. Consulates/Embassies currently have limited availability and the earliest appointments offered are well into 2025.

 

Beware of security clearance checks.

 

Anyone applying for a nonimmigrant visa risks delays resulting from “administrative processing” or “security clearance” holds. This is particularly but not exclusively true for nationals of India, Pakistan, China, and Russia. These delays can last days, several weeks, or longer. This risk of delay is applicable to all visa applicants, including individuals applying under a Visa Interview Waiver or “drop box” process. If you wish to travel outside the United States and are not a visa-exempt Canadian, you are subject to this risk. There is no U.S. Consulate/Embassy (e.g., in Canada or Mexico) where you are more or less likely to receive a security clearance check. Security clearance checks can be, and have been, ordered at all U.S. Consulates/Embassies, depending upon the circumstances. Please plan your travel accordingly so that a delay in your return due to security clearance checks does not come as a total surprise to those expecting your timely return to the United States. Be sure to advise your manager that you intend to apply for a visa.

 

Holiday Travel Recommendations

 

Before you travel, make sure that you possess the correct documentation to return from a trip outside the United States.

 

Any expired documents will jeopardize your safe return to the U.S. We recommend you follow these steps before making any trips abroad:

 

1. Ensure that your travel documents are valid (passports, visas, and/or advance parole authorization).
2. If you need a new visa stamp from a U.S. Consulate, book a visa appointment ASAP online and well before your planned travel date, to secure an appointment upon your arrival in the country abroad.
3. If you are applying for a new visa stamp at a U.S. Consulate/Embassy beware of the possibility of security clearance checks, and that your return may be delayed as a result. Make sure your HR contact, manager, and your Jackson & Hertogs immigration attorney know that you will be applying for a new visa stamp.
4. If you are an “adjustment of status” applicant without valid H or L visa status, be sure that you have a valid Advance Parole (AP) document prior to leaving the U.S. If you are relying on AP, you must return to the U.S. while your AP remains valid and unexpired. See note below regarding recent changes in USCIS policy on AP.
5. If you are traveling to a country other than your home country, be sure that you have the proper documents to enter that country.
6. All of these rules apply to any dependent family members traveling with you or separately from you.
7. After returning to the United States, log into the CBP website at https://i94.cbp.dhs.gov to retrieve your I-94 record. Then review your I-94 card to ensure accuracy. Please provide us with a PDF copy of your latest I-94 record, along with a copy of any new visa stamp received. Please do this for each dependent family member traveling with you or separately from you.

 

Important note about DUI/DWI incidents.

 

If you have been arrested or cited for a “driving under the influence” (DUI), “driving while intoxicated” (DWI), or a similar offense since your last visa was issued, you should speak with your J&H attorney prior to departing the United States. Additionally, if you received a notice from the U.S. Department of State that your visa was revoked, and have not discussed that notification with your attorney, please contact our office to schedule a consultation.

 

Important note about pending Advance Parole applications.

 

If you have a pending application for an Advance Parole travel document as part of an application for adjustment of status and you depart the United States, USCIS may deny that AP application due to abandonment. In this situation, you will need to submit a new advance parole application after you return to the US if you wish to have this travel document.

 

Important note about nonimmigrant intent, particularly for B, F, and TN nonimmigrant visa holders.

 

When most foreign nationals enter the U.S. on a nonimmigrant visa, DHS must be satisfied that the individual plans to maintain their nonimmigrant intent, and plans to perform only the activity permitted based on the nonimmigrant status. The only exception is for H-1B and L visa holders, who are allowed to also have immigrant intent. USCIS policies make it more difficult for most nonimmigrant visa holders to change to a different nonimmigrant status or adjust status to permanent resident (Form I‑485) within 90 days of admission. It is possible that filing for adjustment of status may lead DHS to conclude misrepresentation regarding your intent to return home at time of your admission to the U.S. This does NOT impact individuals entering the U.S. as H-1B, L-1, or their family members holding dependent H or L visas. It does impact individuals entering on other classifications that do NOT allow for dual immigrant such as B-1, F-1, TN, O-1, etc.

