With increased scrutiny at U.S. borders, many foreign nationals are understandably anxious about traveling in and out of the United States. At Harris Beach Murtha, our Immigration Practice Group has seen a surge in inquiries related to border travel, and we are committed to providing clear and up-to-date guidance.
L.J. D’Arrigo, leader of our Immigration Practice Group - which oversees one of the nation’s largest immigration practices - emphasizes that there are currently no formal travel bans in place for any country. Individuals holding valid visas in their passports should generally not encounter issues upon reentry. However, travelers with the following risk factors may face heightened scrutiny:
- Criminal history or prior arrests
- Previous visa or immigration violations
- Social media activity or public statements critical of U.S. government policies
It is important for all travelers to be prepared for enhanced questioning and possible searches by U.S. Customs and Border Protection (CBP), including inspections of mobile phones and other electronic devices. Those who need to renew their visa stamps abroad should also anticipate potential delays at U.S. consulates due to increased security vetting.
To help travelers navigate this challenging environment, Harris Beach Murtha has compiled a list of best practices and frequently asked questions aimed at minimizing stress and facilitating a smoother reentry experience.
Best Practices for Noncitizens Reentering the U.S.
Answer Only the Questions Asked by CBP: Less is more when interacting with CBP. Answer specific questions directly and avoid volunteering additional information. Providing more details than necessary can inadvertently raise concerns or lead to unnecessary scrutiny.
Only offer specifically requested documents: For example, a phone should not be handed over unless requested by CBP officers. One exception to this guideline is the latest I-797 approval notice, which should always be presented, if entering based on that I-797.
Stay Calm and Be Truthful: Answer all questions truthfully and succinctly, even if you feel nervous or uneasy. Lying or providing false information can lead to serious consequences, including removal and a ban from reentering the United States. If you do not know the answer, do not guess.
Be Aware of Information on Mobile Devices: CBP officers at U.S. ports of entry generally have the right to inspect your cell phones, laptops or other electronic devices. Harris Beach Murtha attorneys have seen cases where CBP misconstrues information on such devices, resulting in serious immigration problems for the foreign national involved. While it may not be feasible to anticipate how every sliver of information on a cell phone may be misinterpreted, it is good to be cognizant of what is on one’s digital devices.
FAQs for Foreign Nationals Traveling In and Out of the United States
Q. I am a lawful permanent resident of the United States (green card holder) without any prior law enforcement contact of any kind. If I travel outside the United States, can I come back?
A. Yes, as a lawful permanent resident you are free to exit and re-enter the U.S. To re-enter, you need to show your green card (or an unexpired “I-551 stamp” in your passport, if you do not yet have your green card), along with a valid passport from your country of nationality. As long as you do not stay outside of the United States for more than one year, you will keep your permanent residence status. Note, however, that even a departure of more than six months is not recommended, as it will break continuous residency for naturalization purposes and can subject you to an in-depth inquiry into your current ties to the United States, upon your return.
You can take steps to preserve your lawful permanent status if you must remain outside of the United States for longer than a year, but these steps must be taken BEFORE you leave. If you think it is possible that your trip will last longer than one year (or even just longer than six months), seek legal advice from a reputable, experienced immigration lawyer before leaving.
Q. I am a lawful permanent resident of the United States (green card holder) and have prior law enforcement contact. If I travel outside of the United States, can I come back?
A. Yes, but, depending on the charges against you, the Department of Homeland Security (DHS) may start removal/deportation proceedings against you for certain criminal convictions, such as an aggravated felony. If you were arrested, but not convicted, be sure to travel with documentation proving the criminal charges were dismissed, such as a Certificate of Disposition.
Note, however, you may be found removable/ deportable even for convictions where you paid a fine or got probation, or which were expunged. In some cases, even without a conviction, DHS might say they have “reason to believe” you might be inadmissible for certain things; this is particularly a concern if you have stayed outside the United States for more than 180 days. If you have ever been arrested, whether or not you were convicted, seek legal advice from a reputable, experienced immigration lawyer before leaving the United States.
Q. I still have a valid nonimmigrant visa in my passport, and the visa allows multiple entries. Can I use it to come back into the United States?
A. Yes, as long as you reenter the United States to resume activities or employment under the same visa classification for the same employer, and only if you now maintain valid status in the United States. This means you have not stayed in the United States past the date written on your Form I-94 Arrival/Departure Record (this is downloaded from CBP.gov).
Q. I have an Adjustment of Status Application (Green Card Application/Form I-485) pending. Can I leave the United States and come back?
A. Leaving while your adjustment of status is pending (unless you have an H-1B or L-1 visa) will generally have the legal effect of withdrawing or abandoning your application. However, before traveling, you can ask DHS for permission to leave the United States. by making an application for Advance Parole. Advance Parole is permission for certain non-citizens to re-enter the United States after traveling abroad. If you have an approved, unexpired advance parole document, then leaving will not be considered abandoning your adjustment of status application. Seek legal advice from a reputable, experienced immigration lawyer before leaving.
