This issue is currently under examination within the H-1B policy review working group as part of the comprehensive USCIS policy review.  It has long been fraught with confusing and sometimes contradictory policy guidance regarding when a change in employee work location requires a new H-1B petition.

The fact is that not every change in jobsite location represents a ‘material change’ and not every change equates to a change in the conditions of employment, particularly if the change is in the same Metropolitan Statistical Area (MSA) upon which the Labor Condition Application and the prevailing wage is based.

It has long been the policy articulated in the October 23, 2003 Efren Hernandez letter (AILA Doc. No. 03112118), that changes in job site location do not require amended H-1B filings as long as a Certified Labor Condition Application is in place; an LCA posting notice under DOL regulations was completed, and other wage and hour obligations are met.

The American Immigration Lawyers Association (AILA) is requesting that USCIS “issue clear and unequivocal guidance confirming the provisions in the Hernandez letter so that petitioners and USCIS can follow and rely upon it.”

We will keep you informed concerning this matter as developments occur.

Customs and Border Protection (CBP) last week provided AILA (the American Immigration Lawyers Association) with information regarding enforcement issues at Newark Airport.  The CBP have been assisting ICE with an investigation of certain H-1B non-immigrants and particular employers who hire H-1B workers.  This created events where H-1B visa holders were detained as a result of  employers being under investigation by ICE.

This incident has been a strong reminder that non-immigrants in work-related status such as H-1B, L-1, E and O-1 classification should be prepared for the potential of additional scrutiny when entering the United States after travel abroad.  CBP will question arriving non-immigrants about their employer, and may request documentation to prove that the nonimmigrant is still employed according to the petition that was filed on their behalf.

The above-mentioned incident where CBP engaged in more extensive questioning, has caused many H-1B visa holders and their employers to have concern about documentation that their employees will need to re-enter the USA following foreign travel.

CBP does have the authority to inquire about these issues, however, recent events indicate that their line of questioning may become more extensive and may result in more situations where arriving employees will be put in secondary inspection.  Secondary Inspection is where CBP officers wish to question the alien concerning their intent in the USA and conduct a more thorough interview and review any additional documentation that the individual may have brought with them, as well as information on electronic devices (cellphones and laptops).  They may even conduct Internet searches on the individual and the employer.  Therefore, employees entering the USA in H-1B classification or other employment based visas should be prepared for the possibility of additional scrutiny, and for the possibility of secondary inspection, regardless of where and when they enter – be it an airport or a land border.

We highly recommend that entering non-immigrants bring the following additional information with them in the event they are asked to produce evidence of their employment:

1)      Copies of 2 recent paycheck vouchers

2)      A copy of the USCIS petition that their status is based upon

3)      Current/Original I-797 approval notice

4)      A current letter of employment verification from a company officer or HR professional confirming job title and dates of employment  on business letterhead – is an excellent idea, as well.

We have heard recent reports that employers may also be contacted by CBP to confirm information related to the employment relationship and job duties.

We will provide updates to you on this issue and intend to monitor it very closely.  If you or your employees have encountered any additional scrutiny and would like to relay your experiences, please contact Immigration Solutions.

Reported in Computerworld

USCIS officials are taking H-1B enforcement from the desk to the field with a plan to conduct 25,000 on-site inspections of companies hiring foreign workers over this fiscal year.

The move marks a nearly five-fold increase in inspections over last fiscal year, when the agency conducted 5,191 site visits under a new site inspection program. The new federal fiscal year began Oct. 1.

Tougher enforcement from U.S. Citizenship and Immigration Services comes in response to a study conducted by the agency last year that found fraud and other violations in one-in-five H-1B applications.

In a letter to U.S. Sen. Charles Grassley (R-Iowa), Alejandro Mayorkas, director of the Citizenship and Immigration Services, said the agency began a site visit and verification program in July to check on the validity of H-1B applications. Mayorkas’ letter was released on Tuesday by Grassley.

“The inspection program determines] whether the location of employment actually exists and if a beneficiary is employed at the location specified, performing the duties as described, and paid the salary as identified in the petition,” said Mayorkas in his letter to Grassley.

…As part of its enforcement effort, Mayorkas said the Citizenship and Immigration Services has hired Dunn and Bradstreet Inc., which provides credit reports among other services, to act as “an independent information provider” and help verify information submitted by companies hiring H-1B workers.

Links to other related articles:

ICE Asst. Secretary Announces 1,000 New Workplace Audits

Anger up, Visas Down

Tech workers take H-1B case to supreme court

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