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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–

Even if the option of withdraw the request for admission is

granted, a “hard refusal” on inadmissibility grounds —

such as Sec. 212(a)(6)(C) or (7) (fraud or misrepresentation) and

would have been subject to expedited removal if not permitted to

withdraw — may present serious problems for future admission. A

Sec. 240 expedited removal involves the person being taken into

custody for a hearing before an Immigration Judge, and presents a

five-year bar to readmission.

Useful Links Regarding CBP Search Authority CBP Home /  Travel  / – CBP Policy Regarding Border Search of Electronic Devices Containing Information – 08/27/2009 pdf – 6,323 KB. Information Sheet on Inspection of Electronic Devices – 08/27/2009 pdf – 40 KB. – Secretary Napolitano Announces New Directives on Border Searches of Electronic Media – 08/27/2009 Laptop Inspections Legal, Rare, Essential – 08/11/2008 – U.S. Customs and Border Protection Policy Regarding Border Search of Information – 07/25/2008 This document provides the legal and policy guidelines for CBP officers and agents involved in the border search of information. For Accessibility Information: OFO508CONTACT@cbp.dhs.gov pdf – 161 KB. – CBP Authority to Search – 08/18/2010 CBP officers’ border search authority is derived through 19 U.S.C. 1467 and 19 C.F.R. 162.6, which states that all persons, baggage and merchandise arriving in the CBP territory of the United States from places outside thereof are liable to inspection. – Random Exams Upon entry into the United States from a foreign country, you may be selected for a COMPEX examination and experience a slight delay in your CBP processing.

APPENDIX II

Plea Agreement in H-1B Criminal Case Raises New Worries

about U.S. Crackdown on I.T. Outsourcing

On October 14, the U.S. District Court for Central Iowa accepted

a plea agreement in a case that has been watched nervously by some

in the IT-BPO outsourcing industry. The case is seen as a test for

whether the U.S. government can successfully criminalize certain

practices used by some staffing firms in the global Information

consulting sector, particularly those who recruit staff in

India.

This case follows unfavorable rulings in several recent federal

court cases involving IT staffing firms with ties to India.

Furthermore, in August, the U.S. Congress imposed what is viewed as

punative fees on companies that employ a large percentage of H-1B

and L-1 workers, a measure signed by President Obama despite

objections voiced by Indian trade officials.

In the Iowa case, lawyers for the U.S. Department of Justice and

the Defendant, Vision Systems Groups, Inc., a now defunct New

Jersey-based IT staffing firm, and three of its executives, agreed

to accept a guilty plea of one count of felony Wire Fraud under

Title 18 USC Sec. 1341, with sentencing put off to a later date.

Conviction could entail a fine to the company of $500,000. By

accepting a plea of guilty to the single count, the named

defendants will avoid the threat of long prison sentences and large

personal fines.

In March, the court dropped nine additional charges against the

company and its executives, leading some observers to conclude

prematurely that the prosecution had failed. VSG had argued that

the company’s practices were consistent with existing U.S. law

and published regulations, and its lawyers filings pointed out that

this prosecution – which took place in Iowa, which is

known for its U.S. Senator who is a prolific author of

anti-immigrant legislation – was really a part of a

larger quarrel over immigration policy.

Nonetheless, the Judge’s Order upheld and referenced the

stipulation that VSG fraudulently filed some two dozen H-1B

petitions submitted through an Iowa subsidiary found to be a

“shell company,” and then illegally reassigned the

workers to distant work sites in order to avoid paying the higher

prevailing wage at other locations. This essentially upholds the

government’s prosecutorial theory that such practices violate

U.S. law.

This case may affect the strategy employed by some H-1B

employers which had employed “roving” H-1B and short-term

assignments without first filing amended I-129 petitions and Labor

Condition Attestations (LCAs) and follows an ominous series of

recent events in America involving the outsourcing industry.

Prosecution Follows Other H-1B Restrictions

On Friday, August 13, the U.S. District Court Judge in

Washington, D.C. dismissed a civil law brought by several global

staffing firms and industry groups. That suit unsuccessfully sought

protection of the business model used by some staffing firms that

place H-1B workers at Third-Party work sites on projects that are

not related to their principal line of business. That ruling was

handed down on the day that President Obama signed a border control

law that contained what the Chairman of the Senate Immigration

Committee called measures against “chop-shops.”

