CBP Joins ICE and USCIS in Effort to Reduce Fraud
and Misuse of the H-1B and L-1 Visa Programs
Since the end of last year, there have been several reports that Customs and Border
Protection (CBP) officers have placed increased scrutiny on individuals entering at
U.S. ports in H-1B status. Reports of CBP officers questioning individuals regarding the
specifics of the employee’s job duties and the validity of the job offer circulated
throughout immigrant communities as it was reported that individuals were actually
detained at airports and refused entry. Until recently, CBP refused to comment on
the specifics of these incidents, leading to widespread rumors circulating via Internet
postings. Finally, following numerous inquiries and meetings from the professional bar
to CBP in Newark, NJ, and to CBP headquarters in Washington, D.C., limited feedback
and specifics are now available.
The reported incidents described interviews where individuals seeking to enter the
United States in H-1B status were asked a number of questions, including: who they
worked for, how their pay was computed, who paid their salary, and what they were
paid. Normally, these types of questions and issues are addressed at the time the
U.S. Citizenship and Immigration Service (USCIS) approves the company’s petition for
the H-1B worker, and then reviewed at the time the individual applies for an H-1B
visa stamp with the U.S. Department of State U.S. at the embassy or consulate
abroad.
In some cases, following the interviews, individuals were subjected to expedited
removal and visa cancellation. CBP headquarters has now confirmed several of these
cases involved companies that were under investigation by Immigration and Customs
Enforcement (ICE) and/or USCIS for ongoing H-1B program fraud. CBP also confirmed
that the agency uses as much advance information as possible to target specific
individuals who warrant additional inspection and that recent enforcement cases
ranged from simple documentary deficiencies to visa/petition fraud. This appears to
be another example of increasing inter-agency cooperation within the Department of
Homeland Security, as well as with other government offices.
Newark Airport’s New Policy to Verify L‐1 and
H-1B Employees
During a recent meeting with CBP officers in
Newark, immigration attorneys were also advised
of Newark Airport’s newest policies in randomly
selecting foreign nationals seeking to enter the
United States in H-1B, L-1 or other employmentbased
visa categories for further questioning.
Based upon an initial random selection, if the
individual’s admissibility is questionable, he or
she is directed to secondary inspection for further questioning. Under the new policy, if officers discover
discrepancies in previously-filed petitions, the applicant may be asked to withdraw his application for admission
into the United States or be subject to expedited removal, i.e., the foreign national agrees to leave the United
States immediately.
CBP headquarters confirmed that Newark CBP is working closely with
USCIS’ Fraud Detection and National Security (FDNS) Directorate,1 as
well as the Department of Labor, Office of Inspector General’s Office
of Investigations. According to CBP headquarters, individuals selected
for additional review and questioning are offered the opportunity to
contact their Consulate. Although CBP guidelines do not allow an
applicant to be represented by an attorney during this stage of the
inspection process, they do allow for, at the CBP officer’s discretion, a
relative, friend, or representative to have access to the inspection area
to provide assistance. When the validity of the job offer and petition
are in question, in addition to seeking clarification from the foreign
national at the port of entry, CBP officers also contact the sponsoring
petitioner and/or current employer if appropriate. Although rumors
indicate that Indian nationals are being targeted, CBP headquarters states all employment-based visa holders are
screened regardless of nationality.
This shift to greater enforcement and fraud detection has been in effect for some time, as we can see from new
language added to the I-797 approval notices that USCIS issues:
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.
What Does this Mean for Companies and Foreign Nationals?
Although, to date, CBP confirmed that the new policy is in effect only at Newark Airport, one can reasonably
expect for the same policy to be instituted at other ports of entry as fraud detection efforts continue to increase
and interagency cooperation becomes more sophisticated. It is crucial for both employers and sponsored foreign
nationals in H-1B or L-1 status to properly and comprehensively prepare for their entry into the United States,
regardless of the port of entry. All foreign nationals should review their petitions to ensure the accuracy of
information previously provided to USCIS. When warranted, employers should file amendments with USCIS to
notify of a change in job duties or location, and file new H-1B labor condition applications with the Department
of Labor. Foreign nationals should also consider carrying evidence to support the assertions made in the petition,
such as degrees or job verification letters. In addition to site visits being made by the FDNS division, employers
must be prepared to receive telephone inquiries from CBP officers at ports of entry to confirm the assertions
made in any petitions and supporting documentation submitted to USCIS.
Employers should also be advised that any government agency, such as
USCIS, CBP, or ICE, can utilize public information, including websites and
other media, to confirm and verify consistency and bona fides of a
petition. Ensuring that public information and records are consistent with
petitions being filed with USCIS is essential.
As CBP issues additional information regarding current and future policies,
employers should be aware not only of each agency’s ability to review and
revoke visa approvals, but of agencies’ new interest in initiating civil and
criminal proceedings. Certainly the growing cooperation among CBP, ICE,
USCIS and DOL to combat fraud and misuse of the H-1B and L-1 visa
programs is likely to increase as the administration’s focus on immigration
compliance and general enforcement efforts continues.
) и было услышано. Прогноз такой, что квоты не выберут. 
