Law Offices of Kamlesh Tewary, P.C.
Over the last couple of years, the number of H-1B workers being denied admission at the port-of-entry by U.S. Customs and Border Protection (CBP) officers has increased. This issue has come into light as of late, as there were a few turnaways in December 2009/January 2010 at Newark airport in particular. It is important to note that these turnaways do not reflect any changes in the INA or the CBP's regulations, and they are not a consequence of a change in law occasioned by the Neufeld memo. The H-1B rumor mill tells us that the Neufeld memo is leading to increased difficulty at ports of entry. However, it should be noted that the Neufeld memo was internally address to USCIS, while USCBP is a separate branch of government altogether.
Still, as noted above, the number of turnaways of H-1B workers has increased in the last few years. Some cases involve genuine fraud by the employer or employee, while many more involve legitimate H-1B workers who are the subject of unwarranted and baseless refusals by unknowledgeable CBP officers. Recently the CBP office in Newark has confirmed that it has begun doing "random checks" for returning H-1B, L-1, and other employment-based visa holders. During these checks the officers would look for documentary discrepancies and indications of fraud. Newark CBP has also confirmed that a returning Lawful Permanent Resident (i.e. "green card" holder) with a post-1998 conviction may be detained upon arrival to check for inadmissibility under the law. One must recognize that other ports of entry may have adopted similar procedures as well.
Aliens seeking admission as H-1B workers have, and should be fully aware of the contents of their petitions and supporting documents. Such workers should be prepared to properly explain the logistics behind their employment in the United States, and to redress any discrepancies or inconsistencies in the paperwork. An H-1B worker who is facing a possible refusal should ask the CBP officer to discuss the admission with his/her employer and G-28 attorney. Employers should be available for any telephonic inquiries made by CBP at the time of the alien's arrival. If admission is not to be granted, the arriving alien should request deferred inspection, so that the admission decision can be made at a later date, at a CBP office and with the possibility of attorney representation. In the worst case, the alien is typically better off withdrawing the application for admission and returning on his/her accord, instead of being subject to "expedited removal" by the CBP, as expedited removal would bar the employee from coming back for 5 years.
**Information in this press release is provided for information purposes only, and its presentation herein neither creates an attorney-client privilege nor constitutes legal advice.**
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