Q. If I get Advance Parole, am I guaranteed re-entry into the United States?
A. No. The grant of Advance Parole does not waive any grounds under which DHS may normally deny you re–entry. If you have committed, been arrested for, or been convicted of any criminal offense, DO NOT leave the United States on a grant of Advance Parole without first seeking legal advice from a reputable, experienced immigration lawyer. Even if you have Advance Parole, DHS may deny you re–entry.
What are your rights at the border?
Q. Can border officers ask questions about my immigration status?
A. This is different depending on your status:
U.S. Citizens: You only have to answer questions establishing your identity and citizenship (in addition to customs-related questions). Refusal to answer other questions may cause delay, but officials may not deny you entry into the country if you have established your identity and citizenship.
Lawful Permanent Residents (green card holders or LPRs): You only have to answer questions establishing your identity and permanent residency (in addition to customs-related questions). Refusal to answer other questions will likely cause delay, but officials may not deny you entry into the country for failure to answer other questions. LPR status may be revoked only by an immigration judge. Do not give up your green card voluntarily!
Non-citizen visa holders and visitors: Refusing to answer questions asked by airport or border officials could cause delay and might also lead to officers denying your entry into the country. Officers may not select you for questioning based on your religion, race, national origin, gender, ethnicity or political beliefs.
Q. Can U.S. customs officers ask questions about my religious beliefs and practices or political opinions?
A. Religious and political beliefs and associations are protected by the 1st Amendment. CBP officers have sometimes asked travelers about their religious affiliation, religious practices, association with religious institutions and political opinions. The travelers targeted for such questioning have often been Muslim.
Questioning individuals about their religious and political beliefs, associations, and practices can infringe upon rights guaranteed by the Constitution and federal law — these rights are not surrendered at the border. Here’s more detail:
U.S. Citizens and Lawful Permanent Residents: You do not have to answer questions about your religious beliefs and practices or political opinions, and you cannot be denied entry to the United States for declining to answer such questions. If customs officers persist in asking you such questions, request to see a supervisor.
Non-citizen visa holders and visitors: You may decline to answer general questions about your religious beliefs and political opinions, but doing so may lead to delay or additional questioning, or possibly denial of your entry into the country. If you are told you cannot enter the country and you fear you might be persecuted or tortured if you are sent back to the country from which you traveled, you should tell the customs officer about your fear and ask for asylum.
Q. Can lawful permanent residents be denied a right of reentry to the United States?
A. Yes, immigration laws provide a limited set of circumstances under which green card holders could be denied the automatic right to reenter the country and may be deemed to be “seeking admission.” See 8 U.S.C. § 1101(a)(13)(C).
These circumstances include absence from the United States for a continuous period of more than 180 days, engaging in illegal activity after having departed the United States, or conviction of — or admitted to committing — a crime involving moral turpitude or a violation related to a controlled substance. If you think one of these may apply to you, please consult with an experienced immigration attorney about your individual case before attempting to re-enter the country.
Also, note that concerns have been raised about individuals being turned away due to their political opinions, even if those opinions are expressed through peaceful means like social media. In one case, a French scientist was denied entry because messages on his phone expressed his "personal opinion" on the Trump administration's science policies.
While not explicitly based on political opinion, actions taken in relation to political beliefs could raise concerns about national security. For example, involvement in protests or movements that are perceived as threatening could lead to increased scrutiny and potential denial of entry.
Border Searches: What are Your Rights?
Q. Can border agents search my electronic devices?
A. CBP claims the authority to search and confiscate laptops, mobile phones, digital cameras and other electronic devices upon entry to the United States, without any suspicion of wrongdoing. CBP also claims the right to make a copy of information found on electronic devices. CBP even has asked travelers to provide their laptop passwords or unlock their cell phones.
U.S. citizens cannot be denied entry to the country for refusing to produce passwords, provide device access or submit electronic devices for a search. However, refusing might lead to detainment or your device being seized and not returned for weeks or months. The same goes for Lawful Permanent Residents – their green cards can’t be revoked without a hearing before an immigration judge.
Non-citizen visa holders and visitors run the risk of being denied entry if refusing to provide a password, and you should consider that risk before deciding how to proceed.
Please note: Enter the password yourself rather than divulging it to a CBP agent. They still might demand that you share it, but it’s a precaution worth trying to take.
Need Personalized Immigration Guidance? We're Here to Help.
Please note that this list is not exhaustive, and individual circumstances can vary widely. It's always best to consult with a knowledgeable immigration attorney when navigating travel or immigration concerns.
