Traveling Without a Legal Status | New Jersey Immigration Attorney

Traveling Without a Legal Status

Your Questions Answered

Traveling Without a Legal Status

Travel questions answers. With summer coming and COVID restrictions being lifted, I know that more people will be traveling. People always want to know, “Can I travel even if I don’t have a legal status?” so I thought for this week’s Tip of the Week, I’d talk about that, answer some questions we’ve had from viewers on our channels, and discuss all things travel related.

We are all happier that so many people are getting their COVID vaccines. We feel terribly for those in India and those here in the US who have family in India. I hope your family is safe and well. But you may be wondering, “Can I travel safely now?” Not because of the pandemic, but because of your legal status. Let’s talk about that.

Real ID for Undocumented Immigrants

A few years ago, a law said anyone wanting to fly would need a REAL ID. That was supposed to go into effect in 2019, then was extended to 2020, and has now been extended to 2023. Why do I bring this up? Because while many states now allow undocumented immigrants to get some form of identification card, most are not allowing them to get a REAL ID if they do not have legal status. 

However, that won’t impact your travel plans at this time. What will impact your travel plans is IF you don’t have any type of valid ID. So say you are undocumented in the US and want to travel from California to Puerto Rico, or Texas to Hawaii (as some of our clients shared). We are asked almost every day if being undocumented will keep you from traveling. 

If you have a valid, current foreign passport or other acceptable forms of ID, you should not have a problem traveling within the US, even if you are undocumented. We recommend that you contact the airline you are flying with and the airports you pass through to verify what ID they require to let you travel. 

Customs and Border Patrol and Domestic Flight Passengers

Can CBP (Customs and Border Patrol) stop you if you are flying domestically? (that means within the US). 

Customs and Border Protection officers can stop you either at an airport, on a bus, or during a car trip. However, they cannot stop you when you are arriving on a domestic flight. In fact, they did this in 2017. The victim filed a lawsuit, and an agreement was reached that said they would NOT do this.

Based on this agreement: 

CBP will circulate a policy directive nationwide clarifying that the agency does not have a policy or practice of checking the identification of deplaning domestic passengers. If CBP officers seek to check identification, the directive outlines clear protocols restricting those checks. Officers must now:

  • Make clear through their words and actions that participation in the document checks is voluntary;
  • Provide an unimpeded path for passengers to exit the airplane;
  • Explain, if asked, that passengers who decline to participate will face no law enforcement consequence as a result; and
  • Request that airline personnel announces over the airplane’s public address system that participation is voluntary.

These requirements make clear that officers cannot detain domestic flight passengers for suspicionless searches. CBP will recirculate the directive nationwide again in two years.

Refusing Suspicion-less ID Checks

If you refuse to give consent when on a domestic flight, the CBP officers cannot detain you, even for a brief period, without reasonable suspicion of a violation of the law.

CBP has this on their website: Customs can stop people traveling to the US. The authority for this is based on the Immigration and Nationality Act 287(a)(3). Copied in 8 Code of Federal Regulations (CFR) 287 (a)(3), which states that Immigration Officers, without a warrant, may “within a reasonable distance from any external boundary of the United States, board and search for non-citizens in any vessel within the territorial waters of the United States and any railcar, aircraft, conveyance, or vehicle. 8 CFR 287 (a)(1) defines a reasonable distance as 100 air miles from the border. To conduct a legal search under the Fourth Amendment, the agents must develop probable cause to conduct a lawful search.

However, if you consent (meaning give permission) to Customs stopping and reviewing your ID, travel documents, and belongings, you can’t argue later that they couldn’t do it.

Advance Parole

We have also had several questions about the Advance Parole. This is something that you apply for with Form I-131 when you are applying for a green card, or a few other statuses, or even DACA (which is not a legal status), that says you may re-enter the US (though you are still subject to inspection and approval to enter by CBP). 

Keep in mind that some categories like DACA when applying for Advance Parole can only get it for emergency reasons, which I’ve talked about in other videos, so I’ll link them here. 

Travel Restrictions While Waiting for Advance Parole

You must NOT travel before your Advance Parole is approved. I know it is frustrating and takes a long time. But if you are trying to get your green card, and you leave before your AP is approved, your green card application may be considered abandoned, and you will need to start the whole process over again and may have to do that while living outside the US.

Advance Parole Under DACA

One of the questions we get is if you apply for AP under DACA to go to one country, say Mexico, to see a family member who is ill, can you then travel to other countries before coming back to the US?

The answer is, yes, you can travel to other countries if you have AP. Just make sure you didn’t lie in your application.  I would consult with a qualified New Jersey immigration attorney before doing so, as this varies on a case-by-case basis.

Remember that Advance Parole is only valid for up to one year. You must return to the US before that time expires, or you may lose your immigration status. 

Also, Advance Parole does not guarantee re-entry. If you have something in your background that would make you inadmissible to the US, you can be denied re-entry. We recommend that you talk to a competent New Jersey immigration attorney to help with your immigration concern.


Going Through Removal Proceedings

If you are in removal proceedings, you will not be approved for Advance Parole, so I recommend you don’t waste your time or money applying for it. 

We had someone who said they were traveling outside the US on AP and wondered if their order of removal would keep them from being allowed back into the US.

It shouldn’t since USCIS was aware of your order of removal when it granted your parole.  However, I wouldn’t take the chance.  You should talk to an immigration attorney about your circumstances. We can’t help everyone who calls, but if we can’t help you, we won’t take your money.


Talk to a New Jersey Immigration Attorney

My name is Andres Mejer. I’m an immigrant and immigration attorney based in New Jersey. I help people to get a legal status no matter where they are in the US.

I started helping people with their immigration issues because my family had a bad experience with an attorney NOT getting us our green cards when I was growing up. My family paid them to help us get our green cards, and they didn’t do anything. My goal is to make sure YOUR process is as stress-free as possible. 

If you’re a foreign national who needs immigration help, don’t hesitate to connect with our immigration law firm in New Jersey. Our trusted and reliable New Jersey immigration attorneys can help you process your Green Card, DACA, or apply for legal status. Call us at 888-695-6169 to schedule an appointment.

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