Many H-1B visa holders were alarmed by the recent news that several H-1B workers attempting to enter the United States at Newark Airport were either denied entry and sent back to their home countries or placed in expedited removal proceedings. While it has become clear in the weeks since that Customs and Border Protection (CBP) was targeting certain H-1B workers and petitioning companies involved in a fraud investigation, such incidents raise legitimate concerns amongst H-1B visa holders seeking to travel outside of the U.S. Is it safe to travel outside of the U.S. and, if so, what is to be expected at the port of entry? It is certainly still safe for H-1B visa holders to travel outside of the U.S, but travelers should be cognizant of the fact that they will be required to prove their admissibility to re-enter the United States.
Though a foreign national may have a valid H-1B visa in their passport, they must prove their admissibility to the Customs and Border Protection (CBP) Officer at the port of entry each time they return to the United States. It is important for any visa holder, but especially H-1B visa holders, to be prepared at the port of entry to prove any assertions made by the petitioning employer in the I-129 Petition for Nonimmigrant Worker. This will likely require the H-1B visa holder to carry additional documentation they would not necessarily carry anyway.
It is advisable for H-1B workers to possess a copy of their entire I-129 Petition for Nonimmigrant Worker, including the certified Labor Condition Application, as well as their two most recent pay stubs reflecting the fact that they are currently employed and being paid the prevailing wage or higher. The petitioning employer should also be prepared to field on-the-spot questions from a CBP Officer calling to verify information provided by the foreign national at the port of entry. Indeed, the CBP has made no secret of the fact that they will compare publicly available information, such as company websites or media reports, to the information provided in a petition. Thus, it is imperative that information in the petition be consistent with, if not identical to, publicly available information.
In light of the events transpiring at the Newark Airport, CBP has stated that random security checks will be implemented at Newark Airport, particularly for those individuals traveling with an employment-based visa. Moreover, the Newark Airport will be instituting additional screening measures, including detaining lawful permanent residents with a post-1998 criminal conviction and automatically sending individuals with a pending I-751 petition for secondary inspection. While these changes have only been implemented at the Newark Airport thus far, they are likely a sign of things to come at other ports of entry.
Therefore, an H-1B visa holder should not be afraid to travel outside of the United States, but should always remember they can never be too prepared for inspection at the port of entry upon return to the United States. If a foreign national has questions regarding whether they should travel outside of the U.S. and what they should expect at the port of entry, they should contact an experienced immigration attorney to discuss their specific situation prior to departure.