Introduction

Foreign nationals must be able to prove that they have authorisation to be in the United States lawfully. US Border Patrol agents are within their rights to inquire as to the immigration status of a person in the United States, depending on the facts and circumstances. In the past few weeks, President Trump has issued executive orders instructing various agencies to increase their efforts to remove from the United States foreign nationals who have no legal authorisation. In addition, Trump's executive orders have authorised local and state law enforcement officers to perform the functions of immigration officers, and there have been reports of local law enforcement officers in some jurisdictions inquiring into the lawful immigration status of individuals in a manner similar to US Customs and Border Protection agents.

Given the new era of enforcement under Trump's administration, foreign nationals must have appropriate documentation in their possession to prove their lawful immigration status in the United States. Failure to do so may result in the foreign national being arrested and detained until the necessary documentation is provided.

Evidence of legal status

Documentation evidencing that a foreign national has authorisation to be in the United States lawfully includes:

  • a US green card or I-551 stamp; or
  • a Form I-94 card/record, a Form I-797 approval notice (if applicable) and a valid government issued-foreign passport.

Consequences of failing to provide documentation

Besides the inconvenience of possibly being detained, foreign nationals should make efforts to ensure that they have in their possession accurate and up-to-date documentation proving their immigration status for the following reasons.

Fines Under Section 264(e) of the Immigration and Nationality Act, aliens who are 18 years of age or older must carry in their personal possession, at all times, their:

  • certificate of alien registration; or
  • alien registration receipt card issued by the Department of Homeland Security (DHS).

The registration document is usually the Form I-94 card or Form I-94 record for non-immigrants, or the Form I-551 (ie, US green card) for lawful permanent resident aliens. Any alien who fails to have in their possession the registration document described above is guilty of a misdemeanour and may be fined up to $100, imprisoned for up to 30 days or both. Although this law has rarely been enforced in the past, it may be enforced under Trump's administration.

Implementation of Real ID Act for Air Travel In 2005 the Real ID Act for Air Travel was signed into law. The act established minimum security standards for state-issued drivers' licences and identification cards and prohibits federal agencies from accepting for official purposes licences and identification cards from states that do not meet those standards. From July 15 2017, the Transportation Security Agency, in coordination with airlines, will issue web-based advisories and notifications to the travelling public informing them of the type of identification that is acceptable. From January 22 2018, passengers with a drivers' licence issued by a state that is still not compliant with the act (or that has not been granted an extension) must show alternative forms of acceptable identification to board a flight for domestic air travel, such as:

  • a US passport;
  • a foreign government-issued passport;
  • a US green card;
  • a border crossing card;
  • a US military identification card; or
  • a US employment authorisation document.

Comment

Trump's executive orders provide little guidance to state and local law enforcement officers on carrying out the functions of an immigration officer. It is unclear if state and local law enforcement officers have undergone any formal immigration training or received any guidance or instruction from the DHS, or if state and local police departments have taken steps to provide instruction to their officers. It is also unclear how active state and local police departments will be in implementing Trump's executive orders.

However, given that Trump is pursuing an agenda of greater enforcement and compliance with immigration laws, and that there have been reports of state and local law enforcement agencies attempting to implement Trump's executive orders, foreign nationals should ensure that they have proper documentation in their personal possession while in the United States.

For further information on this topic please contact Matthew C Morse at Fakhoury Law Group PC by telephone (+1 248 643 4900) or email (matt@employmentimmigration.com). The Fakhoury Law Group PC website can be accessed at www.employmentimmigration.com.

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