Many H-1B employers and their employees have noted an increase in the scrutiny of H-1B beneficiaries by Customs and Border Protection (CBP) officers upon their arrival in the U.S. Reportedly, CBP is particularly focused on H-1B workers in industries, such as information technology consulting, that require employees to perform much of their services "off-site" at the offices of a client. A number of H-1B beneficiaries have told of being heavily questioned at the airport, and some have been subjected to "expedited removal" from the U.S. Expedited removal entails the immediate detention and deportation of an arriving foreign traveler, and a five year bar on return to the U.S. This increased scrutiny could have a significant effect on companies that provide off-site services, and businesses that utilize these services.
Many of these reports hail from our "home port," Newark Liberty International Airport in Newark, New Jersey, one of the three major international airports serving the New York City metropolitan area. At a recent meeting we attended with representatives of CBP from Newark Airport, CBP confirmed that, in an attempt to rout out H-1B fraud, it was heavily scrutinizing certain H-1B travelers. CBP also advised that at the time of inspection of the traveler, it would even contact U.S. Citizenship and Immigration Services (USCIS), the U.S. Department of Labor (DOL), and petitioning employers, to confirm that the H-1B position is legitimate and consistent with the information submitted to USCIS in the petition. CBP also confirmed that the location of the work site, as compared to the location listed in the H-1B petition, was a particular area of concern. CBP denied the claims circulating on the internet that nationals of India have been singled out for additional scrutiny, but did say that most of the H-1Bs arriving in Newark Airport were on one of the four daily flights from India.
Many have expressed concern that this additional scrutiny at the airport–which can involve a review of the relationship between the petitioner and the location at which the employee will work, as well as the nature of the relationship between the petitioner and the employee—essentially results in a re-adjudication of the H-1B petition by CBP, after it has already been reviewed by both USCIS and the Department of State (DOS). This can be a frightening prospect, as these issues revolve around complex areas of immigration law with which seasoned government adjudicators and immigration attorneys struggle. CBP is new to the notion of H-1B adjication, and has neither the established institutional experience nor the extensive library of guidance materials that exist at USCIS and DOS. What's more, as CBP has said that it is not "bound" by USCIS or DOS policy guidance memoranda, it is very difficult to determine any uniform standard against which H-1B petitions will be measured during CBP's review process. This in turn makes it nearly impossible for employers or their counsel to know how to appropriately prepare H-1B travelers to satisfy a CBP officer at an airport.
The apparent recent modification in CBP policy comes on the heels of a number of developments at other agencies within the Department of Homeland Security (DHS) over the past year, developments that signal a negative shift in DHS's perspective on the use of the H-1B visa category in off-site placement arrangements.
The first signs came early last year when IT consulting companies began receiving extensive Requests for Evidence (RFEs) from USCIS on standard H-1B petitions. These requests focus largely on the extent to which the H-1B consultants continue to be controlled and supervised by the petitioning employer, as opposed to the host company where they perform services. From a policy perspective, these requests are particularly troubling because they suggest that a "job shop," which is in the business of providing experienced professionals to simply staff random projects at its client sites without any special degree of supervision and control, are not eligible to petition for H-1B status on behalf of its employees.
USCIS confirmed its position on January 8, 2010, by issuing a memorandum by Donald Neufield, Associate Director of the Agency's Service Center Operations, to Service Center Directors and adjudicators of H-1B petitions, that further clarifies and defines (without any clear basis in statute, regulation, or policy precedent) the nature of the employer–employee relationship required for H-1B petitions. According to the memo, a petitioning H-1B employer must establish that the employee will be controlled and supervised by its employer. If read literally, this memorandum summarily disqualifies significant portions of the professional IT consulting and healthcare services industries, which are often based on the temporary manpower provider business model, from the H-1B visa category, despite the fact that most employees in these professions meet all the basic regulatory requirements of the H-1B category.
The focus on off-site placement has been noted on the investigation and enforcement side of DHS as well. IT consulting companies and organizations that utilize their services have seen a significant rise in the number of fraud investigations by the Office of Fraud Detection and National Security and U.S. Immigration and Custom Enforcement (ICE). Many traditional "on-site" businesses have been called upon or subpoenaed by agencies within DHS to provide information as part of investigations of companies that provide consulting services to these companies.
We will continue to follow developments in this area and share information as it becomes available. In the meantime, we offer the following practical guidelines:
- Before filing H-1B petitions, companies that place employees off-site, and companies that utilize their services, must work carefully with legal counsel to ensure that H-1B petitions meet the criteria established by current USCIS policy.
- Off-site H-1B employees who are traveling to the U.S. from abroad―whether for an initial H-1B entry into the U.S., or return to on-going work after a trip abroad―must prepare in advance to document the bona fides of their role and its appropriateness for the H-1B category. Sometimes this may involve preparing a package of documents and contact information for the employer or its attorney.
- Businesses that employ or utilize off-site placement services should work with legal counsel to evaluate the vendor's internal controls and procedures to ensure the stability of the temporary work force.
Proskauer's immigration group is available to answer any questions that arise from off-site placement arrangements.
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