Are your employees traveling overseas for the holidays? Know the immigration risks.

6 Dec, 2019

As the holiday season approaches and your employees begin requesting time off for vacation and international travel, it’s important that your foreign employees are aware of immigration-related requirements and the consequences of heading overseas for the holidays.

Employees who were selected in this past April’s H-1B lottery and have an approved H-1B may wish to use holiday travel to obtain a new visa stamp abroad. This is because many employees have changed their status to H-1B status as of Oct. 1 and therefore must have a new visa to travel. In order to return to the U.S. and continue their employment, these employees must first obtain an H-1B visa at a U.S. Consulate in their home country or a third country. This process—and how long it takes to complete—varies from consulate to consulate and requires planning to ensure employees are able to complete the process and return to work without business disruption.

Employees whose H-1B petition is still pending may or may not be advised to travel, depending on their specific circumstances. Employees who have applied for a change of status that is still pending should not travel until the application is approved. Employees with pending extension of status applications, however, are normally permitted to travel before the application is approved.

Some employees may have family members who are planning to travel abroad without them. Spouses and children of an employee (the principal visa holder) should be sure to carry proof that the employee is maintaining status in the U.S., typically in the form of the employee’s approval notice, an employment confirmation letter and paystubs.

Employees who are in the green card process may not be able to travel internationally, or, depending on their current status, may face scrutiny of their nonimmigrant intent if they apply for a visa or re-admission. Some employees with a pending Form I-485 application to adjust their status to permanent resident may be required to obtain a separate travel document, called advance parole, before departing the U.S. to preserve their green card application. Most valid H-1B holders are permitted to travel without needing to apply for advance parole.

Upon returning to the U.S., it is critical that employees provide their BAL attorney with their new I-94 information. The I-94 document controls the employee’s authorized period of stay in the U.S. regardless of what the employee’s visa or I-797 approval notice says. It is not uncommon for an immigration officer to make incorrect notations on an I-94, and a BAL attorney should review the details on the employee’s I-94 as soon as possible to ensure that they are accurate.

As employees prepare for their vacations, they are reminded to factor in plenty of time to navigate any immigration-related issues with their BAL attorneys before finalizing their travel plans.

Emily Callan is an Associate Attorney in the McLean office of Berry Appleman & Leiden LLP.

The information contained here is meant to be informational, and while BAL has made every effort to ensure the accuracy of the information, it is not promised or guaranteed to be complete. Readers of this information should not act upon any information contained on this alert/blog without seeking professional counsel. This alert does not constitute legal advice or create an attorney-client relationship. Any reference to prior results, does not imply or guarantee similar future outcomes.