New Scrutiny of H-1B/L-1 Travelers on Reentry

Returning H-1B, L-1, and employment-based visa holders may face new scrutiny when entering the United States. There were several recent reports that certain H-1B workers were subjected to intense review and even refusal of admission by U.S. Customs and Border Protection (CBP) officers at the Newark, New Jersey airport port of entry. In at least some of these instances, CBP officials were assisting in investigations involving certain H-1B nonimmigrants from India and certain H-1B petitioner companies. The CBP officer questions included who the individuals worked for, how their pay was computed, who paid their salary, what their job duties were, and what they were paid. In some cases, the individuals were subjected to expedited removal and had their visas cancelled.

Reports indicate that several of these cases involved companies under investigation by U.S. Immigration and Customs Enforcement (ICE) and/or United States Citizenship and Immigration Services (USCIS) for ongoing fraud. In the Newark enforcement actions, CBP Newark worked closely with USCIS – Fraud Detection and National Security (FDNS) and the Department of Labor – Office of Investigations. In addition, CBP Newark apparently implemented a policy of conducting random checks for returning H-1B, L-1, and other employment-based visa holders. If the individual’s admissibility is deemed questionable during primary inspection, he or she will be sent to secondary inspection for further questioning. If CBP discovers discrepancies in previously filed petitions, it is possible that the applicant may be asked to withdraw his or her application for admission into the United States or be subject to expedited removal (an immediate deportation that can include a five-year bar on readmission).

What can employers of H-1B, L-1, or other foreign national workers expect in the near term? While the initial reports are focused on Newark, one can reasonably expect similar tactics to be introduced at other ports of entry as well. These efforts seem to be the next stage of fraud detection, following the H-1B employer site visits that started in the summer of 2009 by FDNS. Thus, H-1B travelers seeking readmission may be asked about facts surrounding H-1B petitions. Those questioned may be offered the opportunity to contact their home country consulate. (CBP’s position is that applicants for admission have no right to counsel and therefore will not be accorded an opportunity to contact an attorney.) CBP officers may contact the petitioner and/or current employer for clarification of facts about the H-1B employment. If upon a review of the facts the CBP officer determines the H-1B individual to be inadmissible (which could be due to a simple documentary deficiency or visa/petition fraud), CBP may allow the applicant to withdraw his or her application for admission (and depart the United States) or subject the applicant to expedited removal should the totality of the circumstances warrant.

What can be done to ease anxiety and problems encountered upon reentry to the United States? Employers must be prepared for possible ad hoc telephone inquiries from CBP officers at ports of entry. Designating a responsible person (and filing H-1B petitions with the person’s contact information listed in the employer sections on Form I-129) to respond to CBP calls might be helpful. The designated person should be familiar with the H-1B petition facts and/or have access to a copy of the H-1B petition as well as current employment information (e.g., salary, etc.). H-1B, L-1, or other foreign national workers should be provided a copy of his or her petition and make themselves familiar with the basic information provided therein. Both employers and foreign national workers should be mindful of information provided in any public forum, particularly on the Internet. H-1B and L-1 petition approval notices now contain specific “warnings” indicating that government officials may seek information from a variety of sources to review continued eligibility for the status. CBP officials at ports of entry may thus visit company websites, worker postings to social networking sites (such as Facebook, Twitter, etc.) to compare the information contained in the petition, responses from the worker applying for readmission, and statements from employers made in response to a CBP telephone call. Where inconsistencies exist, the worker may be refused admission.

It would seem likely that many of the more intense reviews of travelers are commonly pre-determined – for example, based on an FDNS audit that concluded employer fraud was possible or likely – and thus even the best preparation cannot prevent an inquiry from occurring. However, a bit of preparation by both the employer and foreign national can help reduce the uneasiness and optimize the chances of a positive outcome.