H-1B Admissions at Newark, NJ Airport

The American Immigration Lawyers Association (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 CBP inspector’s questions focused on (1) who the individuals worked for, (2) how their pay was computed, (3) who paid their salary, (4) their job duties, and (5) what they were paid. According to the reports, some individuals were subjected to expedited removal and visa cancellation.

After inquiring with CBP headquarters about these alleged incidents, the CBP Liaison Committee was advised that many of the cases involved in the allegations involved companies currently under investigation by U.S. Immigration and Customs Enforcement (ICE) and/or U.S. Citizenship and Immigration Services (USCIS) for ongoing fraud. The CBP provided that 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 was based on “the totality of the circumstances” and was reviewed on a “case-by-case” basis. The CBP also confirmed that they screen ALL employment-based visa holders to determine admissibility and ensure compliance with entry requirements.

AILA was provided with additional news regarding a new policy instituted at Newark Airport dealing with random checks of returning H-1B, L-1 and other employment-based visa holders. Based upon the initial check, if the person’s admissibility is questionable, then he or she will be sent to secondary inspection for further review, and if questions still surround the person’s admissibility they may possibly be asked to withdraw his/her application for admission to the U.S. or be subject to expedited removal.

The Newark Airport port of entry has another policy regarding Lawful Permanent Residents (LPRs). The Airport has a mandatory detention policy for returning LPRs who have a post-1998 conviction. There are several exceptions to detainment for humanitarian reasons, and if the CBP cannot get a copy of the conviction record within 24 hours, the person may be released.

Moving Forward:
Employment Based Immigration applicants – If you must travel outside of the U.S., you should thoroughly prepare for your return trip to the U.S. by reviewing all pertinent documents, as well as carrying certain evidence to support assertions made in the petition. Certain evidence may include but is not limited to the following: pay stubs, employment verification letter, income tax returns, W-2 Forms, Employment offer letter, Employment Agreement.

Petitioning Employers – You must be prepared for inquiries from CBP officers to confirm the assertions made in any nonimmigrant petition. Additionally, you should keep and maintain adequate employee personnel and inspection files, and keep public information as accurate and current as possible.

Additionally, please note that the USCIS has revised I-797 Approval notices to include the following fraud related 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.

Source: AILA InfoNet Doc. No. 10020237 (Posted 2/2/2010)