Domestic Air Travel Alert for H-1B, L-1, TN, and Other Employment-Based Foreign Nationals

Domestic travel has often been treated as routine by foreign national employees and their employers. A flight from Chicago to Dallas or New York to California does not involve leaving the United States, applying for a visa, or requesting admission at a port of entry. Recent reports of immigration enforcement activity at U.S. airports, however, are an important reminder that domestic air travel is not free from immigration risk. 

Immigration attorneys around the country have reported encounters and detentions involving foreign nationals at domestic airports. Some affected travelers reportedly had pending immigration applications, valid employment authorization documents, or other evidence that they were permitted to remain in the United States while a case was pending. Although no single new rule or formal policy change has been identified as the cause of these reports, employers and foreign national employees should reassess travel plans, particularly when the employee’s most recent Form I-94 has expired. 

Why Sponsored Foreign Workers Should Pay Attention Even if They Did Everything Right 

This new domestic travel risk is not limited to undocumented travelers. It may also affect H-1B, L-1, TN, O-1, E-1, E-2, and other employment-based workers whose underlying nonimmigrant status has expired while a timely filed extension or change-of-status petition remains pending. There are several examples where an individual may have done everything right, yet remains at risk under this new paradigm.  

Employees with a timely-filed extension of status: 8 C.F.R. § 274a.12(b)(20) applies to most employer-sponsored nonimmigrant extensions of stay, including many extensions for H-1B, L-1, TN, O-1, E-1, E-2, and other qualifying workers, and states that these employees “are authorized to continue employment with the same employer for a period not to exceed 240 days beginning on the date of the expiration of the authorized period of stay.” When the same employer timely files a qualifying extension request before the employee’s current work authorization expires, the employee may generally continue working for that employer for up to 240 days while USCIS adjudicates the extension, or until USCIS issues a decision, whichever occurs first. This 240-day extension automatically extends their work authorization and prevents the accrual of unlawful presence, but their Form I-94 has not yet been extended, subject to USCIS review.  

Employees with a timely-filed change of status: Similarly, person whose timely filed change-of-status request remains pending after the expiration of the Form I-94 is likewise generally considered to be in a period of stay authorized by the Department of Homeland Security while USCIS adjudicates the request. That authorized-stay period ordinarily prevents the accrual of unlawful presence while the timely filed request is pending, but it does not itself confer lawful nonimmigrant status, authorize employment. If USCIS denies the change-of-status request, the person is generally considered to have been out of lawful status beginning when the prior nonimmigrant status expired, even though the pending request provided a period of authorized stay through the date of adjudication. See USCIS Policy Manual, Volume 7, Part B, Chapter 3, Sections D-E. 

Employees with a pending I-485 application, but no underlying nonimmigrant status: A common misconception is that a pending I-485 adjustment of status application continues to hold lawful nonimmigrant status. That is not always the case. A timely filed I-485 may provide a period of authorized stay and, in some situations, continued employment authorization, but those protections do not necessarily extend the underlying nonimmigrant status. Similarly, an Employment Authorization Document (EAD) is evidence of permission to work; it is not, by itself, proof of lawful immigration status.  

IMPORTANT: Expired visa stamps do not impact I-94 status. It is also important to distinguish the expiration date on a visa stamp from the expiration date on Form I-94. A visa stamp placed in a passport is principally a travel document that permits the holder to request admission to the United States during the visa’s validity period. It does not determine how long the person may remain in the United States after admission. The Form I-94 issued at admission, or subsequently extended or replaced by USCIS, generally controls the authorized period of stay and the person’s nonimmigrant classification inside the United States. Accordingly, expiration of an H-1B, L-1, O-1, E, or other visa stamp while the person is already in the United States does not, in and of itself, terminate or jeopardize valid nonimmigrant status, provided the Form I-94 remains unexpired and the person continues to comply with the terms of that status. An expired visa stamp may become relevant if the person leaves the United States and needs a valid visa to request readmission, subject to limited exceptions such as automatic visa revalidation. 

The bottom line is that foreign nationals who have an expired Form I-94, even if they are lawfully pursuing an extension of status, a change of status, or an I-485 adjustment of status, are now at risk of additional scrutiny at the airport and even possible immigration detention.  

