The Immigration Law Group of Meyner and Landis LLP has recently learned that Customs and Border Protection (“CBP”) inspectors have been issuing expedited removal orders to certain H-1B nonimmigrant workers seeking re-entry into the United States at Newark Liberty International Airport in New Jersey. Reportedly, the H-1B visa holders targeted for such inspections have been independent contractors, self-employed beneficiaries, and beneficiaries working at third-party worksites. The CBP inspectors’ questions focused on who the individuals worked for, how their pay was computed, who paid their salary, their job duties, and what the amount were paid. In some cases, the individuals were subjected to expedited removal and visa cancellation.
After inquiring with CBP headquarters about these incidents, the CBP Liaison Committee of the American Immigration Lawyers Association was advised by CBP that several of these cases involved companies under investigation by U.S. Immigration and Customs Enforcement (“ICE”) and/or U.S. Citizenship and Immigration Services (“USCIS”) for ongoing fraud.
CBP’s new, unannounced policy involves conducting random checks for returning H-1B, L-1, and other employment-based visa holders. Based upon the initial check, if the CBP officer determines the foreign national’s admissibility is questionable, then he or she will be sent to secondary inspection for further interview. In some cases, if CBP discovers discrepancies in previously filed petitions, then the applicant may be asked to withdraw his/her application for admission into the United States or be subject to expedited removal.
CBP has claimed that those questioned are offered the opportunity to contact their consulate. While CBP officers, at times, have contacted the H-1B petitioner and/or current employer when clarification was necessary, they have not permitted the interviewee to contact legal counsel.
With this new policy, CBP officials have been authorized to institute expedited removal when they believe that an individual is entering the U.S. in violation of the terms and conditions of his/her visa. Expedited removal, in which the government covers the costs of the return airline ticket, bars the individual from reentering the U.S. for a period of five years.
This post serves as a wakeup call for all nonimmigrant workers with upcoming travel plans abroad. They should prepare for their return trip to the United States in advance by reviewing (and having with them) all pertinent documents to their visa petition. They should also have with them (on their person or in carry-on baggage) evidence to support the assertions made in the petition (i.e. current paystubs, a letter from their employer which reflects they are, indeed, employed at the location listed in the petition). Similarly, the employer’s representative (the signatory on the forms) should be notified of the travel plans and thus prepared for telephone inquiries from CBP officers at ports of entry to confirm the assertions made in any nonimmigrant petition and supporting documentation. Finally, employers should note that the government is entitiled to review information posted in any public media (such as websites and other media) for consistency with the content of the nonimmigrant petition. Thus, keeping such public information accurate and current is essential.
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