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Documenting Lawful Status – What Documents Must My Employees Carry?

14 Jun

As the human resources representative or legal counsel for your employer, you may have recently received questions from immigrants, nonimmigrants, and even naturalized U.S. citizens about what documents to carry daily within the United States.

With the rapid changes in immigration law and policies, never before has it been more important for an employee to know his or her immigration status, legal rights, and the appropriate documents to carry while traveling into or within the United States.  Additionally, with partnerships set up between U.S. Immigration and Customs Enforcement (ICE) and federal agencies and also local and state law enforcement, it is more important than ever to carry proof of one’s lawful status in the United States. Indeed, it has recently become known that the Texas Department of Public Safety (DPS) has been creating “DPS citation lists” since August 2016. These lists contain the names of people cited for driving without a license and for driving while intoxicated. DPS shares these citation lists with ICE, which uses the DPS lists as an indication that someone may lack immigration status, as reported recently in the Houston Chronicle.

The documents one should carry depend on his or her status in the United States, and where the encounter with authorities occurs. Entering into the United States at a Port of Entry, or being within 100 miles of any U.S. Border, requires different documentation than remaining exclusively within the interior of the United States.

Foreign nationals seeking entry into the United States must carry a valid passport from their country of citizenship, as well as a valid visa to enter into the United States, unless they are visa exempt or traveling under the visa waiver program, or have other entry documents approved by the U.S. Department of State.

Permanent Residents must carry their permanent resident card (green card), in addition to their passport, while traveling internationally and when returning to the United States. Further, they are required to carry their green card with them at all times, even within the United States. A valid State issued ID/or Driver License is also recommended and should be carried within the United States.

U.S. Citizens, entering the United States after travel must present their U.S. passport. In addition, those traveling within 100 miles of the U.S. Border should consider carrying their U.S. passport or U.S. passport card to facilitate any questioning should there be a stop by immigration officers. They should also carry a copy of their naturalization certificate, if applicable, as an added precaution. A valid State issued ID/or Driver License is also recommended and should be carried within the United States.

Temporary Nonimmigrants and Visitors who are lawfully present in the United States, such as business visitors, students, H-1B workers, and all other temporary workers,  must carry with them, at all times, their passport with entry stamp and I-94 Record, Employment Authorization Document (EAD), or valid Form I-797 Approval Notice.  If you or your employees have questions on specific documents your employees should carry when an extension is pending or after a change of status petition is filed, please check the emails provided to you on what documents to carry or contact your Foster immigration attorney.

Temporary nonimmigrants and international visitors should also carry with them their State issued ID/Driver License. Otherwise, even if stopped for a routine traffic ticket, a driver could be viewed as lacking immigration status if the driver does not have a valid state driver’s license.

DACA recipients, those with TPS status, and those with pending VAWA, U-visa or Asylum applications should carry valid passports, and a valid EAD card or any receipt notice demonstrating that their cases are pending. Those with valid driver’s licenses should carry their driver’s license as well.

Individuals with pending cases before the USCIS should carry with them a copy of their passports, as well as the receipt notice demonstrating that a case is filed on their behalf.

Those with cases pending before the Executive Office for Immigration Review must always carry proof of their Court Notice of Hearing, a State issued ID/Driver License, an EAD or any USCIS Receipt or copies of Court filings demonstrating that the case has been filed and is pending on their behalf.

Drivers, including U.S. citizens, must carry their valid state driver’s license when driving as required by state law.  Especially if driving in Texas, drivers should carry their valid state driver’s licenses to help avoid being put on a DPS citation list and facing inconvenience later or possible detention by law enforcement or ICE while ICE determines if the driver is authorized to be in the United States.

For those employees with friends or family members who do not possess a valid I-94 Record, EAD, Form 1-797 Approval Notice or valid state driver’s license, it would be prudent for their friends and family members to carry copies of their birth certificates and any photo identity document from their own country along with any other valid documentation showing they are authorized to be in the United States. Individuals who are not legally authorized to be in the United States. should have their Embassy contact numbers with them and be ready to present, if requested, documentation showing they have been in the United States for at least two years to help avoid expedited removal from the United States without a court hearing.

As a precaution, keep a copy of the documents in a safe place at home or with a trusted family member. The photocopies can help in the event that original documents are lost and must be replaced.

These document requirements may seem daunting, but remind your employees to take the extra trouble to ensure proper documentation is within reach at all times to help them avoid prolonged questioning, or worse, temporary detention by law enforcement and ICE for failure to document lawful status.

Please share this Immigration Update with your employees.  While your employees have valid work authorization, they still must be prepared to show such authorization or permission to be in the United States if stopped by state or local law enforcement and requested to provide the proof or if stopped by ICE.