12 May 2022 Can I Safely Travel If I Am Out Of Status?
Many people in the US are out of status, but need to fly, either for business or family functions, such as a wedding, graduation, etc. When they consult with me, I am often asked
- Is it safe for me to travel or fly within the US if I’m out of status?
- Will I be caught at the airport by ICE or CBP if I try to fly within the US?
- What kind of documents can I show TSA to get on the plane if I’m out of status?
- What about flying internationally, will I be able to come back?
It is possible for people to fly within the US, even if they are out of status, and the TSA lists several acceptable documents to enable people to clear security at airports. This is especially important, because starting in May 2023, if a person presents a driver’s license to TSA, the license has to comply with the REAL ID requirements, which include demonstrating a person’s lawful status. Obviously, if a person is out of status, they would not be able to do so.
IS IT SAFE? WILL I BE CAUGHT?
As far as it being “safe” to travel within the US, ordinarily, I believe there is little risk of being caught by ICE, detained, etc. Obviously, if a person has a criminal record, is a terrorist, and is found on some sort of watch list, that will raise a red flag regardless of their immigration status. They would obviously have problems. However, flying within the US does not require a visa. If a person flies domestically, or within the US, US Customs and Border Protection (CBP) is not there to check documents. That usually takes place if they are arriving from a foreign country. And, there are so many people who are out of status who routinely travel by air without encountering CBP.
I remember one case where a person who was out of status needed to go from Atlanta Georgia to Phoenix Arizona. Like many other people, he thought it was too risky to fly, because immigration might be at the airport. So, he decided to take a Greyhound bus. As the bus drove through Texas, there was an immigration checkpoint 400 miles from the Mexican border. The bus was stopped, immigration officers got on board and started asking people for their documents. Since he didn’t have any documents showing lawful status, he was placed in removal proceedings.
What kind of documents can a person present to the TSA to be able to board a plane? On its website, the TSA lists a number of acceptable documents. Among the acceptable documents is a “foreign government – issued passport”. This means if you have a valid, unexpired passport from your home country, with your picture, this constitutes an acceptable government – issued document that you can present to TSA. This would be the case even after the Real ID Act comes into effect, where you might not be able to get a Real ID driver’s license.
Another acceptable document is an “US citizenship and immigration services employment authorization card”, or a work permit, which is typically issued to a person while they have some other application pending for interview or approval, like adjustment of status.
While ordinarily a person may not encounter issues or problems flying within the US if they are out of status, they could have a lot of problems if they attempt to travel outside the US, no matter what the reason or emergency. If they have been out of status for even one day, and they have a tourist visa that will not expire for many years, that visitor’s visa is considered void, and cannot be used again to return to the US. The law is one day out of status voids your nonimmigrant visa. They would have to apply for another visitor’s visa and it’s unlikely they would get a new one.
If a person has been out of status for more than six months and departs the US, they could be banned from returning for between three and 10 years.
Some people apply for adjustment of status and can also apply for what is called “advance parole”, which is permission to travel outside the US while their adjustment application is pending and be able to return. But I think there could be some risks involved, because what happens if, while they are gone, their case gets denied? What if the petitioner withdraws the petition? In fact, I came across a case where a woman went back to her home country on advance parole, and while there, she got into a fight with her US citizen husband, who promptly withdrew the petition. So, she had problems.
Of course, if a person is issued advance parole, they are entitled to travel, but I just wanted to point out possible risks or issues, so you can make informed decisions.
I hope you have found this information helpful. I also post immigration videos on my YouTube channel, US Immigration TV. But if you are out of status, you may want to consult with an attorney who can evaluate your situation and perhaps provide options to legalize your status.
Follow us on Facebook.com/GurfinkelLaw, YouTube: US Immigration TV and Instagram.com/gurfinkellaw
Four offices to serve you:
LOS ANGELES; SAN FRANCISCO; NEW YORK:
TOLL FREE NUMBER:
+632 8894-0258 or +632 8894-0239