The Department of Homeland Security has significantly expanded immigration enforcement at domestic airports, arresting foreign nationals with expired immigration status, notably including individuals with pending immigration applications, as they travel within the United States. This represents a dramatic escalation in interior enforcement that may affect employers, sponsored workers, and foreign nationals across a wide range of visa categories.

Recent reporting confirmed Immigration and Customs Enforcement (ICE) agents have been conducting arrests of foreign citizens with expired immigration status at domestic airport terminals across the country. Enforcement actions have been reported at no fewer than 15 airports in recent weeks, with plainclothes ICE agents making arrests at check-in counters and arrival gates. Immigration officers are now averaging between 20 and 40 arrests per day. This follows ICE’s commitment to arrest at least 2,000 immigrants per day, doubling efforts from this time last year.

This program also represents an expansion of the TSA/ICE collaboration, with TSA sharing passenger information with ICE for enforcement purposes. The original collaboration only targeted individuals with outstanding deportation orders. As recent reports indicate, individuals whose immigration status has expired, including those who are in the U.S. and have bona fide pending immigration applications, are now being targeted.

Those Potentially Affected

Examples of detained foreign nationals include:

• Nonimmigrants on work visas whose underlying I-94 record has lapsed but filed timely extensions or change of status applications or adjustment of status applications that are pending;
• Foreign nationals who have overstayed and have pending marriage-based green cards pending and would typically qualify for “forgiveness;”
• Current and former exchange visitors (i.e., J-1 visa holders) who have filed applications to remain in the United States and may hold valid Employment Authorization Documents;
• Asylum applicants with active, pending applications and not issued a final removal order; and
• Foreign nationals whose underlying immigration status has technically expired but who have legitimate pending applications with DHS.

Critically, many of these individuals may have valid status: they have entered the U.S. lawfully, filed timely applications, and are awaiting government adjudication. However, reporting indicates the current administration appears to view any visa overstay, lapse in I-94, or underlying visa status as a basis for arrest, regardless of pending applications. Due to increased processing times across the majority of nonimmigrant and immigrant categories, many foreign nationals could be considered at risk even with a timely filed bona fide petition.

Practical Impact & Considerations

This enforcement posture represents a significant departure from prior practice. Historically, individuals with pending, timely-filed applications were deemed to be present lawfully and therefore not prioritized for enforcement, particularly when traveling domestically. The current approach does not appear to distinguish between individuals who are genuinely out of status with no pending applications and those who are in a recognized period of authorized stay while an application is adjudicated. While many individuals being targeted under this program have colorable legal arguments against removal, particularly those with pending, timely-filed applications, arrest and detention obviously is a major disruption to both a foreign national and the employer.

Employers should actively audit their population for those at risk and limit any air travel for them. Employers should also consider upgrading pending applications through the USCIS premium processing service, if eligible. Foreign nationals with pending applications should limit air travel. If you must travel, carry copies of any pending USCIS receipts, Employment Authorization Documents, I-797 Approval Notices, and evidence of timely filing. While this may not prevent an arrest, it may be relevant in subsequent proceedings. Travelers are also reminded that they have the right to remain silent and the right to speak with an attorney if they are approached by immigration enforcement agents. Travelers should also not sign any documents without consulting legal counsel. 

We recommend reaching out to your Pryor Cashman attorney with any questions or concerns regarding this development.

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Associate Mary Connelly was a contributing author to this client alert.