In January, the USCIS issued a new set of H-1B rules, known as

the Neufeld memo, which impose heavy evidentiary burdens

on employers who seek to assign workers to client sites. Firms that

use the H-1B program must now document that they maintain full

“employment control” over their non-immigrant workers,

and U.S. will no longer issue H-1B visas to what the document terms

“body-shops” providing labor for hire.

Many in the U.S. Immigration bar as well as the industry and

Indian trade officials have criticized these rules as being unduly

burdensome and a potential violation of the WTO Treaty,

particularly pledges the U.S. had made under the General Agreement

on Trade in Services (GATS). Under that services trade agreement,

the U.S. vowed it would allow unimpeded access to 65,000 foreign

skilled workers (H-1B) along with an unspecified number of

Intra-company transfers (L-1). Demand for visas in both labor

programs have plummeted in recent years, as administrative

restrictions have deterred applications. Indian firms and nationals

have been particularly hard hit by these restrictive measures.

The outcome of the criminal prosecution against VSG is indeed

one that should cause the ITO-BP industry to reconsider some of its

U.S. market strategies and business model. This is a good time for

companies to obtain a fresh perspective on U.S. business

immigration compliance, reassess their own regulatory risks, and

rethink how they do business in the United States.

APPENDIX III

A – Part 655.735 Text

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=b94c8af32c2b13cc9d7d250a20c9707d&rgn=div8&view=text&node=20:3.0.2.1.35.8.26.12&idno=20

e-CFR Data is current as of November 9,

2010

PART 655—TEMPORARY EMPLOYMENT OF FOREIGN

WORKERS IN THE UNITED STATES

Subpart H—Labor Condition Applications

and Requirements for Employers Seeking To Employ Nonimmigrants on

H–1b Visas in Specialty Occupations and as Fashion

Models, and Requirements for Employers Seeking To Employ

Nonimmigrants on H–1b1 and E–3 Visas in

Specialty Occupations

§ 655.735   What are the special

provisions for short-term placement of H–1B nonimmigrants

at place(s) of employment outside the area(s) of intended

employment listed on the LCA?

This section does not apply to E–3 and H–1B1

nonimmigrants.

(a) Subject to the conditions specified in this section, an

employer may make short-term placements or assignments of

H–1B nonimmigrant(s) at worksite(s) (place(s) of

employment) in areas not listed on the employer’s approved

LCA(s) without filing new labor condition application(s) for such

area(s).

(b) The following conditions must be fully satisfied by an

employer during all short-term placement(s) or assignment(s) of

H–1B nonimmigrant(s) at worksite(s) (place(s) of

employment) in areas not listed on the employer’s approved

LCA(s):

(1) The employer has fully satisfied the requirements of

§§655.730 through 655.734 with regard to worksite(s)

located within the area(s) of intended employment listed on the

employer’s LCA(s).

(2) The employer shall not place, assign, lease, or otherwise

contract out any H–1B nonimmigrant(s) to any worksite

where there is a strike or lockout in the course of a labor dispute

in the same occupational classification(s) as that of the

H–1B nonimmigrant(s).

(3) For every day the H–1B nonimmigrant(s) is placed

or assigned outside the area(s) of employment listed on the

approved LCA(s) for such worker(s), the employer shall:

(i) Continue to pay such worker(s) the required wage (based on

the prevailing wage at such worker’s(s’) permanent

worksite, or the employer’s actual wage, whichever is

higher);

(ii) Pay such worker(s) the actual cost of lodging (for both

workdays and non-workdays); and

(iii) Pay such worker(s) the actual cost of travel, meals and

incidental or miscellaneous expenses (for both workdays and

non-workdays).

