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?

  • A simple solution: if international waters are considered partly "under the jurisdiction or control of a foreign power", which under international law, I think they are under everyone's mutual control, then those cases are considered to depart the US, and so foreigners need to provide their passports. Also, as a practical matter, when flying these days in the US, you need to be able to identify oneself; for nearly all foreigners the only acceptable credential they can obtain is a passport. – sharur Oct 11 '18 at 20:24
  • I'd be interested to know how the CBP official at the departing airport in (for example) Guam would even determine whether or not to ask you about your status. Are they allowed to do some sort of 'profiling'? I am neither a citizen nor LPR (yet), but I do have a US drivers license - and because I've recently renewed it (and still have the paper temporary) it doesn't have the 'limited term' notation at the top. Seems like I could (in theory) just flash that & say I'm LPR if asked ... – brhans Oct 11 '18 at 20:27
  • @brhans that seems rather foolhardy; what if they then ask for your green card? You'd be in for a world of trouble if they discovered that your claim to be an LPR was false. – phoog Oct 11 '18 at 20:34
  • Well - ok then - I'll take it one step further and say I'm a citizen (hypothetically of course) - just seems like this exit-check is somewhat arbitrary since there doesn't seem to be a reliable way for a CBP official to even determine whether or not to ask about my status. – brhans Oct 11 '18 at 20:48
  • @brhans a similar situation exists for people traveling between Ireland and the UK. But the reason I posted here on Law is to find out what the law says about it rather than the practical aspects of how likely the officers are to identify or overlook people who are subject to any purported requirement. Suppose you just said "I'm a nonimmigrant alien; here's my driver's license": what does the law say about that? Could the officers prevent you from flying? – phoog Oct 11 '18 at 21:04

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