What to Expect When You Pass Through U.S. Immigration: A Guide for Non-immigrant Employees and Other Business Travelers (Part 1)

INTRODUCTION:

This briefing will cover a range of issues and problems that nonimmigrant employees in the H-1B, L-1, and B-1 categories may encounter at Ports-of-Entry to the United States.

In previous decades, most business travelers found the process of clearing U.S. Immigration was quick, easy and non-intrusive. Few persons working for legitimate businesses encountered serious problems. Not many were ever closely questioned about the nature or location of their employment, their qualifications, or sources and amount of compensation; questions were rarely raised about the business activities of the employer. It was assumed that these questions and issues had already been satisfied before USCIS approved a petition and the U.S. Consul issued the visa.

In recent years, however, that has changed for many non-immigrants. Now, particular problems are encountered by a substantial number of arriving passengers from countries in Asia that provide the majority of H-1B skilled temporary workers. Similar questions are raised with some managers and specialized-knowledge employees of multinationals being transferred into the U.S. in the L-1A and L-1B categories. Arriving B-1 Visitors for Business also face much closer scrutiny than previously. We will cover some of the specific issues that arise for these categories of travelers in the sections below.

The basic process of U.S. Immigration inspections has not essentially changed. Before anyone can be granted admission into the United States, all international passengers must be screened by an officer of Customs and Border Protection (CBP). Upon encountering a nonimmigrant visa holder, the CBP officer may ask questions and take other steps to determine two essential requirements. To be admitted, the arriving alien must:

hold a lawful visa; and if already in non-immigrant status, that must have be lawfully maintained; and, have "bona fide non-immigrant intent" consistent with their visa status. Upon being satisfied of those issues, the person will be admitted in most cases for the duration of status without any delay. On most occasions the questions will be brief and to the point, such as "Do you still work for X-Y-Z Corporation in Chicago, Illinois?", or "How many H-1B visas have you held?" If, however, the officer develops reason to doubt the bona fides of the job offer or that the person has violated status in the past, the applicant will be sent to "secondary inspection" for further, more in-depth, questioning.

The pages that follow will go through that initial encounter and any secondary inspection so that the arriving nonimmigrant knows what to expect, can provide the proper documents, and is best able to respond to questions in a fully-informative and honest fashion that satisfies the requirements of the law, as well as the particular informal rules that CBP and other agencies have developed.

NOTE: As the reader will find, the actual agency rules are, increasingly, different from those written in the federal statutes and published agency regulations. In addition, the situation is further complicated by interpretations of the law drawn by CBP and ICE that differ in some particulars from those accepted by the other two agencies involved in immigration, the U.S. State Department and USCIS. Obtaining admission in H-1B, L-1 or B-1 status means that the person must satisfy several sets of standards. The knowledge of how these standards differ, and how they overlap, is essential to the ability of foreign workers to continue employment and their companies to operate in the United States.

1. OVERVIEW

   For several years, H-1B multinational managers and specialty workers arriving at U.S. ports-of-entry have experienced a rise in what many perceive as harassment and intimidation by CBP and ICE officers. The numbers of admissions refusals and visa revocations have risen sharply in recent years, at the same time that demand for these visas has dropped by more than 40 percent. There is a correlation. Agency policy has changed dramatically, but without a corresponding change in the underlying statute and published regulations. Most notably, the January 8, 2010 USCIS policy memo, the "Neufeld memo" alarmed many Indian nationals working on H-1B and L-1 visas for IT companies. That memo restated an informal USCIS policy that petitioning companies must document "control" over H-1B workers at all times, and placed strict limits on H-1B placements at Third-Party work sites. The memo also laid out several categories of applications that will not be approved, including so-called "body shops", staffing firms that place H-1B contractors at company sites for work that is unrelated to the petitioner's own line of business. This restriction, imposed by administrative edict, is similar to an outsourcing ban placed on L-1B Specialized Knowledge workers by law, the 2005 L-1B Reform Act. Off-site assignments for both categories remain legal, under certain limited circumstances. While there is no such explicit ban in the law that governs H-1B, nonetheless, USCIS, ICE and CBP enforce a de facto ban on H-1B outsourcing with varying degrees of strictness, and this variation in interpretation causes problems for arriving visa holders, and considerable anxiety because of uncertainty about how the law will be interpreted in any particular, individual case. Fears appear to have been well-founded. Within 72 hours, Customs and Border Protection (CBP) officers at Newark Airport Port-of-Entry (POE), reportedly citing the memo, detained and interrogated a number of lawfully employed IT consultants and technical workers arriving on a flight from India. A number of persons who were determined to be working off-site had their visas cancelled, many were forced to withdraw their applications for admission, and some were summarily removed, barred from reentry for at least five years. While there have not subsequently been similar mass interrogations and removals, and CBP has been retrained in implementation of the memo, arriving nonimmigrant visa holders must still be prepared to deal with questions and potential misunderstandings by CBP officers about the rules governing off-site work assignments. II. STEPS EMPLOYERS MUST NOW TAKE TO BE COMPLIANT WITH USCIS/ICE/CBP RULES, AND TO ASSURE H-1B READMISSION AT THE P.O.E.

   In times past, the questions raised at the POE with returning nonimmigrant workers were usually restricted to the issue of ongoing employment. This was normally addressed by producing a signed letter from the petitioning company confirming continued employment of the beneficiary, the job title, a brief job description, salary, and date started and expected completion date of employment. More recently, the documentation requirements for the entry letter increased to include a copy of payroll records or other confirmation that the employee has, in fact, received the wage offered on the last petition.

   Now, after the Neufeld memo, one must be prepared for a far wider range of potential CBP/ICE inquiry at the POE. The following section details the additional issues and documents that the returning nonimmigrant should carry and be prepared to present upon Immigration inspection.

   Demonstrating the Employer/ Employee Relationship after the Neufeld Memo and the Newark Airport Incident

   The H-1B employer must now file an amended I-129 petition/LCA for all but the shortest term off-site assignments (see, Sec. III, below) – and, employers should give a copy of amended filings to workers as part of documentation to establish compliance. If the worker has worked off-site during the previous 3 years, provide that worker with a detailed accounting of all off-site assignments and evidence that amended petitions and/or LCAs were filed, if required. The itinerary must be consistent...