(c) An employer’s short-term placement(s) or assignment(s)

of H–1B nonimmigrant(s) at any worksite(s) in an area of

employment not listed on the employer’s approved LCA(s) shall

not exceed a total of 30 workdays in a one-year period for any

H–1B nonimmigrant at any worksite or combination of

worksites in the area, except that such placement or

assignment of an H–1B nonimmigrant may be for longer than

30 workdays but for no more than a total of 60 workdays in a

one-year period where the employer is able to show the

following:

(1) The H–1B nonimmigrant continues to maintain an

office or work station at his/her permanent worksite (e.g., the

worker has a dedicated workstation and telephone line(s) at the

permanent worksite);

(2) The H–1B nonimmigrant spends a substantial amount

of time at the permanent worksite in a one-year period; and

(3) The H–1B nonimmigrant’s U.S. residence or

place of abode is located in the area of the permanent worksite and

not in the area of the short-term worksite(s) (e.g., the

worker’s personal mailing address; the worker’s lease for

an apartment or other home; the worker’s bank accounts; the

worker’s automobile driver’s license; the residence of the

worker’s dependents).

(d) For purposes of this section, the term workday

shall mean any day on which an H–1B nonimmigrant performs

any work at any worksite(s) within the area of short-term placement

or assignment. For example, three workdays would be counted where a

nonimmigrant works three non-consecutive days at three different

worksites (whether or not the employer owns or controls such

worksite(s)), within the same area of employment. Further, for

purposes of this section, the term one-year period shall

mean the calendar year ( i.e., January 1 through December

31) or the employer’s fiscal year, whichever the employer

chooses.

(e) The employer may not make short-term placement(s) or

assignment(s) of H–1B nonimmigrant(s) under this section

at worksite(s) in any area of employment for which the employer has

a certified LCA for the occupational classification. Further, an

H–1B nonimmigrant entering the U.S. is required to be

placed at a worksite in accordance with the approved petition and

supporting LCA; thus, the nonimmigrant’s initial placement or

assignment cannot be a short-term placement under this section. In

addition, the employer may not continuously rotate H–1B

nonimmigrants on short-term placement or assignment to an area of

employment in a manner that would defeat the purpose of the

short-term placement option, which is to provide the employer with

flexibility in assignments to afford enough time to obtain an

approved LCA for an area where it intends to have a continuing

presence (e.g., an employer may not rotate H–1B

nonimmigrants to an area of employment for 20-day periods, with the

result that nonimmigrants are continuously or virtually

continuously employed in the area of employment, in order to avoid

filing an LCA; such an employer would violate the short-term

placement provisions).

(f) Once any H–1B nonimmigrant’s short-term

placement or assignment has reached the workday limit specified in

paragraph (c) of this section in an area of employment, the

employer shall take one of the following actions:

(1) File an LCA and obtain ETA certification, and thereafter

place any H–1B nonimmigrant(s) in that occupational

classification at worksite(s) in that area pursuant to the LCA (

i.e., the employer shall perform all actions required in

connection with such LCA, including determination of the prevailing

wage and notice to workers); or

(2) Immediately terminate the placement of any H–1B

nonimmigrant(s) who reaches the workday limit in an area of

employment. No worker may exceed the workday limit within the

one-year period specified in paragraph (d) of this section, unless

the employer first files an LCA for the occupational classification

for the area of employment. Employers are cautioned that if any

worker exceeds the workday limit within the one-year period, then

the employer has violated the terms of its LCA(s) and the

regulations in the subpart, and thereafter the short-term placement

option cannot be used by the employer for H–1B

nonimmigrants in that occupational classification in that area of

employment.

(g) An employer is not required to use the short-term placement

option provided by this section, but may choose to make each

placement or assignment of an H–1B nonimmigrant at

worksite(s) in a new area of employment pursuant to a new LCA for

such area. Further, an employer which uses the short-term placement

option is not required to continue to use the option. Such an

employer may, at any time during the period identified in

paragraphs (c) and (d) of this section, file an LCA for the new

area of employment (performing all actions required in connection

with such LCA); upon certification of such LCA, the employer’s

obligation to comply with this section concerning short-term

placement shall terminate. (However, see

§655.731(c)(9)(iii)(C) regarding payment of business expenses

for employee’s travel on employer’s business.)

