Passport requirements for travel between a US territory and a US state

Question

I am trying to find out what US law says about foreign travelers flying between US territories and the "mainland." For example, flying from Guam to Hawaii or from Puerto Rico to Florida.

8 CFR 215.1(g) and (h):

(g) The term geographical part of the United States means:
(1) The continental United States,
(2) Alaska,
(3) Hawaii,
(4) Puerto Rico,
(5) The Virgin Islands,
(6) Guam,
(7) American Samoa,
(8) Swains Island, or
(9) The Commonwealth of the Northern Mariana Islands (beginning November 28, 2009).

(h) The term depart from the United States means depart by land, water, or air:
(1) From the United States for any foreign place, or
(2) from one geographical part of the United States for a separate geographical part of the United States: Provided, That a trip or journey upon a public ferry, passenger vessel sailing coastwise on a fixed schedule, excursion vessel, or aircraft, having both termini in the continental United States or in any one of the other geographical parts of the United States and not touching any territory or waters under the jurisdiction or control of a foreign power, shall not be deemed a departure from the United States.

US Customs and Border Protection's page on the matter is terribly confusing and does not adequately address the case of someone who is neither a US citizen nor lawful permanent resident. However, it does seem to imply that a foreigner requires a passport to fly between territories and states:

Will travelers from U.S. territories need to present a passport to enter the United States?

U.S. Citizens and Lawful Permanent Residents (LPR's) who travel directly between parts of the United States, which includes Guam, Puerto Rico, U.S. Virgin Islands, American Samoa, Swains Island and the Commonwealth of the Northern Mariana Islands (CNMI), without touching at a foreign port or place, are not required to present a valid U.S. Passport or U.S. Green Card.

However, it is recommended that travelers bring a government issued photo ID and copy of birth certificate.

It also is recommended that you carry proof of your LPR status at all times in the event you are asked to prove your status. This may be in the form of a green card or passport.

Hawaii is a U.S. state and therefore passport documentation requirements for U.S. citizens and LPR's do not apply.

Entry requirements for non-U.S. citizens are the same as for entering the United States from any foreign destination. Upon departure, a passport is required for all but U.S. citizens.

Questions about requirements for domestic travel should be directed to Transportation Security Administration (TSA). TSA can be reached at 1-866-289-9673.

This seems to imply that the rules are different for travel between (for example) Alaska and Hawaii than they are between Guam and Hawaii, even though there is no such distinction to be found in the regulation.

Furthermore, at 8 USC 1101(a)(38), the general definition of "United States" for the purpose of immigration law is given as

(38) The term “United States”, except as otherwise specifically herein provided, when used in a geographical sense, means the continental United States, Alaska, Hawaii, Puerto Rico, Guam, the Virgin Islands of the United States, and the Commonwealth of the Northern Mariana Islands.

It is therefore odd that the text makes a distinction between such travel and "domestic travel," when it seems that according to immigration law such travel is domestic travel.

Is there some other basis to be found in US law for a requirement that foreigners have a passport when flying directly between US territories or between a US territory and a US state? Is there some basis that justifies treating these flights differently from flights to or from Alaska or Hawaii?

Answer 1

I am trying to find out what US law says about foreign travelers flying between US territories and the "mainland." For example, flying from Guam to Hawaii or from Puerto Rico to Florida.

Your question contains everything needed to reach the correct answer.

Foreign travelers traveling between Guam and Hawaii, or Puerto Rico and Florida, need to present their passports, just as if they came to the destination directly from abroad.

In contrast, U.S. citizens and U.S. green card holders (i.e. lawful permanent residents) do not need to present passports to make these trips.

Foreign travelers traveling between U.S. states (e.g. California and Hawaii), however, do not need to present passports a second time for immigration purposes. As a practical matter, however, you need to present a qualifying government issued photo ID to board any commercial airplane flight depart from the U.S. to anywhere (even from New York to New Jersey), and usually foreign travelers use their passports for that purpose.

So, the lack of a need for a passport is only relevant in most cases for foreign travelers when traveling by sea or train or bus or taxi between U.S. states without leaving the Unites States (most notably for trips by ship from California, Oregon, Washington State, or Alaska to Hawaii, or trips by ship from Alaska to California, Oregon, Washington State or Hawaii, with no intermediate foreign stops).

Answer 2

According to INA §212(d)(7):

The provisions of subsection (a) (other than paragraph (7)) shall be applicable to any alien who shall leave Guam, the Commonwealth of the Northern Mariana Islands, Puerto Rico, or the Virgin Islands of the United States, and who seeks to enter the continental United States or any other place under the jurisdiction of the United States. The Attorney General shall by regulations provide a method and procedure for the temporary admission to the United States of the aliens described in this proviso. Any alien described in this paragraph, who is denied admission to the United States, shall be immediately removed in the manner provided by section 1231(c) of this title.

Now, (a)(7) concerns the documentation requirements (an unexpired immigrant visa for an immigrant, or a passport and unexpired nonimmigrant visa for a nonimmigrant), so for example, an F-1 student who is leaving Puerto Rico for Florida does not need to have an unexpired F-1 visa. However, since this statute does authorize DHS to check whether the traveller is inadmissible for some other reason, I think a reasonable way to implement that statute would be to require a passport for travellers who are not US nationals in order to verify their identity and check databases that might indicate that the traveller is inadmissible.

It could even be argued that §212(d)(7) makes it mandatory for DHS to at least attempt to turn away inadmissible aliens who are trying to travel to a US state from a US territory. Obviously, there is no such affirmative duty for DHS to vet aliens travelling between two states.

(Note: The current version of the CBP article (retrieved from here) has the text "Upon departure, a passport is required for all but U.S. citizens" in the paragraph about Hawaii. I'm pretty sure this is a typo.)

Answer 3

No, you won't need one (Covid passport, another story altogether....). I have traveled to both Mexico and Canada and have never been asked for my passport. I would be stunned to find that travel to a US territory would have different rules. However, a travel agent would know; one quick call will get you on track! Hope this helps!

Answer 4

ANSWER: YOU NEED A PASSPORT TO TRAVEL BETWEEN ANY OF THE 50 STATES AND ANY TERRITORY OR BETWEEN ANY TWO TERRITORIES

Reason is paragraph 5 from your second yellow block

"Will travelers from U.S. territories need to present a passport to enter the United States?

Entry requirements for non-U.S. citizens are the same as for entering the United States from any foreign destination. Upon departure, a passport is required for all but U.S. citizens."

"Provided, That a trip or journey upon a public ferry, passenger vessel sailing coastwise on a fixed schedule, excursion vessel, or aircraft, having both termini in the continental United States or in any one of the other geographical parts of the United States and not touching any territory or waters under the jurisdiction or control of a foreign power, shall not be deemed a departure from the United States."

I'd rather not analyze more, but if you ask me to I will.