Domestic Travel Advisory: Increased Risk Of Airport Detentions

U.S. employers and their foreign national employees need to be aware of a new risk of airport detentions during domestic air travel. Reports from various immigration attorneys and the media indicate a growing number of foreign nationals have been detained by the Department of Homeland Security (DHS) at U.S. airports while traveling between states, even if they had pending applications and were in a period of authorized stay. Employers should review their workforce records and alert their sponsored employees who may be impacted to protect them during routine, in-country travel.

What Happened

Immigration attorneys have been reporting an increase in DHS detentions at airports during domestic travel over the past several days, with reported incidents in California, Colorado, Florida, Illinois, Kansas, Michigan, New Jersey, Texas, and Virginia. The individuals affected share a common profile. Their underlying nonimmigrant status has expired, but they may have timely filed an application for adjustment of status, asylum, or an extension of status request. Some of those detained had no criminal history and held valid work authorization or advance parole documents at the time. No single triggering policy or rule change has been identified behind this emerging pattern of airport detentions.

What This Means for Employers

This new enforcement trend creates risk for both the sponsoring employer and the individual employee. For HR teams, the immediate takeaway is that an employee’s pending application, standing alone, is not being treated by DHS as a guarantee of safe passage through domestic airports. Employers should not assume that a pending filing eliminates travel risk simply because the employee is otherwise maintaining a period of authorized stay.

Risk of Airport Detentions for Foreign Nationals

For foreign nationals, the practical impact is more direct. Anyone whose underlying nonimmigrant status has already expired and who is relying on a pending application, even with valid work authorization or advance parole in hand, should understand that domestic air travel currently carries a documented detention risk. Individuals relying on a pending application should weigh whether domestic travel is necessary until more information is available about the scope and drivers of this enforcement trend. This is distinct from international travel risk, which involves separate considerations relating to advance parole, visa validity, and US Customs and Border Protection review at reentry.

Action Items for Employers

• Advise Employees of Risk.  Advise any employee whose status has expired, even if they have a pending application, Employment Authorization Document (EAD), or Advance Parole Travel Document (AP) (hereinafter collectively Impacted Employees) that domestic air travel poses a risk of detention. Employers should also advise employees in valid visa status to carry original or printed documentation demonstrating they are in valid status.
• Strongly Caution Impacted Employees Against Travel. Employers should strongly caution Impacted Employees to avoid domestic air travel if at all possible.
• Consider Upgrading to Premium Processing. If premium processing is available for the pending application, consider whether to upgrade any pending application to premium processing prior to the employee’s I-94/status expiration to obtain an approval so DHS computer systems are updated to show valid status consistent with the approval and new I-94.
• Review Process/Legal Consultation. Employers may wish to consider whether they want to implement a consultation or review process prior to air travel for any Impacted Employees. Your KILP attorney can review immigration status and assess risk with the employer and employee before any travel plans are finalized.

Action Items for Employees

• Postpone Non-Essential Flights. Impacted Employees should postpone non-essential flights until they have documentation showing valid visa status if at all possible.
• Carry Proper Evidence. Employees in valid status should carry proper printed or original evidence of valid visa status. If air travel is unavoidable, Impacted Employees should carry immigration evidence including USCIS approval/receipt notices, I-94 printouts, EAD, AP/travel documents. It is not sufficient to have evidence on your phone or laptop; any documentation should either be original or printed.
• Consult Legal Counsel. Your KILP attorney can help review your individual situation, evaluate risk, determine appropriate documentation, and determine whether there are options to mitigate risk.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.