Before making international travel plans, foreign nationals (with the exception of Canadians) must have a valid visa in their passports (preferably multiple-entry) to re-enter the United States. People who did not previously obtain a visa in connection with their current nonimmigrant status (had "change of status"), or whose visa has expired, will need to apply for an appropriate visa at the U.S. Consulate in their home country (and may need to submit a visa application and schedule a visa appointment before they depart the USA). The only exception is for visits to Mexico or Canada for less than 30 days under the visa revalidation rule. People traveling internationally must also have a valid and unexpired passport (or other travel document).
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U.S. Consulates' visa processing procedures and times vary. Visa applicants should check the website of the Consulate where they plan to apply for their visa to obtain the most accurate information. Due to the increased security and mandatory interviews at most Consulates, visa issuance processing times are unpredictable and could be delayed.

Please visit the U.S. Department of State for information regarding current visa appointment and processing wait times for each Consulate. We recommend a minimum of three to four weeks for the visa process.
Foreign nationals in the United States, who have a pending “change of status” or "extension of status" petition (from one nonimmigrant classification to another, or extension of the status in the same visa category) must remain in the United States until adjudication on their petition is complete. Foreign nationals who travel abroad while an application for change of nonimmigrant status is pending are considered to have abandoned their change of status portion of the petition.

Similarly, a pending advance parole application could be deemed abandoned and denied under recent policy changes. Please keep this in mind because in the past the situation was very different.

Foreign national employees should inform their U.S. employers regarding their plans to travel outside of the United States, and provide their departure and return dates and the countries to which they plan to travel. If possible, employers should provide employees with an employment verification letter that confirms the employee’s continued/current employment based on an approved nonimmigrant visa petition. This letter should be provided before employees depart the United States.

It is important to remember that the I-94 record expiration date governs the foreign national employee’s period of authorized stay in the United States. If an employee’s passport expires before the end date of the work authorization, status may be limited to the expiration date of the passport. If that occurs, the employee will need to renew the passport and travel outside of the country with a valid visa (prior to the expiration date noted on the I-94 record) to obtain a new I-94 record for the full period of stay authorized by the I-797 approval notice. Upon re-entry to the U.S., employees should obtain a copy of their admission record at the U.S. Customs and Border Protection site to ensure the entry information is correct.
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Finally, the U.S. Supreme Court has ruled that President's third travel ban, impacting eight countries, is to be fully enforced, effective December 8 2017, while legal challenges in lower courts are pending. While this ban exempts certain individuals, caution should be taken by nationals of the following countries before traveling: Syria, Libya, Iran, Yemen, Chad, Somalia, North Korea and Venezuela.

The American Immigration Lawyers Association’s Customs and Border Patrol Office of Field Operations Liaison Committee released new guidance (ed. 03-22-2017) on the due process rights of lawful permanent residents (LPRs, or Green Card holders) at U.S. ports of entry.  It is important that LPRs understand their rights when attempting to enter the country, especially in this new age of increased immigration enforcement. Nonimmigrants applying for admission to the United States may have even less rights at the border.

Rights of LPRs at Ports of Entry

Upon return to the United States from travel abroad, Lawful Permanent Residents (LPRs) have certain due process rights, including the right to a hearing before an immigration judge before they can be stripped of their permanent resident status. In addition, given the increasing reports of CBP inspection of traveler’s electronic devices and/or social media accounts, it is important for members to advise LPR clients of the risks of refusing such a request.

Due Process Rights of LPRs (lawful permanent residents)

LPRs enjoy greater due process rights than nonimmigrants when returning to the United States after travel abroad. Like all international travelers, upon return, LPRs are subject to inspection by CBP. CBP may question and screen LPRs to determine whether they are a “returning resident” or whether they should be treated as an “arriving alien.”

Under INA §101(a)(13)(C), a returning resident shall not be regarded as seeking “admission” to the United States, (i.e., shall not be treated as an arriving alien), unless he or she:

• Has abandoned or relinquished LPR status;
• Has been absent from the United States for a continuous period in excess of 180 days;
• Has engaged in illegal activity after having departed the United States;
• Has departed from the United States while under legal process seeking removal of the alien from the United States, including removal proceedings under the INA and extradition proceedings;
• Has committed an offense under INA §212(a)(2) [criminal and related grounds of inadmissibility], unless since such offense the alien has been granted relief under INA §212(h) [waiver of inadmissibility] or §240A(a) [cancellation of removal for permanent residents]; or
• Is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the United States after inspection and authorization by an immigration officer.

