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Home for the Holidays: Travel Issues for Foreign Workers
Practical Law Legal Update w-004-4299 (Approx. 4 pages)
Home for the Holidays: Travel Issues for Foreign Workers
by Practical Law Labor & Employment
| Published on 08 Nov 2016 • USA (National/Federal) |
An Update providing employers with foreign national workers or business visitors with resources about travel requirements for their foreign workers who will return to the US after traveling abroad.
The holiday season during November, December, and January is a popular time for employees to travel. For US-based foreign workers, the holiday season frequently means traveling outside the US. While employers typically do not concern themselves with employees' activities while away from the workplace, employers with foreign workers or business visitors must consider how their foreign workers will gain entry or re-entry to the US after a trip abroad. If these individuals cannot get into the US, employers may:
- Be deprived of a desired or needed skill.
- Suffer business delays or loss.
US immigration law includes several steps that employers, foreign workers who are coming to work in the US, and business travelers who are coming to the US for business meetings or conferences, must navigate before the travelers may lawfully enter the US to perform work or return to their intended activities. These steps are meant to ensure that each foreign national entering the US has a valid purpose and is not barred because of health, criminal, or immigration problems.
Before leaving the US, foreign workers should evaluate whether they need to take any steps to assure their immigration status before or during their international travel. In addition, foreign workers should prepare for their eventual interview before a US Customs and Border Protection (CBP) immigration inspection officer on return to the US.
The foreign worker's principal considerations are:
- Does she have the documents she needs to return to the US? The documents may include one or more of the following:
- a passport valid for at least six months (and for certain nationalities, one year) beyond her authorized stay in the US;
- a visa in the appropriate nonimmigrant visa classification;
- an approval notice for her current nonimmigrant employer;
- an advance parole travel document; or
- an original or electronic print out of her I-94 card, valid beyond her planned return to the US, if traveling to Canada or Mexico.
- Has she been arrested or charged with a crime or violated her US immigration status?
- Is her nonimmigrant status in the process of being extended? If yes, is her extension at a point where she can travel internationally?
- Is she being sponsored for a green card? If yes, is her case at a point where she can travel internationally?
Each of the steps required for entry and admission to the US of foreign workers or business travelers may present a challenge to the employer and the traveler. Employers must identify the correct nonimmigrant visa classification for the worker or business visitor and may need to sponsor a worker through a nonimmigrant visa petition or an extension of nonimmigrant status. Travelers may need to obtain a nonimmigrant visa or, if traveling under the visa waiver program, pre-approval or renewal for visa-free travel called Electronic System for Travel Authorization (ESTA). Travelers seeking to enter the US must present the correct documents and must have no health, criminal, or immigration problems that might prevent their entry to the US.
Practical Law has many resources that examine the challenges employers face with foreign workers or business travelers. These resources explain each step employers and foreign travelers to the US should take and offer tips for handling particular situations that may arise. For more information, see the following resources: