Immigration and Customs Enforcement (ICE) has recently been detaining and arresting a significant number of foreign nationals attempting to board, or deplaning from, domestic flights within the United States.  This has occurred at airports throughout the United States. Such individuals have been detained and arrested based on a belief that they lack valid immigration status in the United States or are otherwise removable from the country.  This ICE initiative appears to be based on passenger information received through data sharing with ICE by the Transportation and Security Administration (TSA).

Although a number of the individuals detained and arrested by ICE are persons who are unlawfully present in the United States or have removal orders, it appears that some foreign nationals who are authorized to remain in the country lawfully have also been detained and arrested.  Although precise details have not been provided by ICE, it appears that the following categories of foreign nationals may have been affected:

• Nonimmigrants with pending timely filed extension of stay or change of status applications whose I-94 admission records have expired;
• Adjustment of status applicants whose nonimmigrant status has expired;
• Nonimmigrants with unexpired I-94 periods of stay whose visa stamps have expired.

The information provided by TSA to ICE is likely only to contain the expiration dates of a foreign national’s most recent I-94, his/her passport, and possibly his/her nonimmigrant visa, and it may therefore appear to ICE that this person lacks immigration status in the United States.  ICE officers conducting detentions and arrests are typically not educated in immigration law and procedure and will not understand, for example, that a person with a timely filed extension of stay, change of status, or adjustment of status application is authorized to remain in the United States lawfully.

Until some clarity is provided by ICE or another federal agency with respect to the basis for these airport arrests and detentions, we advise any nonimmigrant whose period of stay has expired not to travel by air within the United States.  This is so even if this person has timely filed an extension of stay or change of status application.  Once the application has been approved, such travel may be undertaken.  Persons with unexpired I-94 records but expired visa stamps in their passports should consider carefully their need to travel by air, although the likelihood of their arrest and detention is much smaller.  Adjustment of status applicants whose nonimmigrant status has expired are also discouraged from undertaking such air travel, unless they have unexpired Employment Authorization Documents (EADs) or Advance Parole (AP) documents (EADs and APs are sometimes issued in a single document).

All foreign nationals in the United States should at all times carry evidence of their immigration status.  This consists of an original passport, an original I-797 approval notice if applicable, and a printed copy of an I-94 admission record.