An LPR who is deemed to be seeking admission may be charged as removable from the United States as an arriving alien. LPRs that are charged as removable, including those who are alleged to have abandoned their U.S. residence, have the right to a hearing before an immigration judge. See Matter of Huang, 19 I&N Dec. 749 (BIA 1988). Despite this, CBP may attempt to convince an LPR that their absence from the United States resulted in automatic abandonment of their U.S. residence, and urge them to sign a Form I-407, Record of Abandonment of Lawful Permanent Resident Status. As AILA recently advised, an individual does not lose LPR status merely because of time spent abroad. An LPR remains an LPR unless the government proves abandonment by clear, unequivocal, and convincing evidence and until an order of removal is issued and becomes final.

Form I-407 must be signed voluntarily and there are no negative consequences if an LPR refuses to sign the form. Neither failure to sign nor abandonment of LPR status by itself is grounds for detention by CBP. If CBP makes a determination, by a preponderance of the evidence, that the LPR abandoned his or her residence in the U.S., and the LPR refuses to sign a Form I-407, CBP’s only recourse is to issue a Notice to Appear (NTA) before an immigration judge. Even LPRs who have signed a Form I-407 retain the right to request a hearing before an immigration judge to determine whether LPR status was abandoned. See Matter of Wood, No. A24-653-925 (BIA 1992). Should CBP confiscate the LPR’s permanent resident card, the LPR has the right to alternative evidence of LPR status, such as an I-94 card and/or passport stamp.

CBP Search of Electronic Devices and Social Media Accounts

In 2009, CBP released to the public its current policy on searches of electronic devices. This policy states that all electronic devices, including those belonging to U.S. citizens, can be searched at a port of entry “without individualized suspicion.” There appear to be only very narrow limitations to the scope of CBP’s search authority. For example, section 5.2.1 indicates that privileged material, such as attorney/client communications, while not necessarily exempt from a search, may be subject to special handling procedures which require approval from CBP Associate/Assistant Chief Counsel.
CBP’s right to conduct suspicion-less searches of persons and conveyances has long been upheld by the Supreme Court as a “border search exception” to the 4th Amendment. While the 4th Amendment to the Constitution guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” the Supreme Court held in Carroll v. United States, 267 U.S. 132 (1925), that it is “reasonable” to conduct border searches without a warrant due to national security interests.

CBP’s policy of conducting suspicion-less searches of electronic devices has not yet been meaningfully challenged. Following the publication of the 2009 guidance, the Supreme Court held, in Riley v California, 134 S. Ct. 2473 (2014), that the police may not search and seize the digital contents of a person’s cell phone or electronic device, incident to an arrest, without first obtaining a search warrant.  In arriving at this conclusion, the Court noted that cell phones have become “such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” Riley, 134 S. Ct. at 2484. The ability of modern cell phones to contain the digital sum total of one’s “papers and effects,” the Court held, makes police searches of these devices unreasonable without a warrant. This ruling, however, only applies to arrests occurring in the interior of the United States and does not address arrests or searches at the border. Though this issue could be considered by a federal court, given the dire consequences to a foreign national who refuses to submit to such a search (including expedited removal), it is more likely that this issue will be pursued by a U.S. citizen who does not consent and is willing to litigate the matter.

A subsidiary issue to warrantless searches of cell phones and electronic devices is whether CBP may access an individual’s social media accounts. In 2016 CBP began collecting social media identifiers from Visa Waiver travelers through changes to the ESTA application. While the ESTA form makes this question optional, and only asks for social media “identifiers,” (as opposed to “passwords”) so that CBP can presumably view the traveler’s public information, AILA has received several reports of CBP officers requesting log in information so that they can view private social media accounts and messages. While the CBP electronic device search policy has not been updated to address this specific situation, it appears that CBP may view this information as falling within the “border search exception” to the 4th Amendment. For more information, see CBP Inspection of Electronic Devices Tear Sheet.

