TSA Is Providing Domestic Traveler Info To ICE For Removal Purposes…Should TN Visa Workers Worry?
According to recent reports, the Transportation Security Administration (TSA) is providing to Immigration and Customs Enforcement (ICE) lists of individuals who are traveling by air domestically in the U.S. ICE is then comparing that list to its own database of individuals subject to deportation, and then sending agents to the airport to arrest and remove these individuals from the U.S.
How do these new enforcement measures impact TN visa workers? It is unclear whether ICE’s enforcement activities here are limited to individuals with pre-existing removal/deportation orders, or if individuals whose visa status has expired are also at risk. If ICE is or will be targeting those individuals whose I-94 record has expired, then the following TN visa workers should exercise caution and consider avoiding domestic travel:
1. TN visa workers who have timely filed an I-129 petition to extend their I-94 work authorization, but whose I-94 record has subsequently expired.
Under a nonsensical provision of immigration law, filing a timely I-129 extension of status petition allows TN visa workers and others to continue working for their employer for 240 days past the expiration date of their I-94 (8 C.F.R. 274a.12 (b)(20)), but does not place them under valid immigration status. As such, they could still be subject to removal until USCIS approves their extension petition.
In this current heavy handed environment, a best practice may be to ensure approval of any TN visa extension petition prior to the expiration of one’s I-94 record by either filing the petition as soon as possible (these can be filed 6 months in advance) or by using premium processing. Alternatively, individuals may obtain an “extension” of their TN status faster by filing an application at the U.S. port-of-entry (Canadians) or by filing a visa application at the U.S. Embassy/Consulate (Mexicans).
2. TN visa workers who have filed for a Green Card through the I-485 Adjustment of Status (AOS) process, but whose I-94 record has expired.
Similarly, under another absurd provision of law, while filing a timely AOS application places an individual in a “period of authorized stay”, which provides some legal protection, e.g. against accumulated unlawful presence, it does not technically place a person under valid immigration status (see pg. 58 of Adjudicator’s Field Manual). As such, they could still be subject to removal until USCIS approves their AOS application.
As mentioned in my prior post, ICE may now be targeting this group at their AOS interviews even though for some cases, e.g. those based on marriage to a U.S. citizen, the law allows the approval of AOS applications despite one’s visa status (I-94) expiration. I discuss in that prior post some possible strategies to minimize risk in this process.
Other groups of individuals may also be at potential risk traveling by air domestically, and should consider consulting with an attorney to evaluate their case.