Recent reports indicate that U.S. Immigration and Customs Enforcement (“ICE”) has increased enforcement activity at airports across the United States, including in connection with domestic air travel.
What Is Being Reported?
Reports describe non-citizens being questioned or detained at airport check-in counters, boarding gates, and arrival areas. Although many incidents have involved individuals with expired status, prior removal orders, or other immigration violations, reports have also involved travelers with pending applications for asylum, adjustment of status, employment authorization documents, or other pending or ongoing immigration filings or proceedings.
These incidents have occurred in connection with both domestic and international travel and at multiple airports throughout the United States. The recent arrests and incidents appear to be an expansion of an arrangement between the Transportation Security Administration (“TSA”) and ICE.
Pending Applications and Employment Authorization
Individuals may be permitted to remain in the United States while certain immigration applications are pending, even after their underlying status expires. However, a pending application or valid employment authorization document, by itself, does not necessarily eliminate the risk of questioning or enforcement activity during travel.
Accordingly, individuals whose prior status has expired may face increased risk even if they have a pending extension, change-of-status, asylum, or adjustment application.
Who May Face Heightened Risk?
Travel-related risk may be greater for individuals who:
Have expired or terminated immigration status;
Are relying on a pending immigration application;
Have a prior removal order or immigration violation;
Entered without inspection or were paroled into the United States;
Have an arrest, citation, or criminal history; or
Have inconsistencies in prior immigration filings or travel records.
The level of risk is highly fact-specific and depends on the individual’s complete immigration history.
Domestic and International Travel
Domestic air travel does not ordinarily involve an application for admission to the United States. However, travelers may still encounter immigration officers at an airport, and presenting valid identification or an employment authorization document does not guarantee that an individual will not be questioned or detained.
International travel involves a separate immigration inspection upon return to the United States. Travelers using a visa or advance parole may be referred for additional questioning, and any concerns regarding admissibility, prior immigration history, or eligibility for the requested admission or parole may be addressed during that inspection.
D&S Recommendation
Foreign nationals planning to undertake domestic and international air travel should consult with immigration counsel in advance to confirm that their current status, immigration history, pending applications, and travel documentation do not present any identifiable concerns. Individualized review is particularly important for those with prior immigration or criminal issues.
Before traveling, individuals should confirm that their passport, visa, I-94 record, approval notices, and any required travel documents remain valid and should carry copies of relevant immigration documentation.
D&S will continue monitoring these developments and will provide further updates as additional information becomes available.
This alert is for general informational purposes only and does not constitute legal advice. Please consult D&S immigration counsel regarding your specific circumstances. D&S Senior Associate, Paulina Baginska, assisted with the preparation of this alert.