On January 27, 2010, U.S. Customs and Border Protection ("CBP") announced that a new policy has been instituted at Newark Airport. The new policy involves random checks of traveling foreign nationals returning in H-1B, L-1, or other employment-based visa classifications to ascertain that the foreign national is complying with the terms of his/her visa classification. If the foreign national's admissibility is questionable due to, among other things, the work he/she is doing, the employer for whom he/she is working, the compensation he/she is receiving, etc., he/she will be sent to secondary inspection for further interview. If CBP discovers a discrepancy between what the foreign national is doing and the employer's previously approved petition, the foreign national may be asked to withdraw his/her application for admission into the United States or be subject to expedited removal.
To provide a legal basis for implementing this policy across the country, USCIS has added the following language to the I-797 approval notice:
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.
Additionally, CBP announced that it has adopted a mandatory detention policy at Newark Airport for any returning lawful permanent resident ("LPR") who has a post-1998 criminal conviction. If CBP cannot get a copy of the conviction record within 24 hours, the LPR may be released. The only exceptions to this policy involve "humanitarian" reasons or extenuating circumstances, such as when the foreign national is traveling with children and there is no one to pick up the children, or when the foreign national is the sole provider for American or LPR children. The new CBP policies serve as another reminder that foreign nationals should thoroughly prepare for all trips to the United States and be prepared for inspection upon returning to this country. Foreign nationals should compare their current employment and employer to the information contained in the petition and carry evidence to support their current employment, as well as any discrepancies. They also should be prepared to provide CBP with a contact person at their employer in case CBP, at ports of entry, wants to confirm the employment relationship. Lastly, foreign nationals who have been convicted of crimes since January 1, 1998, should confer with immigration counsel to ascertain the impact, if any, that these convictions might have on their deportability or ability to travel