increased scrutiny at u.s. ports-of-entry for h-1b and l-1 non-immigrants

INCREASED SCRUTINY AT U.S. PORTS-OF-ENTRY

FOR H-1B AND L-1 NON-IMMIGRANTS

In light of recent events which have transpired at U.S. ports-of-entry we take this opportunity to impart the following important information and advice to our clients about increased inspections concerning H-1B and L-1 Employer-Employee relationships.

On January 8, 2010, U.S. Citizenship & Immigration Services issued a Memorandum (http://www.uscis.gov/USCIS/Laws/Memoranda/2010/H1B%20Employer-Employee%20Memo010810.pdf) narrowly defining the Employer-Employee relationship as it relates to H-1B applications and more specifically to employees whose work is performed off-site. This Memorandum has already led to heightened scrutiny in cases in which an H-1B employee performs work at an “end-client” or third-party work location.

We feel obliged to inform you that this Memorandum is not only being utilized in the adjudications process for H-1B applications, but has caused more focused inspections of non-immigrants at U.S. ports-of-entry and is being applied to both H-1B and L-1 workers alike.

We have received specific reports of border officials using this Memorandum as a device to conduct fraud investigations by instituting a random screening process for H-1B and L-1 visa holders. These visa holders have been interrogated as to the nature of their work, where the work is performed, and their relationship to the employer.

Thus far, specific incidents of border officials refusing admissions have been limited to Newark Liberty International and Philadelphia International airports. However, we believe this type of screening and related interrogation may soon spread throughout the United States.

Although all H-1B and L-1 visa holders have been targets of these investigations, it seems clear that individuals who are seeking admission to work at third-party locations are the most likely to be subjected to further action such as visa revocation and removal (in the most severe instances). Therefore, we find it necessary, in this volatile climate of inspections to not only warn of this new practice, but also to advise clients of the documents H-1B and L-1 visa holders should possess when seeking entry into the United States.

Foreign nationals seeking entry into the United States in H-1B or L-1 visa status should carry with them the following documents (where applicable):

• Labor Condition Application, certified by the Department of Labor which lists all work sites (for H-1B employees).
• The name and contact information of a direct supervisor, located at the Employee’s worksite (not at the third-party worksite).
• The Letter of Support which was submitted with the H-1B or L-1 visa petition and confirms the fact that the Employee will work at off-site location(s).
• If the Employee is traveling pursuant to an L-1 blanket petition, the supplement to the blanket which lists all related/affiliated entities where the Employee has a right to perform work.
• Any other evidence to demonstrate the relationship between the Employer and the Employee.

We understand that these are precarious times for non-immigrant visa holders, and their employers. We are here to assist you in navigating the intricacies of non-immigrant visas and to answer any questions that you might have.

If you have any concerns regarding your particular situation which you would like to discuss further, please do not hesitate to call our office or to schedule an appointment at your convenience.