As the holidays approach, our office has received an increase in questions regarding travel abroad. Employers and their foreign national employees should take precautions to ensure smooth travels over the holiday season.
Prior to making travel plans, foreign national employees (with the exception of Canadians) must have a valid visa in their passports (preferably multiple-entry) to re-enter the United States. Employees who did not previously obtain a visa in connection with their current nonimmigrant status, or whose visa has expired, will need to apply for one at a U.S. Consulate. The only exception is for visits to Mexico or Canada for less than 30 days under the visa revalidation rule.
U.S. Consulates vary in their procedures and processing times. Employees 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 national employees should inform their employers as soon as possible regarding their plans to travel outside of the United States. Employees should provide their employers with departure and return dates and the countries to which they plan to travel. Travel to certain countries could result in lengthy additional delays for security review.
Where possible, employers should provide employees with an employment confirmation letter that confirms the employee’s continued employment pursuant to an approved nonimmigrant 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.
Foreign national employees who have a pending “change of status” petition (from one nonimmigrant classification to another) must remain in the United States until a determination on that petition is rendered. 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.
Finally, the U.S. Supreme Court has ruled that President Trump’s third travel ban, impacting eight countries, is to be fully enforced, effective December 8, while legal challenges in lower courts continue. 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.