H-1B Admissions at Newark, NJ Airport – Port Of Entry (POE)

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. CBP HQ noted that they use as much advance information as possible to target specific individuals who warrant additional inspection. HQ also noted that recent enforcement cases reviewed ranged from simple documentary deficiency to visa/petition 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.” In the Newark enforcement actions, CBP Newark worked closely with USCIS – Fraud Detection and National Security (“FDNS”) and the Department of Labor – Office of Investigations. CBP HQ stated that those questioned were offered the opportunity to contact their consulate and that CBP officers contacted the petitioner and/or current employer when clarification was needed. CBP HQ confirmed that they screen ALL employment-based visa holders to determine admissibility and ensure compliance with entry requirements.

In addition, on January 27, AILA members attending a CBP meeting in the Newark, New Jersey area were informed that a new policy has been instituted at Newark Airport. This 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 Newark airport port of entry has adopted a mandatory detention policy for crimes that were committed after 1998. In the event that CBP cannot get a copy of the conviction record in twenty-four hours, the person may be released. 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; or when the person is a sole provider for United States Citizen or Lawful Permanent Resident 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 unclear if CBP will undertake a substantive review of the I-751 Petition.

In all cases, attorneys should remind their clients to thoroughly prepare for their trip to the United States and their inspection upon application for admission by reviewing all pertinent documents to their 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.

Note the new fraud related language added to I-797 approval notices –
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.
Please do not forget to contact the CBP port director to follow up on case problems at a particular port. In addition, as needed, file complaints through the CBP complaint process.

Learn more… About Nachman & Associates, P.C.

When traditional immigration approaches do not work, we analyze a candidate’s resume and determine if they may qualify for various nonimmigrant or temporary work permits or permanent immigrant visa transfer options such as outstanding researcher classification, TN under NAFTA or E-3 classification for Australia. Now that the H-1B nonimmigrant visa has become more difficult to obtain, we work closely with our clients who are seeking to transfer highly-skilled foreign national workers to the U.S. to determine if there are other nonimmigrant options for such transfers. No matter what the situation, our attorneys work hard to provide a variety of visa options to support their needs.

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Our staff of immigration lawyers and professionals are sensitive to the needs of our clients and the members of their families. Many members of our staff are themselves foreign born and have family and/or friends who have gone through the immigration process. As a result, our staff of business immigration lawyers and professionals have a personal and unique approach to processing visas and for dealing with our foreign national clientele. Our legal team can clearly explain how to process temporary and permanent work permits in the U.S. The PERM Labor Certification Process is time-consuming and complex and our staff of business immigration law professionals can clearly explain the process in Spanish, French, Japanese, Korean, Tamil, Hindi, Slovak, Czech, Russian, Chinese, German and English.

To schedule a consultation, please feel free to contact Nachman & Associates by e-mail or call 1-866-599-3625. Please contact our offices at 201-670-0006 (x100) or e-mail to us at info@visaserve.com.

Website: http://www.visaserve.com

Nachman & Associates, P.C.
David H. Nachman
Managing Attorney
E-mail: david_nachman@visaserve.com

The Citizenship and Immigration Services Ombudsman, established by the Homeland Security Act of 2002, provides independent analysis of problems encountered by individuals and employers interacting with the U.S. Citizenship and Immigration Services, and proposes changes to mitigate those problems.

EXECUTIVE SUMMARY

In August and September 2009, the Ombudsman received complaints concerning H-1B cases with incorrectly denied Labor Condition Applications (LCA/ETA-9035) filed with the U.S. Department of Labor (DOL). LCA processing delays and errors at DOL, when coupled with USCIS’ current
H-1B petition initial filing requirements, are prejudicing employers and individuals who are unable to timely file original or extension H-1B visa petitions. Untimely H-1B petition filings lead to problems, including: (1) the potential loss of employees’ legal status; (2) business operation disruptions due to the loss of continuity in the employment of key employees; and (3) economic loss to employees in the form of lost wages and costs of travel overseas due to loss of status. USCIS has the authority to mitigate the impact upon these customers.

