Employment-Based Visa Holders
U.S. Customs and Border Protection (CBP) at the Newark, New Jersey International Airport recently instituted a new policy to conduct random checks for employment-based visa holders, including foreign nationals in H and L status. CBP informed the American Immigration Lawyers Association about the new policy in response to an inquiry about several instances in which H-1B visa holders were extensively questioned about their employers, the computation and rate of their pay, and their job duties. After questioning, some of these foreign nationals were subjected to expedited removal from the United States, and visa cancellation.
While CBP told the American Immigration Lawyers Association that the questioning of the H-1B workers was related to a particular ongoing investigation, the agency also stated that CBP officers would now conduct random checks of H, L, and other employment-based visa holders. The ostensible purpose of the random checks is to confirm the bona fides of a visa holder’s employment situation, and ensure that they conform to the information in the petition filed on the visa holder’s behalf. If the initial check leads to a question about a visa holder’s admissibility to the United States, the visa holder will be sent to “secondary inspection” for a more in-depth interview with CBP.
CBP stated that if an officer discovers discrepancies between the information provided by the visa holder and a petition or petitions filed by the employer, the officer may request that the visa holder withdraw his or her request for admission to the United States and return to his or her home country. Alternatively, in more egregious circumstances, the CBP officer may place the visa holder in expedited removal, a proceeding that bars the visa holder from returning to the United States for five years.
Returning Lawful Permanent Residents with a Post-1998 Conviction
CBP may also detain a returning Lawful Permanent Resident (LPR) who has a post-1998 criminal conviction. CBP at the Newark Airport stated that it adopted a mandatory detention policy for LPR’s who have post-1998 convictions. The LPR may be released in the event that CBP cannot get a copy of the conviction record within 24 hours. CBP also stated that it would consider release in extenuating circumstances, such as families traveling with children.
Conditional Residents with Pending I-751 Petitions or ADIT Lawful Permanent Resident Stamp
CBP at Newark International Airport stated that a conditional resident who obtained lawful permanent resident status through marriage and has a pending I-751 petition to remove the conditions on his or her residence will also be subject to additional procedures at entry. Such conditional residents who are returning to the United States via Newark airport with an I-751 filing receipt or an ADIT Legal Permanent Resident stamp (which is added to a passport or Form I-94 as temporary proof of residence) will be sent to secondary inspection for further questioning on the validity of the I-751 petition.
How This Affects You
The announcement by CBP at the Newark Airport may signal a similar tightening at other ports of entry. Foreign nationals traveling on employment-based temporary visas should be prepared for additional questioning at entry. Prior to travel, visa petitions should be reviewed to ensure that all details are accurate. Foreign nationals should be familiar with the information provided in any petition filed on their behalf by their employers, and should be able to corroborate that information orally. In addition, employment-based temporary visa holders should carry full copies of the petitions filed on their behalf by their employers and their two most recent pay statements. Travelers should also be aware that CBP retains the discretion to review material and information on laptops and other electronic devices.
CBP does not need to permit a traveler to call legal counsel if there is a problem at entry. Indeed, most CBP officers do not allow such phone calls. However, should an employee face an uncomfortable interview at entry and be permitted to contact his or her employer, the employer should contact immigration counsel immediately upon learning the details. Immigration counsel may be able to follow up with the officer or the CBP port director at the particular port of entry and gain additional information.
In addition, employers should be prepared to confirm the assertions made in any nonimmigrant petition and supporting documentation in case of a telephone inquiry by a CBP officer. Finally, employers should note that the government may review information in any public venue, including websites and other media, so such public information should be accurate and current.
If you have a traveling employee who may be impacted by the mandatory detention policy for post-1998 convictions, or the secondary inspection policy for those who have pending petitions to remove the conditions on lawful permanent residence, contact your immigration counsel for further information and advice.
Morgan Lewis will continue to monitor this process and will update you with any new information. If you have any questions about any of the issues raised in this Morgan Lewis Immigration Alert, please contact:
A. James Vázquez-Azpiri