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CBP Inspections Of H-1B Visa Holdersby Matthew MorseIn some recent cases US Customs and Border Protection (CBP) inspecting officers have separated H-1B visa holders from other non-immigrants applying for admission into the United States on arriving at a port entry. Several of these H-1B visa holders were denied admission by CBP inspecting officers and placed on an aircraft to be returned to their home countries. Unfortunately, some of these H-1B visa holders were placed in expedited removal by CBP inspecting officers, rather than being permitted to withdraw their applications for admission, which resulted in these individuals potentially being barred from re-entering the United States for a five-year period. Such treatment has been reported at John F Kennedy International Airport, New York and Newark International Airport, New Jersey. This treatment of H-1B visa holders by CBP inspecting officers may be the result of a memorandum issued on January 8 2010 by Donald Neufeld of US Citizenship and Immigration Services (USCIS). Many H-1B beneficiaries work not at the H-1B petitioner's facility, but at the facility of the petitioner's customer. The memorandum is intended to clarify what constitutes, in a H-1B context under the regulations, an employer-employee relationship between a petitioner and a beneficiary, particularly when the beneficiary is assigned to the petitioner's customer's facility. Based on reports of those H-1B beneficiaries recently denied admission, it appears that CBP inspecting officers may have required beneficiaries to prove that an employer-employee relationship existed between them and their petitioners, especially in those cases where they were working at customer locations. Where the beneficiaries were unable to prove this to the satisfaction of the CBP inspecting officer, they were denied admission. There may have been cases where the CBP inspecting officer was not aware that H-1B beneficiaries may work at customer locations and so denied admission because the H-1B beneficiary entered the United States not at a port of entry near the H-1B petitioner's facility, but rather a port of entry near the H-1B petitioner's customer's location. It is unclear what type of training CBP inspecting officers may have received with respect to the employer-employee relationship issue within a H-1B context, if any. It is also unclear how familiar CBP inspecting officers are with the definition of 'employer' under the H-1B regulations. According to the USCIS memorandum, the issue of what constitutes an employer-employee relationship is based on many factors, so the issue can be complex. There is also controversy over the USCIS memorandum due to the legal arguments within it - it has been suggested that the manner in which it was issued violates government rule-making procedures set out in the Administrative Procedures Act. As a result, it is unclear how much weight is being given to the memorandum by CBP port directors and inspecting officers at ports of entry other than John F Kennedy and Newark. Each application for admission is supposed to be treated separately and the facts of each case are different. As a result, it is hard to know precisely why each H-1B visa holder was denied admission. However, given the fact that the memorandum was issued around the same time as the reports of H-1B beneficiaries being denied admission at US ports of entry, H-1B visa holders should be prepared for the inspection process as thoroughly as possible. As a result, H-1B visa holders should:
The Attorney General may, in his or her discretion, permit any alien applicant for admission to withdraw his or her application for admission in lieu of removal proceedings under section 240 of the Act or expedited removal under section 235(b)(1) of the Act. The alien's decision to withdraw his or her application for admission must be made voluntarily, but nothing in this section shall be construed as to give an alien the right to withdraw his or her application for admission. Permission to withdraw an application for admission should not normally be granted unless the alien intends and is able to depart the United States immediately. An alien permitted to withdraw his or her application for admission shall normally remain in carrier or Service custody pending departure, unless the district director determines that parole of the alien is warranted in accordance with 212.5(b) of this chapter."If the foreign national is permitted to withdraw his or her application, the foreign national's visa will likely be revoked. The foreign national will need to apply for a new visa at a US consulate abroad. The advantage of being permitted to withdraw the application for admission is that it avoids the issuance of an expedited removal order. A person issued with an expedited removal order cannot return to the United States for five years. A person permitted to withdraw his or her application for admission is eligible to reapply for a visa at a US consulate and is not barred from entering the United States for any period of time. CBP does have a process for submitting complaints concerning CBP processing at a port of entry. These complaints may be made in writing or orally to a CBP port director. Complaints may also be made to the CBP Customer Service Centre.1 End Notes 1Customer Service Centre, OPA--CSC--Rosslyn, US Customs and Border Protection, 1300 Pennsylvania Avenue, NW, Washington DC, 20229. Tel +1 703 526 4200 or +1 877 CBP 5511.
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