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CBP Inspections Of H-1B Visa Holders

by Matthew Morse

In 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:

  • have a passport valid for at least six months;
  • have a valid H-1B visa stamp in the passport;
  • bring the original H-1B approval notice;
  • bring a copy of the H-1B petition filing with supporting documents;
  • bring a copy of the signed offer letter;
  • bring copies of pay slips from the H-1B employer (if available);
  • bring copies of W-2s issued by the petitioner to the beneficiary (if available);
  • bring a current letter from the H-1B employer attesting that it continues to support the H-1B petition and confirming the work that the beneficiary will perform;
  • bring a copy of an employer memo to the CBP inspecting officer providing the definition of 'employer' under the H-1B regulations and showing how the employer meets this definition;
  • bring a letter from the petitioner's end customer;
  • bring a copy of the beneficiary's lease agreement or mortgage statement, reflecting where the beneficiary is living (if available);
  • dress in a professional manner (no jeans or t-shirts);
  • be prepared to answer any questions related to the H-1B employment, from the duties to be performed to the location where the employment is to take place;
  • limit answers to those questions asked by the CBP inspecting officer (without offering any more information than is necessary);
  • be polite, even if the CBP inspecting officer is not; and
  • ask to speak to a CBP supervisor if the CBP inspecting officer continues to be rude or combative.

If a foreign national has a problem with CBP processing at a port of entry, he or she should call a lawyer. However, legal protections that US citizens take for granted (eg, the right to a hearing, legal representation) may not apply.

If the foreign national is not allowed to call anyone and the CBP inspecting officer threatens to place the foreign national in expedited removal, the foreign national should ask the CBP inspecting officer to withdraw his or her application for admission. The authority for this is contained in the Code of Federal Regulations. Chapter 8, Section 235.4 of the code provides the following:

235.4 - Withdrawal of application for admission

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.

About The Author

Matthew Morse has been an immigration attorney for ten years, focusing on employment-based and family-based immigration law issues. He has experience with H, L, TN, O, K, B visas, as well as with Labor Certifications, Visa Processing, Adjustment of Status, and healthcare worker immigration issues. Mr. Morse also has experience with Extraordinary Ability Alien cases, National Interest Waiver physician petitions, Advance Degreed Professionals cases, Multinational Managers and Executives cases, J-1 waiver issues, and Naturalization law issues. Prior to practicing Immigration law, Mr. Morse practiced Gaming and Real Property Law, as well as Contract Law in Detroit, Michigan. Mr. Morse held internships with the Michigan Attorney Generalís Office, the Michigan Department of Environmental Quality, and the Wayne County Prosecutorís Office.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.