On Feb 25 2008 by H. Ronald Klasko

Travel Issues for Foreign Nationals

Although the world may be getting smaller and the economy more international in scope, U.S. immigration laws have never created more hazards for travel by foreign nationals. This update will focus on some of the main issues confronted by various categories of foreign nationals who need to travel in and out of the United States.

I. Foreign Nationals Needing Visas

With certain exceptions, especially Canadian nationals and visitors for three months or less from visa waiver countries, foreign nationals require a visa in order to enter the United States. Visas are issued by U.S. Consuls outside of the U.S.

When a foreign national who is in the United States on a visa needs to leave the United States, he or she must consider the following issues:

A. If the previously issued visa has expired, the individual will be required to obtain a new visa before returning to the U.S. In some cases, that requires a petition approved by the USCIS prior to application for the visa overseas. However, even approval of a petition by the USCIS does not guarantee visa issuance. With the exception of applicants for visas in the employment-based H-1B, L, E and O categories, the foreign national must prove to the satisfaction of the consular officer that he or she has a residence outside the U.S. to which he or she intends to return. This can be especially problematic when the applicant has taken steps to obtain permanent residence, but not completed the process; when the applicant has been in the United States for a prolonged period of time; or when the applicant’s country has a history of its nationals not returning to that country.

B. Another question is whether a foreign national previously in the U.S. can apply for a visa in the country to which he is traveling. Any foreign national who had a period of ‘unlawful presence’ in the United States is required to obtain all future visas at the U.S. Consul in his or her country of nationality or permanent residence. In addition, any previously issued visa in that foreign national’s passport is considered void. What constitutes ‘unlawful presence’ is exceedingly complex, but it includes remaining in the U.S. for any period of time beyond the expiration date on the I-94 Departure Record issued upon arrival (or any extension thereof). Students or exchange visitors admitted not for a specific date, but for ‘D/S’ (Duration of Status), are not considered to accumulate unlawful presence unless the CIS or an immigration judge has
issued a ruling that they have violated their status. Because of this bar to visa issuance, applicants for visas in a country other than their own may be required to prove their previous lawful presence in the U.S. prior to being issued visas. In some instances, a foreign national appearing at the U.S. Consul in a country other than his or her own who has been unlawfully present in the U.S. may be able to obtain a visa without returning to the home country through an ‘extraordinary circumstances’ waiver, which would allow the visa to be issued by the U.S. Consul in the third country.

C. The concept of ‘unlawful presence’ can have even worse ramifications if the foreign national has been in the United States in ‘unlawful presence’ for a period exceeding 180 days. In such event, the foreign national will not be able to return to the United States for three years (10 years if the period of unlawful presence exceeds one year).

D. An additional travel hazard was introduced by the change in the immigration laws in 1996. The new law introduced the concept of ‘expedited removal,’ which allows CBP inspectors at ports of entry to make unreviewable determinations of who can be admitted to the United States. If the inspector does not believe that the foreign national is entitled to enter, even if the foreign national presents a visa, the inspector can effectuate the foreign national’s removal from the United States immediately. In such event, the foreign national is barred from re-entering the United States for five years.

E. A foreign national travels to Canada or Mexico, she can return to the U.S. without a valid visa, if she presents documents to prove she is in valid F, J, H, L, E or O status and that she traveled for 30 days or less and visited no other country. However, if she applies for a visa at a U.S. Consulate in Canada or Mexico, she cannot return to the U.S. unless and until the visa is issued.

F. Every time a foreign national applies for a visa, he is subject to security clearances. These clearances can sometimes create long delays in visa issuance. Delays are likely to be longer for nationals of countries considered to be havens for terrorists, for nationals with a criminal history and for nationals with access to certain technologies.

II. Permanent Resident Applicants

Applicants for permanent residence can obtain such status either through adjustment of status at a CIS office in the United States or through immigrant visa processing at a U.S. Consul outside of the United States.

Applicants for adjustment of status cannot leave the United States during the pendency of the adjustment of status application unless they first obtain an advance parole travel document or unless they maintain valid H or L status. Advance parole travel documents can be issued for any bona fide reason. The time period to obtain such travel documents is usually two to three months. Travel outside of the United States without such an advance parole document for non-H or L visa holders results in the abandonment of the application for permanent residence. Although travel with advance parole is usually safe, assuming that the individual returns prior to the expiration of the advance parole document, if the foreign national had accumulated 180 days of unlawful presence prior to filing the application for permanent residence, any departure from the U.S. – even with advance parole – triggers the three year or 10 year bar, which could result in the denial of the application for permanent residence.

III. Permanent Residents

Upon obtaining permanent residence status, the foreign national is free to travel in and out of the United States. However, there are some restrictions. Absence from the United States of one year or more results in abandonment of permanent residence status. Abandonment can be avoided if the foreign national applies for a re-entry permit prior to leaving the United States and returns to the United States within two years. The re-entry permit can be granted upon a proper showing of reasons for extended overseas travel that do not reveal relinquishment of intent to reside permanently in the United States in the future. Applicants should prove that they have maintained some indicia of permanent residence, which should include (at a minimum) the filing of annual tax returns as residents of the U.S. Other factors include the emergency or temporary nature of the reason for being overseas, maintenance of a place of residence in the U.S., bank accounts in the U.S., future job prospects in the U.S. and other evidence of ties to the U.S. Unlike the advance parole travel document, the re-entry permit need not be obtained prior to travel – it must only be applied for while in the United States. It is possible to obtain a new re-entry permit upon the individual’s return to the United States. The first new permit can be for a period of two years, but further permits will only be issued for one year at a time.

Returning to the U.S. after an absence of less than a continuous period of one year does not require a re-entry permit. However, a re-entry permit may be advisable in certain circumstances. For example, if a foreign national’s travel reveals a pattern over a period of years of spending most of his or her time outside of the U.S., a re-entry permit may be suggested. Also, a foreign national who is outside of the U.S. for 6 months or more consecutively is more likely to be questioned upon re-entry as to whether he or she has maintained a residence in the U.S.

IV. Naturalization Applicants

Five years after obtaining permanent residence status (three years for a foreign national married to and living with a U.S. citizen), the foreign national can apply for naturalization in order to become a citizen of the U.S. Travel issues are also critical for this process, and the rules are completely independent and separate from the rules for maintaining permanent residence status.

Naturalization applicants must prove that they maintained permanent residence in the United States for the required period of five (or three) years. Naturalization applicants must also prove that they have never had a continuous period of one year or more outside of the United States since becoming permanent residents (whether or not a re-entry permit was obtained). A continuous period of six months or more outside of the United States raises a presumption of discontinuance of residence for naturalization purposes, but this presumption can usually be rebutted by evidence of an intention to maintain residence in the U.S. In very limited circumstances, including employment overseas under U.S. government contract or with an American company engaged in foreign commerce, the foreign national can apply to the USCIS to preserve U.S. residence even for an absence greater than one year; however, this application can only be made if the applicant was physically present in the U.S. for one continuous year after obtaining permanent residence and immediately prior to requesting preservation of residence.

In addition to proving five (or three) years’ residence, the naturalization applicant must prove that he or she has been physically present in the United States for at least one half of the days during the qualifying time period. Although the re-entry permit application protects against loss of permanent residence status, it has no impact whatsoever on the naturalization process. Therefore, irrespective of the reasons for being outside of the United States, if the individual cannot prove that he or she meets the physical presence requirement, the individual cannot be naturalized. Finally, the naturalization applicant must prove residence in the state in which she is applying for at least three months. This requirement is not a physical presence requirement and can be met even if the applicant is presently living outside of the U.S.