Statutes of Liberty: Home for the Holidays, Traveling for Non-Citizens

This sponsored column is by James Montana, Esq., the principal of Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact him for an appointment.

By James Montana, Esq.

Nothing in the world gives immigration lawyers more heartburn than travel does. Even legal immigrants to the U.S. often can’t just hop on a plane and go home.

Meet Jane. Jane, a citizen of the U.K., is getting her Ph.D. in economics from MIT. Jane is in the U.S. legally, on an F-1 student visa. Jane meets Ringo, a citizen of the U.S., who is also getting his Ph.D. in economics from MIT. Jane and Ringo decide to get hitched. Ringo and Jane fly together to London, so Ringo can ask her father for permission to marry her; they then fly back to the U.S., get married at the courthouse and apply for a green card. Will that work?

Nah! Thanks to some romantic-but-inadvisable travel, Jane and Ringo have stepped directly into the 90-day rule, which says that if you enter the U.S. on a temporary status and then do something that indicates intent to remain permanently, then you are presumed to have made a willful misrepresentation on a prior visa application. You don’t want to have the government making presumptions about you. All for a little travel.

What if Jane stays in the U.S.? Say she marries Ringo and applies for a green card. Can she travel while her green card application is pending?

Probably not! Unless she has a clever immigration lawyer who can pre-arrange something called “advance parole” for her, Jane’s little jaunt home will fricassee her pending green card application. Uncle Sam will keep her $1,760 application fee, and she may be in deeper trouble yet.

How about an asylum applicant? Can an asylum applicant travel home? Nope: never, never, never. Can an asylum applicant travel to a third country while the asylum application is pending? Almost never, and you can kiss the asylum application goodbye if you do.

I know a nice Salvadoran man — married, a couple of kids, great moustache. He was here with Temporary Protected Status, and so he was fully authorized to work. Thanks to some bad immigration advice from a notario, this gentleman left the United States and remained in El Salvador for one week longer than he was supposed to be away. It cost him, his employer and his family eighteen months and many hundreds of dollars to get him back into the United States. All for a little travel.

Even lawful permanent residents can get crushed by the Travel Monster. Permanent residents who stay outside the country for more than a few months can be placed into removal proceedings based on an allegation of abandonment. Removal proceedings will keep you in court for a half-decade, and you will make many thousands of dollars in contributions to the Impecunious Attorney Fund.

Travel is a wonderful thing — for U.S. citizens. Foreigners of any stripe should be extremely careful about it. Talk to a lawyer first. I know a few.