If a U.S. citizen refuses to consent to a search, CBP may do one of several things, including any of the following or a combination of the following:

• Detain the person until he or she consents.
• Have the person arrested for obstruction of justice.
• Let the person go and seize the device in question.

The CBP policy on search of electronic devices provides that CBP officers (with supervisory approval) make take physical possession of an electronic device either (a) when, upon a search of such a device, with or without suspicion of wrongdoing, a CBP officers discovers probable cause to seize it; or (b) when officers have “technical difficulties” in searching the device, such that technical assistance is required to continue the border search. In the latter case, inability to unlock the device due to non-consent could be deemed a “technical difficulty” justifying detention of the device. The policy provides that devices shall generally be returned within five days, but devices may be kept for up to 15 days and extensions beyond 15 days can be approved in 7-day increments thereafter. While CBP policy is to carefully record information about these detentions in its records, the policy sets no maximum period after which a device is required to be returned to its owner.

If an LPR or nonimmigrant refuses to consent to a search, CBP could follow any of the courses of action outlined in the previous paragraph with regard to U.S. Citizens and may, in addition, refuse a nonimmigrant admission to the United States and/or utilize the agency’s expedited removal authority. See generally, INA §235 and 8 CFR Part 235.

Right to Counsel (right to an attorney)

CBP has long held that there is no “right to counsel” during the inspection and admission process, although attorneys are sometimes permitted, at the agency’s discretion, to accompany clients who are detained in secondary inspection and/or are ordered to appear at a deferred inspection office. This interpretation is supported by 8 CFR §292.5(b) which applies generally to all immigration proceedings and states:

(b) Right to representation. Whenever an examination is provided for in this chapter, the person involved shall have the right to be represented by an attorney or representative who shall be permitted to examine or cross-examine such person and witnesses, to introduce evidence, to make objections which shall be stated succinctly and entered on the record, and to submit briefs. Provided, that nothing in this paragraph shall be construed to provide any applicant for admission in either primary or secondary inspection the right to representation, unless the applicant for admission has become the focus of a criminal investigation and has been taken into custody. 

In addition, the CBP Inspector’s Field Manual, at chapter 2.9, states:

Dealing with Attorneys and Other Representatives. No applicant for admission, either during primary or secondary inspection has a right to be represented by an attorney – unless the applicant has become the focus of a criminal investigation and has been taken into custody. An attorney who attempts to impede in any way your inspection should be courteously advised of this regulation. This does not preclude you, as an inspecting officer, to permit a relative, friend, or representative access to the inspectional area to provide assistance when the situation warrants such action. he Inspector’s Field Manual (“IFM”) is no longer relied upon as an official source of agency guidance and has been at least partially replaced by the CBP Officer’s Reference Tool (ORT). The ORT is the subject of FOIA litigation and has not yet been released. Nevertheless, the IFM guidance appears to comport with current agency practice.  (Emphasis added).

Should CBP choose to issue an NTA and initiate removal proceedings, INA §101(a)(27) states that there must be at least ten days between service of the NTA and the first removal hearing. However, the issuance of an NTA does not impose upon CBP an obligation to allow the individual to speak with an attorney while being held in a CBP facility, “unless the applicant has become the focus of a criminal investigation and has been taken into custody.” In addition, should CBP detain and hold the person until Immigration and Customs Enforcement (ICE) takes him or her into custody pending a bond hearing, the right to counsel would then attach, as the individual would no longer be an applicant for admission.

​You can view updated Know Your Rights Guidance here.

​If you need legal advice, want to schedule a consultation or want to hire an attorney, please email us and we will get back to you to schedule the best time to talk on the phone or video chat.
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When a person is arriving at the U.S. border and applying for admission to the United States, the CBP officers are required to determine the nationality or citizenship of each applicant for admission (including U.S. citizens).

When a a non-U.S. citizen applies for admission to USA, a decision is made by the CBP officer as to whether the applicant is admissible to the U.S.A. or inadmissible and should be removed or not allowed to enter the U.S. 

Even a lawful permanent resident returning to the U.S. after an extended stay abroad, in certain situations can be questioned as a person applying for admission.

