Domestic Travel Alert: Pending Immigration Applications Do Not Eliminate Risk of ICE Detention!

We previously reported a troubling new trend of Immigration Customs Enforcement (ICE) apprehending and detaining foreign nationals at domestic airports despite their having a pending immigration application and even an employment authorization document (EAD). Unfortunately, we continue to see clients apprehended at domestic airports even when they have a pending immigration application and presumably pose no security concerns because they have no prior arrests, nor any prior removal orders.  

If your underlying immigration status has expired (e.g. B-2, H-1B, F-1, etc.), do not assume that a pending application, receipt notice, or employment authorization document (EAD) makes domestic air travel safe any longer. Depending on the filing, the pending application may permit you to remain in the U.S., to work lawfully, and even prevent you from accruing unlawful presence, but that is not necessarily the same as holding an approved lawful immigration status. In recent months, ICE expanded their immigration enforcement to include such cases, even if the individual has “done everything right.” 

Examples of travelers who should avoid flying domestically at this time include:  

• A person who has a pending change of status or extension of status (I-539 or I-129), but for whom the underlying nonimmigrant status (I-94) has expired 

• A person with a pending asylum application (I-589) whose prior nonimmigrant status (I-94) has expired. 

• A person with a pending family-based or employment-based I-485 adjustment-of-status application whose prior nonimmigrant status (I-94) has expired, even if they have an EAD 

• A person with a pending U visa (I-918) or VAWA (I-360), if their prior nonimmigrant status (I-94) expired or they never had any lawful nonimmigrant status 

• A person with any other pending immigration applications, if their prior nonimmigrant status (I-94) expired or they never had any lawful nonimmigrant status 

If your underlying status has expired, or you never had any lawful nonimmigrant status in the first place, avoid nonessential domestic air travel until you have consulted immigration counsel about your specific circumstances. If travel cannot wait, ask counsel what documents to carry and how to prepare for possible detention.