What to Expect When You Pass Through U.S. Immigration: A Guide for Non-immigrant Employees and Other Business Travelers (Part 2)

IV. WHAT CAN A NONIMMIGRANT DO IF THE CPB OFFICER INDICTATES AN INTENTION TO DENY ENTRY?

The CBP unit at Newark Airport has confirmed that it began "random checks" for returning H-1B, L-1, and other business visa holders. If selected for such an audit, the person will be taken into a back office where one or several CPB Officers, possibly with an officer of ICE, will question and examine documents with the assistance of several computer databases. CPB at Ports of Entry now have the capability of comparing documents presented with those filed in the past with USCIS and the US Consulate. These databases are also capable of accessing other governmental records such as tax, motor vehicle, and real estate, and have additional access to aggregated personal data purchased from credit bureaus and other vendors. This gives CPB some capability to trace back the whereabouts and activities of a person, where he has lived, worked, and made consumer purchases in the United States.

If taken into secondary inspection, the CPB will be looking for documentary discrepancies and other indications of fraud, and any criminal record or indicator of a potential security threat.

Aliens seeking admission as H-1B workers have, and should be thoroughly familiar with the contents of their petitions and supporting documents, as well as the rest of their immigration record. Before departing for foreign travel, the worker should obtain a complete copy of their LCA Public Inspection Files, non-immigrant petition(s) and attachments, and review these with the company's compliance officer or attorney. Any discrepancies or potential issues should have been identified and the employee counseled and familiar with the details and potential consequences of travel.

If these records are bulky, they may be put on an electronic format, such as a computer disk or USP flash drive, ready for presentation and review with an Immigration officer during secondary inspection. These documents should not be encrypted, or be in a foreign language without certified translation, or stored in the memory of a laptop or other recording device, unless the owner does not mind temporarily giving up possession, which can and does happen at the border. [See Appendix I, CBP Policies and Procedures for inspection and seizure of computers]

Generally, refusals are based in discrepancies in statements and records, rather than an assertion of independent judgment about the merits of a petition that has already been adjudicated by USCIS and a U.S. Consul. If, in such a rare instance that the CPB officer appears to have re-adjudicated the merits of a petition, the applicant is entitled to request review by the Supervisory Inspections Officer at the Port-of-Entry.

Any H-1B worker who is facing possible refusal should request that the supervising CBP officer review the matter and discuss the issues with his/her employer and G-28 attorney. That request should be framed as an offer of additional information not known or available to the employee.

The responsible company compliance officer most familiar with the matter, and/or the attorney, should be immediately available for telephonic interview by CBP. Upon arrival, the nonimmigrant should call a pre-arranged number to alert the designated point of contact of arrival, and that he/she is entering U.S. Immigration area at the airport. The free use of phones is not permitted inside the inspections area. If after an hour, no further word is received from the arriving employee, the contact person should assume there has been a problem, and be prepared to attempt to initiate communication from the outside with the CBP supervisor at the airport. CPB guidelines say that a person should be allowed to make a call if (s)he is to be detained or delayed for more than two hours – this is not always granted.

If after escalation and conference, admission can not to be granted, a request should be made for deferred inspection, so that the admission decision can be made at a later date. DI is normally conducted with attorney representation at the District ICE/USCIS office.

If the grounds for removal appear to be of the sort that can be overcome upon review, such as a technical defect in the travel documents or an error in the record, a 212(d)(3) waiver of inadmissibility can be filed on the USCIS Form I-601, Application for Waiver of Ground of Inadmissibility, either at the airport or upon deferred inspection, and the person may be admitted.

If requests for DI or a waiver are also denied, a final effort should be made to convince CBP to allow the person to withdraw the application for admission, instead of issuance of a formal "expedited removal" order by the CBP. A withdrawal of a request for admission is made on a Form I-275, Record of Withdrawal a copy of which is not provided to the applicant. The bearer's nonimmigrant visa will also be cancelled, and the person required to depart on the next available flight back to her country. The Inspector's Field Manual , § 17.2 states, in relevant part–

Withdrawal of Application for Admission.

General. [. . .]

A nonimmigrant applicant for admission who does not appear to the inspecting officer to be admissible may be offered the opportunity to withdraw his or her application for admission rather than be detained for a removal hearing before an immigration judge or placed in expedited removal. An alien cannot, as a matter of right, withdraw his or her application for admission, but may be permitted to withdraw if it is determined to be in the best interest of justice that a removal order not be issued. Before allowing an alien to withdraw, you must be sure that the alien has both the intent and the means to depart immediately from the United States. See section 235(a)(4) of the Act and 8 CFR 235.4.

Withdrawal is strictly voluntary and should not be coerced in any way...

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