Publication
Supreme Court Expands U.S. Customs and Border Protection Discretion Over Returning Green Card Holders
The Supreme Court’s decision in Blanche v. Lau is a border-processing decision with practical implications for employers whose lawful permanent resident (green card) employees travel internationally.
The decision does not change the criminal grounds of inadmissibility or ordinary Form I-9 rules. Instead, it affects the practical discretion Customs and Border Protection (CBP) has when a green card holder returns to the United States and CBP identifies a potential criminal or related inadmissibility issue under INA § 212(a)(2).
In practical terms, CBP may subject certain returning green card holders to additional inspection, parole, or removal proceedings without first proving the underlying issue by clear and convincing evidence at the airport or port of entry. CBP may take that approach based on the alleged commission of a covered offense, even if there is no conviction at the time of reentry.
The risk is most relevant where a returning green card holder has pending charges, prior arrests that may indicate a covered issue, prior convictions, or other unresolved criminal issues. The relevant criminal and related inadmissibility categories are listed in INA § 212(a)(2), 8 U.S.C. § 1182(a)(2).
Potential Employer Impact and Planning Considerations
The principal employer-facing risk is disruption to business travel and workforce continuity. Employers with international travel programs may want to consider whether delayed or complicated reentry could affect business-critical roles, customer commitments, executive coverage, regulated operations, or project timelines.
Potential impacts and planning considerations include:
- Delayed return to work. A green card holder employee may face delayed or complicated reentry after international travel.
- Interrupted business travel. The risk may be most relevant for employees whose roles depend on predictable international travel, including executives, sales personnel, engineers, researchers, client-facing employees, and project-critical personnel.
- Future travel uncertainty. If an employee is paroled rather than admitted, future travel may remain uncertain while deferred inspection, criminal proceedings, or removal proceedings are pending.
- Internal escalation procedures. HR, mobility, legal, travel, and business teams may want procedures for escalating employee reentry delays or border-related issues.
- Voluntarily reported criminal matters. When an employee voluntarily reports an arrest, pending charge, conviction, or other criminal matter in connection with international travel, the issue may have immigration, travel, and workforce-planning implications.
Key Takeaways
Green card holders who travel internationally for business or pleasure are not guaranteed re-admission into the United States. Blanche v. Lau gives CBP greater practical discretion at reentry, which may increase uncertainty for green card holder employees with unresolved criminal issues. Employers with foreign national employees, including green card holders, should be aware of these risks and their potential impact on the company’s business issues before approving international travel.
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