Our firm has recently learned that, in light of the H-1B Neufeld Memorandum, certain ports of entry are more vigilantly checking the Labor Condition Applications (LCA) of H-1B visa holders. Immigration officers are reviewing the LCAs of visa holders to confirm the end client work location matches the work location indicated on the LCA.
If the end client work location does not match the information on the LCA, immigration officers are finding H-1B visa holders inadmissible. While this procedure may not seem atypical or unjust, it has come to our attention that Customs and Border Protection (CBP) is using LCA inspections as a means of testing the validity of the employer-employee relationship.
The Issue with the Neufeld Memo
CBP’s newly found emphasis on verifying the validity of the employer-employee relationship is undeniably based on the controversial Neufeld Memo on the H-1B Employer-Employee Relationship. In addition to memorandum’s conflicting guidance regarding the standard of employer control, the Neufeld Memo has received harsh criticism for unilaterally implementing new immigration laws without following the proper rule-making procedures.
In response to these concerns, the United States Customs and Border Protection (CBP) vaguely suggested that it would “take it under advisement.” However, the practices is in place at certain ports of entry indicate that the USCIS’s controversial memo is finding its way to CBP’s screening process as an enforcement tool at certain locations.
H-1B Visa Holder Point of Entry Troubles
By way of example, an H-1B visa holder recently traveled to India and returned through the Newark International Airport in New Jersey. Upon his return from India, the foreign national was going to be working as an IT consultant at a client site in Redmond, Washington. Though an amended LCA was filed with the proper work location, the foreign national did not have a copy of the new LCA.
At the inspection point, the foreign national was asked by the CBP officer to produce his current LCA. The H-1B visa holder only had a copy of his previous LCA, which indicated his work locations were Texas and Georgia. The CBP officer informed the visa holder that his LCA did not demonstrate the proper H-1B relationship with his employer. The CBP officer then stated he should withdraw his H-1B extension application, go back to India and reapply. Even though the foreign national’s work location was properly documented in an amended LCA, he was deemed inadmissible for not being able to produce the new LCA at the port of entry.
H-1B Holders Must Abide
Despite the controversial nature of the Neufeld Memorandum, DHS appears to be enforcing the policies promulgated therein. Unfortunately, until the Neufeld H-1B Memorandum is retracted, H-1B visa holders are required to abide by its contents. To avoid any issues at the border, all H-1B visa holders should be advised to not only file a new LCA for any change in end client work location, but also promptly amend their H-1B petition accordingly.
And above all, the H-1B visa holder should be sure to carry documentation that accurately reflects their current employment situation, including copies of their the most recent LCA and H-1B petition with up-to-date work location information.
It is vital to have an experience Columbus immigration attorney when navigating the H-1B visa process, including the Labor Condition Application (LCA).
Shihab Burke, LLC, Attorneys At Law Can Help
If you are an immigrant with any questions or concerns regarding your immigration case, visas, green card applications, or any other legal matter, speak at once to an experienced Columbus immigration attorney. A good immigration lawyer can help you and your family with any immigration issue you face and defend you if you’re accused of violating immigration law.
Our immigration attorneys will review your forms and applications for thoroughness and accuracy. Immigration laws will continually change, but an experienced immigration attorney will always be able to give you the most up-to-date immigration advice you need.
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