What Are the Risks Traveling In and Out of the US?

There are times when international travel may be more challenging or stressful than other times. At present, the United States finds itself in a period of significantly increased immigration enforcement occurring in the interior of the United States, at ports-of-entry, and at United States consular posts. With this in mind, it is wise for employers to educate their traveling workforce and to have their employees consider one’s individual travel risks and tolerance for delays when deciding whether and when to travel abroad and return to the United States. This Travel Advisory is intended to help employers manage those risks and better prepare one’s traveling workforce for an uneventful return trip back to the United States.

In recent months, the media has documented numerous instances of foreign national travelers being stopped at ports-of-entry, detained by immigration authorities, and occasionally being denied entry to the United States. It is important to contextualize the realities on the ground. First, nearly all authorized travelers entering the United States are being inspected and admitted into the United States without any issues. That is the good news. However, we are also mindful that those media stories are instructive. We recognize that the news headlines can highlight incorrect legal analysis and poor decision-making by the U.S. Department of Homeland Security—both U.S. Customs and Border Protection (CPB) officers and U.S. Department of State Consular Officers. It is because of this increased scrutiny and occasional inconsistent or suspect decision-making at the border and at United States consulates, and the future Travel Ban(s) that will likely be implemented in the coming weeks, that we issue this Travel Advisory.

Questions to assess a foreign national’s personal risk for delays during international travel

• Have you ever had any direct interaction with law enforcement (in the United States or abroad)?
• Have you expressed political or personal opinions—perhaps online, or in writing—that is available to the public that might be “objectionable” to the current administration?
• Have you engaged in political activities in the United States or abroad that might be “objectionable” to the current administration?
• Have you ever overstayed a prior period of authorized stay, been denied a visa or ESTA, been subject to Secondary Inspection (at a port-of-entry) or Administrative Processing (at a consular post)?
• Are you a citizen of a country that is (likely to be) on the Travel Ban list of countries?
• Is travel necessary for urgent personal or business purposes? Are your dates for travel flexible?

We anticipate the current administration to implement its Travel Ban at some point in the near future. Even if you are not a foreign national of a country listed on an expected Travel Ban, you may still encounter delays at ports-of-entry and at consular posts in the days and weeks following the implementation of any Travel Ban.

Who should carry what?

The documentation one should carry will vary depending on the foreign national’s class of admission requested by the traveler.

• H-1B, O-1, E-1/2, L-1, TN, and Other Employment-based Nonimmigrant Visa Holders:
  • Carry an original copy of Form I-797, Approval Notices, or Form I-129S, if applicable.
  • Carry proof of employment to include several recent payroll statements and a recent employment verification letter.
• F-1/J-1 Students/Scholars:
  • Carry proof of enrollment (if currently enrolled) to include recent transcripts, if applicable.
  • For those on (STEM-)OPT/CPT, proof of employment to include several recent payroll statements and a recent employment verification letter and EAD, if applicable.
  • Carry the most recent Form I-20 or Form DS-2019 with a recent travel endorsement.
• ESTA/B-1 Business Travelers:
  • Carry a detailed business “invitation” letter from a United States person or entity explaining the nature and length of your visit (with relevant supporting documentation) and provide relevant details about your expected activities in the United States including an itinerary of your stay.
  • Carry proof of employment to include several recent payroll statements.

Electronic device searches

Lastly, a subject that has generated increased concern during the early days of the new administration relates to electronic searches at the ports-of-entry during entry into the United States.

Whether one is a visa holder, green card holder, or even a naturalized or natural-born United States citizen, one could face increased scrutiny of phones, laptops, and other electronic devices at ports-of-entry. CBP claims these searches are rare and necessary for national security, but under the current administration these searches have become more frequent, raising serious concerns about privacy violations and political targeting.

Electronic searches at ports-of-entry

• For many travelers coming to the United States, CBP officers have the authority to search personal electronic devices without a warrant, including phones, laptops, and cameras. Officers can review messages, photos, emails, and social media accounts. When viewing accounts that have privacy settings (e.g., X or Facebook), the Officer will be viewing the account from your phone; therefore, privacy settings will not impede the Officer’s review.
• Refusing to comply could lead to you being denied entry (if you are not a United States citizen or green card holder) or having your device confiscated for further inspection.
• Who is most likely to have their devices searched? CBP officers have broad discretion in determining who undergoes this kind of additional screening.
  • Secondary inspections (where device searches often occur) can be triggered by:
    • Suspicion that a traveler may overstay or misuse their visa;
    • Past travel to certain countries or United States travel history;
    • Random selection; and
    • Red flags that pop up when a name check occurs by USCBP when flight manifest information is provided to ports-of-entry in anticipation of arrival.
• United States citizens cannot be denied entry for refusing to unlock your device(s), but CBP could detain you longer to ask additional questions and CBP could hold on to your device for several days.
• Green Card holders have the same rights as United States citizens at the border. Additionally, it is important to note that CBP does not have the right to revoke your green card. Instead, if CBP wants to refuse a green card holder admission to the United States, the green card holder should be scheduled for a hearing before an Immigration Judge to adjudicate the green card holder’s right to maintain such status.
• Visa holders & tourists are not necessarily free to object to electronic device searches. If you refuse to provide access to your device(s), CBP may deny you entry.

We strongly advise that foreign national employees communicate their personal and business travel plans as early as possible to their human resources (HR) representative to allow for the HR team to obtain any necessary legal advice or travel-related updates or information to help prepare the foreign national employee for a seamless immigration process at the consulate or an uneventful return to the United States.

This Travel Advisory is not meant to substitute for legal advice regarding your future international travel plans.