[65 FR 80222, Dec. 20, 2000, as amended at 73 FR 19949, Apr. 11,

2008]

B- Part 655.715 Definitions – “Peripatetic

Worker”

e-CFR Data is current as of November 9,

2010

PART 655—TEMPORARY EMPLOYMENT OF FOREIGN

WORKERS IN THE UNITED STATES

Subpart H—Labor Condition Applications

and Requirements for Employers Seeking To Employ Nonimmigrants on

H–1b Visas in Specialty Occupations and as Fashion

Models, and Requirements for Employers Seeking To Employ

Nonimmigrants on H–1b1 and E–3 Visas in

Specialty Occupations

§ 655.715   Definitions.

For the purposes of subparts H and I of this part:

[ . . .]

(ii) Particular worker’s job functions. The nature

and duration of an H–1B nonimmigrant’s job functions

may necessitate frequent changes of location with little time spent

at any one location. For such a worker, a location would not be

considered a “place of employment” or

“worksite” if the following three requirements (

i.e., paragraphs (1)(ii)(A) through (C)) are all

met—

(A) The nature and duration of the H–1B worker’s

job functions mandates his/her short-time presence at the location.

For this purpose, either:

( 1 ) The H–1B nonimmigrant’s job must be

peripatetic in nature, in that the normal duties of the

worker’s occupation (rather than the nature of the

employer’s business) requires frequent travel (local or

non-local) from location to location; or

( 2 ) The H–1B worker’s duties

must require that he/she spend most work time at one location but

occasionally travel for short periods to work at other locations;

and

(B) The H–1B worker’s presence at the

locations to which he/she travels from the “home”

worksite is on a casual, short-term basis, which can be recurring

but not excessive ( i.e., not exceeding five consecutive

workdays for any one visit by a peripatetic worker, or 10

consecutive workdays for any one visit by a worker who spends most

work time at one location and travels occasionally to other

locations); and

(C) The H–1B nonimmigrant is not at the location as a

“strikebreaker” ( i.e., the H–1B

nonimmigrant is not performing work in an occupation in which

workers are on strike or lockout).

(2) Examples of “non-worksite” locations based on

worker’s job functions: A computer engineer sent out to

customer locations to “troubleshoot” complaints regarding

software malfunctions; a sales representative making calls on

prospective customers or established customers within a “home

office” sales territory; a manager monitoring the performance

of out-stationed employees; an auditor providing advice or

conducting reviews at customer facilities; a physical therapist

providing services to patients in their homes within an area of

employment; an individual making a court appearance; an individual

lunching with a customer representative at a restaurant; or an

individual conducting research at a library.

(3) Examples of “worksite” locations based on

worker’s job functions: A computer engineer who works on

projects or accounts at different locations for weeks or months at

a time; a sales representative assigned on a continuing basis in an

area away from his/her “home office;” an auditor who

works for extended periods at the customer’s offices; a

physical therapist who “fills in” for full-time employees

of health care facilities for extended periods; or a physical

therapist who works for a contractor whose business is to provide

staffing on an “as needed” basis at hospitals, nursing

homes, or clinics.

(4) Whenever an H–1B worker performs work at a

location which is not a “worksite” (under the criterion

in paragraph (1)(i) or (1)(ii) of this definition), that

worker’s “place of employment” or

“worksite” for purposes of H–1B obligations is

the worker’s home station or regular work location. The

employer’s obligations regarding notice, prevailing wage and

working conditions are focused on the home station “place of

employment” rather than on the above-described location(s)

which do not constitute worksite(s) for these purposes. However,

whether or not a location is considered to be a

“worksite”/”place of employment” for an

H–1B nonimmigrant, the employer is required to provide

reimbursement to the H–1B nonimmigrant for expenses

incurred in traveling to that location on the employer’s

business, since such expenses are considered to be ordinary

business expenses of employers (§§655.731(c)(7)(iii)(C);

655.731(c)(9)). In determining the worker’s “place of

employment” or “worksite,” the Department will look

carefully at situations which appear to be contrived or abusive;

the Department would seriously question any situation where the

H–1B nonimmigrant’s purported “place of

employment” is a location other than where the worker spends

most of his/her work time, or where the purported “area of

employment” does not include the location(s) where the worker

spends most of his/her work time.

The content of this article is intended to provide a general

guide to the subject matter. Specialist advice should be sought

about your specific circumstances.