The AILA U.S. Customs and Border Protection (“CBP”) Liaison Committee received reports from AILA members that CBP inspectors at the Newark, New Jersey airport port of entry were apparently assisting in an investigation involving certain H-1B nonimmigrants from India and certain H-1B petitioner companies.
The inspectors’ questions focused on who the individuals worked for, how their salaries were computed, who paid their salaries, their job duties, and what they were paid for. In some cases, the individuals were subjected to expedited removal and visa cancellation.
After inquiring with CBP headquarters (“HQ”) about these incidents, the CBP Liaison Committee was advised by HQ that several of these cases involved companies under investigation by U.S. Immigration and Customs Enforcement (“ICE”) and/or U.S. Citizenship and Immigration Services (“USCIS”) for ongoing fraud.
CBP HQ noted that they use as much advance information as possible to target specific individuals who warrant additional inspection. HQ also noted that recent enforcement cases reviewed ranged from simple documentary deficiency to visa/petition fraud.
Upon an inadmissibility finding, the determination to either allow the applicant to withdraw his or her application for admission or to subject the applicant to expedited removal is based on “the totality of the circumstances and reviewed on a case by case basis.”
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.
CBP HQ stated that those questioned were offered the opportunity to contact their consulate and that CBP officers contacted the petitioner and/or current employer when clarification was needed.
CBP HQ confirmed that they screen ALL employment-based visa holders to determine admissibility and ensure compliance with entry requirements.
Newark Airport has implemented a new policy for other situations as well. The following should be noted:
The Newark airport is doing random checks for returning H-1B, L-1 and other employment-based visa holders. If there are questions about inadmissibility, the person will be sent to secondary inspection for further interview.
LAWFUL PERMANENT RESIDENTS
Lawful Permanent Residents with a criminal conviction after 1998 should expect to be detained. If the airport cannot obtain a copy of the conviction record within 24 hours, the person may be released. The person should be proactive in traveling with a court certified copy of the court disposition – and should consult with an attorney before traveling.
CONDITIONAL PERMANENT RESIDENTS
Individuals with pending I-751 petitions (applications to remove conditional permanent residence granted to one who married a U.S. citizen) will be sent to secondary inspection for further interview to verify the validity of the petition.
Employers may be contacted to verify/substantiate the employment details in the petition of an H-1B, L-1 or other employment-based visa holder entering the Newark airport.
Employers and employees should expect that CBP may check other sources such as company websites for consistency with the information in the petitions.
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