 

Check to ensure your travel documents are valid.

 

Check your passports and nonimmigrant visa expiration dates, your I-94 expiration date, and if applicable, your EAD/AP expiration date. Also check your spouse’s and children’s documents, as applicable. For trips of 30 days or less to Canada or Mexico, if you have an I-94 admission record, the Custom & Border Protection (CBP) officer may admit you on the existing I-94 to use for return to the United States. For travel anywhere other than to Canada or Mexico, unless you are a Canadian citizen, you will need a valid and unexpired visa to return to the United States.

 

If USCIS has issued you a Form I-797 Approval Notice, when returning to the U.S., you should present your Form I-797 Approval Notice and valid nonimmigrant visa stamp to the CBP officer processing your admission. This will demonstrate that you are eligible for admission as a nonimmigrant for the validity period of the approved petition and, if the I-797 is for a work authorized status, that you are employment authorized. You should always carry the original Form I-797 Approval Notice on all international trips, if USCIS has issued one to you. Please note that nonimmigrants in certain categories, such as those entering the U.S. under a blanket L-1, E-2, E-3, H-1B1 or TN, will not necessarily have an I-797 Approval Notice, unless their employers had previously filed extensions of their nonimmigrant status with USCIS. With respect to your nonimmigrant visa stamp, please ensure it is valid for a meaningful period of time after you return from your international trip.

 

Note: Most Canadian citizens do not need U.S. visa stamps from a U.S Consulate/Embassy, as they are visa exempt. Unlike citizens of all other countries, for most visa categories, Canadian citizens do not need U.S. visa stamps in their passports to enter the United States. Therefore, our advice to check visa stamps will generally not apply to them. However, Canadians should still confirm expiration dates of I-94 cards and I-797 documents and the like before departing or returning to the United States.

 

Check your passport expiration date.

 

Please ensure your passport is valid for at least six (6) months beyond your approved period of stay in the United States. The same applies for any family members. If you do not have a passport valid for the full period of authorized nonimmigrant stay, consider getting a new passport prior to your trip. Otherwise, CBP will likely “shortchange” your period of authorized stay upon your next return to the United States. By “shortchange”, we mean that CBP will not give you the full period of stay for which you were previously authorized. This is NOT an admission error. One cannot be admitted for a period exceeding the validity of the passport expiration date. You should contact your country’s nearest Consulate within the United States to determine how to obtain a new passport as soon as possible. Alternatively, you should obtain a new passport in your home country during your next trip abroad. The passport validity date is the controlling date for your admission to the United States.

 

Booking a visa appointment to get a new visa stamp (if necessary).

 

You may need to apply for a new nonimmigrant visa stamp at a U.S. Consulate/Embassy if:

 

1. You have either never obtained a nonimmigrant visa stamp for your current employment category, or
2. If your previously issued nonimmigrant visa stamp expires before your intended return date to the United States.

 

You must apply for and obtain a new visa stamp before you return from your international trip. Please make sure to book your visa appointment as early as possible even if you do not plan to leave the United States any time soon. Consular appointments may require personal interviews that can sometimes take months to obtain, due to high demand during the holidays.

 

Please note under the Department of State’s Visa Interview Waiver Program or “drop box”, certain individuals interviewed in conjunction with a prior visa application will be allowed to renew their visas without undergoing another interview. This is a discretionary program and if you are selected for administrative processing, you may be required to undergo an interview, even if initially eligible for the interview waiver. You will need to check with the specific U.S. Consulate/Embassy where you will apply for your visa to verify availability and eligibility under this program.

