Dan Berger, Brian Halliday & Stephen Yale-Loehr, Feb. 24, 2025
“This previous week, we noticed two people refused entry to the US. One was an H-1B pc scientist. His I-129 petition was accepted over a yr in the past, and that led to questions concerning the job in secondary inspection. Customs and Border Safety (CBP) referred to as the employer contact listed on the H-1B petition, who didn’t bear in mind the main points or know that the person was flying that day. He acquired expedited elimination as a result of CBP didn’t imagine the job supplied was actual.
The opposite was a Ph.D. engineering scholar from China. She had acquired an F-1 visa stamp at a U.S. consulate, after prolonged administrative processing. Nevertheless, CBP questioned her about her work and located that the resume she submitted on the consulate was shortened from an extended model she had on her laptop computer. She was allowed to withdraw her request for admission, and return to China to use for a brand new F-1 visa stamp.
As attorneys, we attempt to be taught from conditions that don’t go properly. We are able to chalk these incidents as much as the brand new Trump administration, particularly primarily based on the President’s excessive vetting govt orders. However consistency is significant to success within the immigration area. The U.S. authorities has extra entry to extra data right this moment than ever earlier than by way of expertise advances and company information sharing. And approval by one company doesn’t assure a go from others.
Initiatives corresponding to TECS (Traveler Enforcement Compliance System) are being properly funded and used. Website visits will proceed to increase, searches of digital gadgets will occur extra typically, and web sources will probably be consulted extra often (maybe with AI instruments). CBP inspections at airports and borders are a quantity enterprise – if a state of affairs requires deeper investigation, an officer understandably would ship somebody again to a U.S. consulate.
Ralph Waldo Emerson once wrote: “A silly consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines.” However excessive purposeful consistency is a strong tactic.
If a scientist left sure publications off a resume, did the consulate actually have all the knowledge wanted to provoke a safety examine? Was a kind of publications involving a delicate expertise, funded by a navy group, or co-authored with somebody of concern?
If the employer of an H-1B employee can’t articulate the beginning date, plan for onboarding and many others., is it a bona fide job alternative?
Throughout a dialogue two of our attorneys had final week with a CBP officer, his supervisor, and finally the supervisor’s supervisor, we discovered that CBP has new directions to vigorously scrutinize candidates for admission to the US. We are able to assume that US consular officers and USCIS officers are underneath the identical directions. So, the employer’s consultant on the petition, and the worker should be on the identical web page (“sing the identical track”) when referred to as upon to take action. Being constant all through immigration processes could make all of the distinction.
These conditions have taken place with immigration officers for years: the asylum applicant who mistakenly provides the flawed yr of highschool commencement, or the partner of a U.S. citizen who says the inaccurate birthday of her new stepchild. These inconsistencies can result in additional scrutiny. “Excessive consistency” may also help keep away from these conditions, together with:
- Be sure paperwork submitted to U.S. authorities businesses are the identical as paperwork used for different functions. A resume submitted ought to match different resumes, the LinkedIn profile, skilled biographies, and many others. If not, be proactive in noting that. Within the instance above, the scholar mentioned that she condensed her resume to satisfy consular file measurement necessities. If that’s true, put an enormous word on the shorter resume uploaded to the DS-160 file saying “decreased to suit file measurement restricted – full CV accessible on request.”
- Agree on particulars and share the abstract with employer and worker to have available. The H-1B assist letter tells the story of the petition – what the corporate does, what the job is, and the way the person qualifies. That needs to be reviewed by the employer and worker, and the main points confirmed. There needs to be a suggestions loop if one thing adjustments. Furthermore, the employer and worker ought to have a duplicate of the assist letter helpful to evaluate earlier than a website go to, consular appointment, or inspection at an airport.
- Be ready for a quiz. Each the worker and the employer – specifically the employer’s consultant who indicators off on the underlying work visa paperwork who may get an unannounced cellphone name – needs to be ready to reply to questions from CBP officers relating to the main points of the place in the US in as a lot element as doable. We consult with this because the immigration “Pop Quiz,” and are seeing it specifically just lately for Canadians making use of for TN and L-1A/L-1B visa standing at each land ports of entry and pre-flight inspection. Don’t full the shape upfront of journey. However be ready to finish it if requested by CBP. Employers and staff ought to know that they could be quizzed on the substance of a petition or utility.
It’s arduous to organize for excessive vetting, since it could play out in several methods with completely different officers. However we as attorneys ought to immediate our purchasers to follow excessive consistency.”
Dan Berger and Brian Halliday are Companions on the immigration regulation agency of Inexperienced & Spiegel LLP. Dan can also be a co-founder of the Path2Papers program at Cornell Legislation Faculty. Stephen Yale-Loehr is Professor Emeritus at Cornell Legislation Faculty. The authors thank Sahil Venkatesan, first-year regulation scholar at Cornell, for his contributions to this weblog.
