Widespread reports of non-citizens being detained by the US Department of Homeland Security (DHS) during domestic travel within the US, have prompted immigration attorneys to advise their clients, including H-1B visa holders, to carry documents that establish their lawful immigration status or authorised stay in the US.The American Immigration Lawyers Association (AILA) says such incidents have been reported across the country, including in California, Colorado, Florida, Illinois, Kansas, Michigan, New Jersey, Texas and Virginia.Those detained did not necessarily have criminal records. Many were lawfully present in the US while an immigration benefit—such as adjustment of status or an asylum application—was pending. Some had also been issued Employment Authorization Documents (EADs) by DHS, allowing them to work legally while their applications were under consideration. However, immigration attorneys told TOI that while an EAD authorises employment, it does not, by itself, create or preserve lawful immigration status.The issue has particular relevance for the Indian diaspora, which accounts for the overwhelming majority of H-1B visa holders. When an employer sponsors an employee for an employment-based green card and an immigrant visa number becomes available, the employee may file Form I-485 to adjust status to permanent residence. While the application is pending, the individual has two broad options: continue maintaining H-1B status by obtaining periodic extensions of status (EOS), or rely on the pending I-485 application and work using an EAD.Maintaining H-1B status provides an important safeguard. If the US Citizenship and Immigration Services (USCIS) ultimately denies the adjustment of status application, an individual whose H-1B status remains valid can generally continue living and working in the US for the sponsoring employer.“If the underlying H-1B status has lapsed, and the person has a pending adjustment application, they could be amenable to detention and placed in removal technically,” said Cyrus D. Mehta, founder of an immigration law firm.Thus far, there have been no reports of the Indian diaspora facing such issues during domestic travel. One reason, immigration attorneys say, is that many employment-based immigrants continue to maintain their underlying non-immigrant status even after filing for adjustment of status.“Many employment-based immigrants continue to maintain H-1B or L-1 status via periodic extensions throughout the adjustment of status process, even after filing Form I-485,” said Abhinav Tripathi, immigration attorney at Protego Law Group.Nevertheless, immigration attorneys say the current enforcement environment warrants greater caution. “I am advising everyone who is EOS-pending and/or AOS-pending not to get near an airport for any reason if their I-94 has expired, even with a timely-filed extension of status, especially if they are between jobs or relying on EAD alone,” said Karin Wolman, a New York-based immigration attorney.Immigration attorneys recommend that all non-citizens travelling within the US carry documents establishing their immigration status or authorised stay. These may include a passport, the most recent Form I-94, a green card, receipt notices for pending immigration applications, an EAD, and evidence of current employment, as applicable.
