Seyfarth Shaw’s Business Immigration Practice Group has learned from a variety of sources that the U.S. Department of Homeland Security (DHS), in cooperation with the Department of Labor (DOL), has raised the ante in its scrutiny of foreign workers and the firms who sponsor those foreign employees for immigration benefits. This Management Alert will summarize the latest information and provide suggested actions for employers and foreign nationals to maintain immigration compliance and facilitate interactions with immigration officials. Please communicate with your Seyfarth Shaw immigration counsel if you desire additional information or guidance.

Recent actions of U.S. Customs & Border Protection (CBP) at the Newark, New Jersey airport involving the refusal of admission and expedited removal of foreign citizens who sought admission on H-1B work visas have caused substantial concern, both for U.S.-based employers and for their foreign employees in nonimmigrant work visa status. While this incident may have been specific to Newark CBP officials, it appears to be an example of a growing, ominous trend. As we have reported, DHS has been dramatically ratcheting up its anti-fraud enforcement efforts in the immigration arena. The recent activity in Newark illustrates a new level of cooperation and sharing of information among the federal agencies tasked with administering and enforcing our immigration laws.

Recent Government Activity

CBP has confirmed that inspectors at the Newark, New Jersey airport, working in conjunction with the Office of Fraud Detection and National Security (FDNS)—a division within the U.S. Citizenship and Immigration Services (USCIS) National Security and Records Verification Directorate—and the DOL Office of Investigations, have collaborated in an investigation of specific H-1B petitioning employers. The CBP officers questioned foreign workers seeking admission in H-1B status about their employers, their pay, and their job duties, and sought other information concerning the terms and conditions of employment. This information was then compared to earlier written statements made in related nonimmigrant petition filings. Newark CBP has also confirmed that airport inspectors have begun conducting random checks of returning H-1B, L-1, and other employment-based nonimmigrant visa holders to verify whether the information provided by the foreign employee is consistent with information contained in relevant employment-based immigration petitions and applications. If this additional questioning reveals material discrepancies, CBP may choose to allow the foreign national to withdraw his or her application for admission (in which event, the person’s work visa will be cancelled) or to subject the foreign national to expedited removal (deportation) from the United States (thereby triggering a five-year bar on reentry).

Moreover, in line with this climate of heightened scrutiny, USCIS has added the following new warnings on Form 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.  

In addition, on January 11, 2010, the Director of USCIS, Alejandro Mayorkas, elevated FDNS from an office within the agency to a Directorate that reports to the Office of the Director. In his announcement of the change, Mr. Mayorkas noted:  

The realignment reflects the prioritization of certain critical Agency responsibilities, [including the] . . . creation of a Fraud Detection and National Security Directorate. This change reflects our prioritization of our anti-fraud and national security responsibilities and will bring greater focus to them.  

A copy of the realigned USCIS organizational chart can be found here: USCISOrgChart.JPG.

Practical Implications

Although the recent investigation occurred at the Newark Airport, employers and foreign nationals must be prepared for similar questioning at any port of entry or pre-flight inspection post. For more information on employer worksite investigations and FDNS initiatives, see our client alert: Surprise! H-1B and L-1 Employers Report Substantial Increase in Unannounced Site Visits by USCIS.

What You Can Do To Prepare

We recommend that both employers and their foreign employees take a number of precautions in order to maintain compliance with immigration laws and regulations.

Foreign workers should consider the following action items before each trip outside the United States and each new entry:  

  • Review and be prepared to explain all of the statements made in immigration petition filings, particularly statements regarding your salary, position title and duties, and work location. If information on the terms and conditions of your employment is inaccurate or outdated, notify your employer or immigration counsel immediately to determine whether an amended petition or other action is required.  
  • Carry a complete copy of your current petition or application documentation and original approval notice(s).  
  • Since agencies of the U.S. government may check Facebook, LinkedIn, Twitter, and other communication or social media sites related to the company and the employee, be sure that the information about you is accurate and does not reflect negatively on your character or your relationship with or duties on behalf of your U.S. employer. Employers should designate one or more individuals to track the employment of all foreign national employees to ensure that appropriate steps are taken if an employee’s salary, work location, or job duties change during the course of employment. In addition, employers should take the following precautions:  
  • Be prepared for telephone or in-person inquiries from CBP, FDNS and other government agencies to confirm the details of any immigration petitions filed by the company.  
  • Reach out to in-house counsel or your Seyfarth Immigration Group attorney to receive guidance before you engage in substantive discussions with any government official inquiring about immigration compliance.  
  • Establish an internal system to ensure that immigration counsel is informed of any changes in the terms and conditions of a foreign employee’s employment so that any necessary amended petition filings or other appropriate actions can be taken promptly.  
  • Review the company website regularly to ensure that information on the site is consistent with information provided in immigration filings. Also, as noted, agencies of the U.S. government may regularly check Facebook, LinkedIn, Twitter, and other communication or social media sites related to the company and the employee.

We anticipate that this inter-agency enforcement will continue to expand. Employers should consider whether to implement new compliance procedures in order to achieve their business objectives through the sponsorship of foreign employees and reduce the chance of unpleasant encounters by your foreign employees seeking entry at a U.S. port of entry or pre-flight inspection post.