 

Consular appointments need not necessarily be made in your home country. You may make your visa appointment in Canada, Mexico, or another country, depending upon your circumstances. However, before making a visa appointment with a U.S. Consulate/Embassy in a country outside your home country, please ensure that the post will accept your application. Visa application processes at different U.S. Consulates/Embassies can differ from country to country. Therefore, please check with that specific Consulate for the necessary documents and procedures at the time of making your visa appointment. You can locate different U.S. Consulates/Embassies around the world by checking the U.S. State Department website, http://www.usembassy.gov/.

 

You must also determine what visa you may need to enter another country for this application. It is your responsibility to obtain what is required and respect the limits of that visa. For example, you may not be authorized to work from that country as a visitor, so you must verify with the authorities and your employer as to what is permitted before you travel.

 

If you are an applicant for adjustment of status (I-485) you should renew your advance parole as early as possible.

 

Individuals who have applied for adjustment of status (Form I-485) can travel internationally using an advance parole (AP) document. You must be in possession of your AP document prior to your departure from the United States, and it must be valid beyond the intended return to the United States from the trip abroad. The AP may have been issued in combination with an EAD. If this is the case, you will find the AP annotation at the bottom of the EAD card.

 

The AP is the required document for travel once the AOS is filed, except for those individuals who also are the beneficiaries of valid H-1B/H-4 or L-1/L-2 status and either have unexpired H-1B/H-4 or L-1/L-2 visa stamps in their passports or will apply for new stamps at a U.S. Consulate/Embassy before returning to the U.S.

 

If you were in O, E, TN, or any other status, not including H/L at the time you filed your application for adjustment of status, you MUST have a valid AP in your possession to travel internationally. If you travel without the AP (and are not eligible to apply for an H/L visa to return), departure from the U.S. may result in USCIS concluding that you abandoned your I-485 application.

 

The USCIS can take 6 months or longer to process AP renewal applications. As noted above, USCIS will deny pending advance parole applications if the applicant departs the U.S. prior to the AP being approved. Thus, it is wise to apply for renewal of any AP document within six months of its expiration date, to increase the likelihood that a new AP document will arrive before the existing AP document expires and before any travel. Otherwise, you may not receive your new AP document in time to make your international trip.

 

Send a copy of your visa/I-94 record to J&H after you return to the U.S.

 

Arrival and departure information is automated and can be accessed through the CBP I-94 website. The electronic Form I-94 record provides evidence that international visitors, students, and temporary workers have been lawfully admitted to the United States and indicates the date that the individual’s status will expire. CBP may or may not place a physical admission stamp into the passport – if an additional record of the date of admission is desired (in addition to the electronic CBP I-94 admission record), travelers should retain flight itineraries/boarding passes or other documentation of the date of admission.

 

The Form I-94 record documents your lawful admission to the United States. It confirms the visa status under which you were admitted and lists the date by which you must depart the United States. Please send us a copy of your most recent Form I-94 record if you have not already provided it to our office. You may access your online Form I-94 arrival record at this website:

 

https://i94.cbp.dhs.gov/I94

 

You will need to input your personal details such as name, date of birth and passport number. Please print out the record to Adobe Acrobat “PDF” format, and provide it to us. We need this for each family member.

 

As you know, as a nonimmigrant visa holder working for a U.S. employer, the I-94 record controls your ability to lawfully work and remain in this country. Our firm works with your employer to ensure that this critical document does not expire without extension. In addition to updating us on your most recent Form I-94, please always be sure to update us on any address, phone, and email changes.

 

While we are here to help, it is ultimately your legal responsibility to ensure your I-94 record (and that of any family members accompanying you) never expires while you are still in the United States. Please be sure to log in to the CBP website listed above each and every time you travel and send us a copy of the I-94 record you find at the website.

 

Conclusion

 

As a reminder, this advisory is an overview of current travel issues and is not a substitute for individual legal advice. If you have questions regarding your individual situation, you may contact your J&H attorney for a consultation.

 

Thank you and enjoy your holidays!