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 pay was computed, who paid their salary, their job duties, and what they were paid. 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.

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.

A new policy involves conducting random checks for 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 interview. In some cases, if CBP discovers discrepancies in previously filed petitions, then the applicant may be asked to withdraw his/her application for admission into the United States or be subject to expedited removal.

During that same local CBP meeting, attendees were advised that if CBP discovers that a returning Lawful Permanent Resident has a post-1998 conviction, the Lawful Permanent Resident may be detained. The only exceptions are that CBP will release a Lawful Permanent Resident for humanitarian reasons; extenuating circumstances such as if the foreign national is traveling with children and there is no one to pick up the children. Individuals with pending I-751 petitions returning to the United States via the Newark airport port of entry, who have a I-751 filing receipt documenting that an I-751 has been properly filed or an ADIT Legal Permanent Resident stamp, will be sent to secondary inspection for further interview to verify the validity of the I-751 Petition.

It is important to review all pertinent documents in your petition and to consider carrying evidence to support the assertions made in the petition filed on their behalf by their employer. Similarly, employers must be prepared for telephone inquiries from CBP officers at ports of entry to confirm the assertions made in any nonimmigrant petition and supporting documentation.

Finally, employers must be advised that the government may review information in any public venues such as websites and other media for consistency with petition content. Thus, keeping such public information accurate and current is essential.

H-1B workers certainly seem to be under fire these days on many fronts. The new memo issued by USCIS on the employer-employee relationship imposes new extra-regulatory regulations on the types of activities in which H-1B workers can engage as well as the types of enterprises that can petition for H-1B workers.

We believe that this memo will invite the Service Centers to hit H-1B petitioners with a new slew of Requests for Evidence. USCIS continues to make unannounced H-1B site visits, often repeatedly to the same employer.  I personally cannot see the reason why CIS needs to visit the same employer many times, particularly after the first one or two visits show that the employer is fully compliant.

In India, we have heard that various U.S. consular posts in India issue request for evidences appearing to question the bona fides of the H-1B and requesting information on a host of truly repetitive and/or irrelevant topics. Much of the information that is routinely requested is already in the copy of the H-1B visa petition.

Some of the RFE’s request payroll information for all employees of the sponsoring company, a ridiculous request in most instances, particularly for major multi-national companies. One of the most frustrating actions we are seeing from consular officers in this context is the checking off or highlighting of every single category of additional information on the form letter, whether directly applicable or not, in effect a barrier that must be overcome before an applicant can have the H-1B visa issued.

This disproportionate heavy-handed administrative reaction comes not from the agency specifically tasked with H-1B enforcement – the Department of Labor – but from CIS, CBP and State. A great number of IT consultants come to the US on H-1B’s. It is important to remember that so many of these individuals are extremely well-educated, capable people, working in an industry in which there are a large number of high profile players. And arguably, the high profile consulting companies have the most at stake if they do not focus on compliance, as they are the easiest enforcement target and they need their business model to work in the U.S. in order to survive.

It is true that some IT consulting companies’ practices have been the focus of fraud investigations. But DOL has stringent rules in place to deal with the bad guys. Benching H-1B workers without pay, paying below the prevailing wage, sending H-1B workers on long-term assignments to a site not covered by an LCA – these are the practices we most often hear about, and every single one of these is a violation of an existing regulation that could be enforced by the Department of Labor. When an employer violates wage and hour rules, DOL investigates the practices and enforces the regulations against that employer. But no one shuts down an entire industry as a result.

H-1B’s create jobs – statistics show that 5 jobs are created in the U.S. for every H-1B worker hired. An administrative clamp-down in the program will hinder this job creation. And think about the valuable sharing of skills and expertise between H-1B workers and U.S. workers – this is lost when companies are discouraged from using the program.

The anti-H-1B assault chills the formation of small businesses in the US, particularly in emerging technologies. This will most certainly be one of the long-term results of USCIS’ most recent memo.

The attack on H-1B’s offends our friends and allies in the world. An example: Earlier this year India – one of the U.S.’s closest allies – announced new visa restrictions on foreign nationals working there. Surely the treatment of Indian national H-1B workers at the hands of our agencies involved in the immigration process would not have escaped the attention of the Indian government as they issued their own restrictions.

The increasing challenges in the H-1B program may have the effect of encouraging foreign students who were educated in the U.S. to seek permanent positions elsewhere.

February 2010