Who Should Exercise Particular Caution 

Every case requires an individual assessment, but domestic air travel may present heightened risk for an employment-based foreign national who: 

• Has an expired Form I-94 and is relying on a pending extension-of-status, change-of-status petition; 

• Has a pending adjustment-of-status application but no separate, unexpired nonimmigrant status; 

• Holds a valid EAD but does not have independent lawful immigration status; 

• Has a prior removal order, pending removal proceedings, a missed immigration hearing, or a prior immigration-enforcement encounter; 

• Has an unresolved status violation, unauthorized employment issue, arrest, criminal matter, or other complication in the immigration record; 

• Entered without inspection or lacks documentation establishing a current lawful status; or 

Employees should not assume that a domestic flight is safe simply because the itinerary never leaves the United States. Domestic travel is different from international travel, but it can still create an opportunity for contact with immigration enforcement. 

Practical Steps for Foreign National Employees 

Before booking a domestic flight, foreign national employees should confirm the expiration date on their most recent Form I-94 and identify the legal basis for their continued presence and employment. The visa stamp in a passport is not the controlling document for the authorized period of stay inside the United States; the Form I-94 generally controls that period. 

Employees with expired I-94 records, pending immigration filings, or complicated immigration histories should consult immigration counsel before traveling. If the trip is not essential, postponing air travel until an extension or change-of-status petition is approved may be the most prudent option right now. 

Travelers should carry valid government-issued identification and paper copies or originals, as appropriate, of relevant immigration documents. Depending on the case, those materials may include the current Form I-94, Form I-797 approval notice, Form I-797 receipt notice for a pending petition, EAD, advance parole document, and counsel’s contact information. Important evidence should not be stored only on a telephone or laptop, which may be inaccessible during an encounter. 

Carrying documents cannot eliminate the possibility of questioning or detention. It may, however, help the traveler accurately explain the current immigration posture and allow counsel to respond more quickly if a problem arises. 

What Employers and Human Resources Teams Should Do 

Where premium processing is available, employers and counsel may consider whether upgrading a pending petition could reduce the period during which the employee is relying on a pending case after I-94 expiration. Premium processing is not necessary or appropriate in every matter, and an expedited decision does not guarantee approval, but it may be a useful risk-management option in an otherwise approvable case. Additionally, USCIS has recently ignored premium processing requests in some instances, so relying on premium processing may not always alleviate the risk. Nevertheless, we do recommend using premium processing in most of our cases. 

Employers may also wish to implement a pretravel review procedure for sponsored employees whose underlying status has expired or whose immigration histories present additional concerns. Managers should be prepared to consider remote participation, postponement, or alternative staffing when business travel is not essential.  

A Domestic-Travel Review Should Be Separate From an International-Travel Review 

The questions presented by domestic and international travel are different. International travel may implicate visa validity, consular processing, petition abandonment, advance parole, and inspection by U.S. Customs and Border Protection when the traveler seeks to return. Domestic travel ordinarily does not involve a new application for admission. The recent reports nevertheless demonstrate that a traveler may encounter immigration authorities inside the United States, especially at transportation hubs. 

For that reason, an employee who has been advised not to travel internationally should not automatically conclude that domestic air travel is risk-free. The employee should ask counsel to evaluate domestic travel separately. 

The Bottom Line 

Most employment-based foreign nationals with unexpired I-94 records and straightforward immigration histories will continue to complete domestic trips without an immigration incident. The appropriate response is not panic, but preparation and individualized review. 

The greatest concern is for travelers whose underlying nonimmigrant status has expired and who are relying on a pending petition, adjustment application, EAD, advance parole document, or another form of authorized stay. Those individuals should carefully consider whether a flight is necessary and obtain legal advice before traveling. Employers should review upcoming expirations, communicate with sponsored employees, and build immigration review into domestic business-travel planning. 

Immigration-enforcement practices can change quickly. Foreign nationals and employers should seek case-specific advice before finalizing travel when there is any uncertainty regarding the employee’s status, authorized stay, work authorization, or immigration history.