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. It may only be considered as an alternative to removal proceedings when the alien is not clearly admissible. Occasionally, POE workload, personnel resources, and availability of detention space may affect whether you will allow withdrawal or pursue removal proceedings before an immigration judge. However, in cases where the alternative to withdrawal is expedited removal, workload and detention space are less significant considerations.
In exercising your discretion to permit withdrawal, you should carefully consider all facts and circumstances related to the case to determine whether permitting withdrawal would be in the best interest of justice, or conversely, that justice would be ill-served if an order of removal were issued. In light of the serious consequences of issuing an expedited removal order, which includes a 5-year bar to re-entry, the decision of whether to permit withdrawal should be based on a careful balancing of relevant favorable and unfavorable factors in order to reach an equitable decision. Such factors might include, but are not limited to:
- The seriousness of the immigration violation;
- Previous findings of inadmissibility against the alien;
- Intent on the part of the alien to violate the law;
- Ability to easily overcome the ground of inadmissibility (i.e., lack of documents);
- Age or poor health of the alien; and
- Other humanitarian or public interest considerations.
An expedited removal order should ordinarily be issued, rather than permitting withdrawal, in situations where there is obvious, deliberate fraud on the part of the applicant. For example, where counterfeit or fraudulent documents are involved, an expedited removal order is normally the appropriate response. On the other hand, in a situation where the alien may have innocently or through ignorance, misinformation, or bad advice obtained an inappropriate visa but has not concealed information during the course of the inspection, withdrawal should ordinarily be permitted. Where an immigration violation has not yet occurred, and the determination of inadmissibility is based on the alien's ignorance of permissible activities or on a judgment of the alien's future intent, the factors cited above should be carefully weighed in deciding whether to permit withdrawal or issue an expedited removal order. Where the travel documents presented are prima facie valid, you should consider whether the violation warrants the serious consequences of a formal removal.
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.
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Useful Links Regarding CBP Search Authority
CBP Policy Regarding Border Search of Electronic
Devices Containing Information
Information Sheet on Inspection of Electronic
Devices
Secretary Napolitano Announces New Directives on
Border Searches of Electronic Media
U.S. Customs and Border Protection Policy
Regarding Border Search of Information
CBP Authority to Search
Random Exams |
pdf - 6,323 KB.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
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.