To mitigate the impact of LCA processing difficulties, the Ombudsman recommends that USCIS:

(1) Reinstate USCIS’ previous practice of temporarily accepting an H-1B petition (Form I-129) supported by proof of timely filing of an LCA application with DOL, and issue a Request for Evidence (RFE) whereby the H-1B petitioner later provides the certified LCA; and

(2) Establish a temporary policy under which USCIS would excuse late H-1B filings where the petitioner has documented an LCA submission to DOL that was improperly rejected.

BACKGROUND

Pursuant to the Immigration and Nationality Act (INA) § 212(n)(1), USCIS may not approve an
H-1B petition without a supporting certified LCA. However, the INA does not prohibit acceptance of the petition filing without the certified LCA. The applicable regulation,

Citizenship and Immigration Services Ombudsman Recommendation from the CIS Ombudsman to the Director, USCIS
October 23, 2009, Page 2 of 2

8 C.F.R. § 214.2(h)(4)(i)(B) (2008), states that “[b]efore filing a petition for H-1B classification …, the petitioner shall obtain a certification from the Department of Labor that it has filed a [L]abor [C]ondition [A]pplication …” [emphasis added]. Further, the June 12, 2009, revision to the “Instructions for Form I-129” state, in relevant part (see p. 3), that “[t]he petition must be filed by the U.S. employer and must be filed with: 1. Evidence that a [L]abor [C]ondition [A]pplication has been filed with the U.S. Department of Labor …” [emphasis added]. However, USCIS currently requires that petitioners include a certified LCA with their H-1B petition.

Stakeholders have detailed to the Ombudsman errors stemming from the new DOL LCA certification process, iCERT, launched on April 15, 2009.

For example, DOL is denying LCAs based on false FEIN (Federal Employer Identification Number) mismatches with DOL’s database. Both DOL and USCIS indicated to the Ombudsman that cases involving LCA certification problems represent up to seven percent of total iCERT filings from April 15, 2009 through the beginning of August 2009 (approximately 2,900 denials out of approximately 41,700 LCAs submitted). The Ombudsman understands that neither DOL nor USCIS can specify the exact number of incorrect LCA denials.

In 1992, the legacy Immigration and Naturalization Service (INS) responded to LCA processing problems occurring at DOL at that time by accepting H-1B filings accompanied by evidence of an LCA filing, and subsequently issuing an RFE to obtain the later-approved LCA. This approach permitted customers to meet filing requirements, preserve legal status, and avoid employment disruptions until DOL was able to address its underlying LCA processing problems.

ANALYSIS

Despite DOL’s jurisdictional ownership of H-1B-related LCA processing problems, these difficulties extend to USCIS through the agency’s requirement that petition filings include certified LCAs. Any costs to USCIS such as issuing RFEs or temporarily lowering production levels, are outweighed by the burden that incorrect denials have on employers and individuals. USCIS currently has the capacity to make what amounts to a minor processing modification to address a temporary situation.
Given that Form I-129 instructions say a petitioner must provide evidence that an LCA has been filed with DOL, and that USCIS has previously accommodated petitioners in nearly the same circumstances, implementing these recommendations as a temporary solution is warranted.

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1 Under 20 C.F.R. § 655.740(a)(1) (2009), DOL allows itself up to seven working days to certify LCAs.

2 A March 5, 1992, memo from INS Assistant Commissioner Lawrence Weinig stated “petitions for H-1B nonimmigrants do not have to be accompanied by an approved [L]abor [C]ondition [A]pplication. Instead, petitions for H-1B nonimmigrants must now be accompanied by a certification from the Secretary of Labor that the petitioner has filed a [L]abor [C]ondition [A]pplication with the Department of Labor …. The certification will be a copy of the original ETA 9035 filed by the petitioner with the Department of Labor with the Department of Labor’s stamp affixed to the form.” The Ombudsman understands that USCIS reaffirmed this approach as recently as 2001.