All travelers to the U.S.A. should know the following:

1. Border Search Authority. Federal regulations are clear regarding CBP’s authority to conduct a search: “All persons, baggage, and merchandise arriving in the Customs territory of the United States from places outside thereof are liable for inspection and search by a Customs officer.” For those traveling to the U.S. in a vehicle, a CPB officer may stop, search, and examine any vehicle or search any trunk wherever found.  However, CBP cannot conduct intrusive searches (such as strip searches) or repeated detentions unless there is a “reasonable suspicion” of an immigration violation or crime.  Additionally, CBP’s policy requires that all searches be “conducted in a manner that is safe, secure, humane, dignified, and professional.”
2. Electronic Devices Search (smartphones, laptops, tablets). CBP’s border search authority also includes the right to examine electronic devices, such as computers, disks, hard drives, cell phones, and other electronic or digital storage devices, without “reasonable suspicion”. CBP officers conduct border searches of electronic devices to determine whether a violation of U.S. law has occurred.  While the U.S. Supreme Court has ruled that a warrantless search and seizure of digital contents of a cell phone during an arrest is unconstitutional in violation of the Fourth Amendment right against unreasonable searches and seizures, there appears to be an exception for individuals desiring to enter the U.S.  If your electronic device is seized for further examination, which may include copying of data, you will receive a written receipt (Form 6051-D) that details what item(s) are being detained, who at CBP will be your point of contact, and the contact information (including telephone number) you provide to facilitate the return of your property upon completion of the examination.  Unless extenuating circumstances exist, the detention of devices should not exceed 5 days.
3. Discrimination and Coercion. An individual may not be searched on any discriminatory basis (e.g. race, gender, religion, ethnic background).  Nevertheless, a search based on consideration of citizenship or travel itinerary that includes a narcotics source or transit country is not deemed  unlawful. Additionally, CBP cannot threaten a person being questioned; if there is coercion, any statements obtained may be excluded in a subsequent removal proceeding under the Due Process Clause.  You can file a complaint with the Office of Civil Rights and Civil Liberties within the U.S. Department of Homeland Security if you believe there has been improper discrimination, inappropriate questioning, or other civil rights and civil liberties violations.
4. Right to Attorney. Any applicant for admission (including U.S. citizens) is not entitled to representation in primary or secondary inspections, unless he or she has become the focus of a criminal investigation and has been taken into custody. Foreign nationals attempting to come to the United States, either temporarily or permanently, have very few rights during the application and screening process.
5. Right to Remain Silent, But Be Prepared to Answer Questions. Even though you have the right to remain silent, if you don’t answer questions to establish your citizenship, officials may deny entry to the U.S. or detain you for a search and/or questioning. CBP officers can ask people applying for admission to the U.S. almost any question.  If you choose not to answer all or some of the questions, you can be denied admission to the U.S. or delayed by the CBP officer if selected for secondary inspection, search of your electronic devices. Make sure you can answer the following questions:

• What is the purpose of your visit? (what do you plan to do in USA)
• Where will you be staying? (address)
• Who will you be visiting? (name, address, contact phone number)
• How often do you travel to the U.S.? (for example, how many times a year; every 3 months)

When a non-US citizen applies for admission to the U.S., it’s important to be clear that your purpose for the visit to U.S.A. must be consistent with the visa category held. For example, if you are arriving on a tourist or visitor's visa, the purpose of the visit is to engage in tourist activities or visit family or friends, or if you a student, it’s to study, if you are a temporary worker it’s to work, and if you are returning as a permanent resident, the purpose must be to return to the U.S. as a place of your permanent residence.

Please read our guidance for lawful permanent residents returning to the USA who are facing  request from the CBP to sign the form I-407 and to abandon permanent residency (aka green card).

#knowyourrights #CBP #DHS #USCIS #GreenCard #admissiontoUSA #I407 #search #seizure #bordersearch #electronicdevicesearch #righttoattorney #detention

KNOW YOUR RIGHTS:

​What to Do If a LPR is Asked to Relinquish Their Green Card and Sign Form I-407, Abandonment of LPR Status When Returning to USA.

​This is a helpful reminder, which became important in light of recent events following an executive order when a number of lawful permanent residents (LPRs) were made to sign Forms I-407, were not allowed into the U.S., and returned to the foreign countries were they came from.

First of all, upon returning to the U.S., Legal Permanent Residents (LPR) should not automatically surrender their green cards if asked to do so.

