Travel Advisory for US Temporary Workers: H-1B, L-1, E-1/2, TN, E-3, O-1

US CBP (Customs and Border Protection) Officers around the country, particularly in Newark, New Jersey, have been turning away valid visa holders at an alarming rate.

In some cases, CBP Officers are canceling the visas, and issuing orders of expedited removal. Expedited removal is a procedure by which persons are deemed inadmissible at a Port-of-Entry (including Pre-Flight Inspection), as a result of commission of material misrepresentation, or lack of documentation to prove eligibility for an immigration or nonimmigrant status. Expedited removal results in a five year ban from entering the US.

Reports from AILA liaison indicate that travelers are directed to secondary inspection by CBP Officers, and coerced into signing statements which are then used as the basis for expedited removal. CBP has also confirmed that at least several cases involved companies which were under investigation by ICE (Immigration and Customs Enforcement), or the CIS (Citizenship and Immigration Service) for ongoing H-1B program fraud.

While these things have been happening for years, it is believed the recently issued memo has led CBP to increase their enforcement efforts by targeting travelers who work for IT Consulting companies, or at third party worksites.

It should noted the CBP has the right to determine if someone seeking entry to the US is eligible for admission. So, a valid visa, or “Approval Notices” do not guarantee entry.

Notably, Form I-797 Approval Notices include the following new fraud language:

NOTICE: Although this application/petition has been approved, DHS reserves the right to verify the information submitted in this application, petition, and/or supporting documentation to ensure conformity with applicable laws, rules, regulations, and other authorities. Methods used for verifying information may include, but are not limited to, the review of public information and records, contact by correspondence, the Internet, or telephone, and site inspections of businesses and residences. Information obtained during the course of verification will be used to determine whether revocation, rescission, and/or removal proceedings are appropriate. Applicants, petitioners, and representatives of record will be provided an opportunity to address derogatory information before any formal proceeding is initiated.

What should you do to prepare?

A.) Consider withdrawing your application for admission. This is an option available to you at initial inspection or deferred inspection, but may or may not be permitted by CBP. Available guidance tells us that withdrawal is not a given where there is an obvious deliberate fraud. But if someone acted “innocently or through ignorance, misinformation or bad advice, obtained an inappropriate visa, withdrawal should be given.

NOTE: In some of the cases being reported over the last several months, travelers were not advised they could request to withdraw their application for admission to the United States. So, you might have to pro-actively make this call, as opposed to waiting to be given the option by CBP.

B.) Make sure you carry fresh documentation to confirm you continue to meet the requirements for your particular visa category. For example, if you are an H-1B visa holder, have 2 recent paystubs. Depending on the circumstances of your particular case, you may also wish to have a letter from your Employer, confirming that you continue to be employed in good standing, and that while working, you are always under the direction and control of the H-1B Employer (as opposed to a third party company).

C.) Prepare yourself for questioning by US CBP. We suggest reading a copy of your underlying visa petition, and practicing answers to commonly asked questions, out loud.

D.) Prepare the company (your immediate supervisor) for a phone call. CBP has been calling employers to ask, among other things, why a US worker was not hired for your position.

E.) Discuss any concerns with your immigration attorney. Please call us if we may be of assistance.

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