An individual does not lose LPR status as a result of time abroad. They remain an LPR until a final order of removal is issued by Immigration Court and the government must prove abandonment by clear, unequivocal, and convincing evidence which a higher evidentiary standard than clear and convincing. See Matter of Huang, 19 I&N Dec. 749 (BIA 1988).

Form I-407 must be signed voluntarily and there are no potential negative ramifications for refusing to sign. Neither failure to sign nor abandonment is grounds for detention.

***If a LPR refuses to sign Form I-407 and insists on being admitted to the United States, the CBP officer must issue a Notice to Appear (NTA) so that an immigration judge can determine whether they have lost their LPR status.
When abandonment question is raised, a LPR can offer evidence of the following: their ties to the U.S., the purpose of their visit outside of the U.S., and the expected termination date of the visit abroad or occurrence of facts showing why a date certain is or was not possible. Precedent decision Matter of Kane, 15 I&N Dec. 258 (BIA 1975). The burden of proof at this stage is preponderance of the evidence, which is more likely than not (more than 51%) that you did not abandon your residence in USA. See Matter of Y-G-, 20 I&N Dec. 794 (BIA 1994).

Totality of the circumstances are relevant and must be considered. If the officer is nevertheless, not convinced, you should ask for a hearing before an immigration judge.

***If your green card is confiscated, you must be provided with alternative evidence of their LPR status, such as an I-94 and/or passport stamp that says "Evidence of Temporary Residence."
Abandonment of residence is not a ground of inadmissibility. Thus, the basis for the NTA is violation of INA §237(a)(1)(A) for being inadmissible at the time of admission because LPRs travel abroad and reenter the U.S. as "special immigrants" per INA §101(a)(27).

A LPR who is placed in removal proceedings, doesn't lose his or her status until a final order of removal is issued by Immigration Judge. See 8 CFR §1.2 (defining "lawfully admitted for permanent resident"). Read more at AILA Doc. No. 17012960.

In Russian:

ЗНАЙ СВОИ ПРАВА:

ЧТО ДЕЛАТЬ, ЕСЛИ ВЫ ПОСТОЯННЫЙ ЖИТЕЛЬ США (У ВАС ГРИН КАРТА), И НА ВЪЕЗДЕ В США, СОТРУДНИК ИММИГРАЦИОННОЙ СЛУЖБЫ ПЫТАЕТСЯ ОТОБРАТЬ ВАШУ ГРИН КАРТУ, ЗАСТАВЛЯЕТ ВАС ПОДПИСАТЬ ФОРМУ I-407, И ПЫТАЕТСЯ ВЫДВОРИТЬ ВАС ИЗ СТРАНЫ.

Полезная памятка для грин карт холдеров (постоянных жителей США), которые возвращаются в США и которых принуждают к отказу от грин карты и сдаче грин карты прямо в аэропорту сотруднику CBP. Эта ситуация случается нередко в аэропортах, но в последнее время требования к отказу участились, и нередко без веских оснований.

Помните, что если вас принуждают к подписи на форме I-407, Отказ от грин карты, вы не обязаны ее подписывать. Если вы не согласны и не хотите лишаться вида еа жительство в США, то не подписывайте эту форму.

Если сотрудник CBP продолжает настаивать, что вы потеряли свое резиденство (вид на жительство) в США, например, из-за длительного отсутствия за пределами США (более года), или потому, что вы являетесь лицом родившимся или имеющим паспорт из одной из семи стран на Ближнем Востоке, указанных в недавнем указе президента от 27 января 2017 г  - то они должны вас все же впустить в страну и выписать форму NTA, приглашение на явку в иммиграционный суд США, куда они должны передать ваше дело для решения вопроса о том, потеряли ли вы статус постоянного жителя или нет.

Помните, что хотя существует презумпция, что статус "автоматически" теряется после более одного года, проведенного за границей, но на самом деле все не так уж автоматически. Государство должно это доказать, и у вас есть право на доказательство своей правоты в иммиграционном суде США. Только судья может принять решение  том, чтобы отобрать у вас грин карту, а не сотрудник в аэропорту (естественно, вы можете решить отказаться от своей грин карты и добровольно ее отдать и подписать форму I-407).