“Be polite [to CBP officer], don’t be argumentative, respond to questions clearly and confidently, stick with your facts.”
Johnson Myalil is an immigration attorney at High-Tech Immigration Law Group, in Reston, Virginia, just outside of Washington, DC. His firm represents a number of companies that have employed H-1B visa holders. In an interview with The American Bazaar, Myalil speaks about the apparent crackdown on H-1B visas in the past month.
Editor’s note: This interview is not a legal advice, but only some tips. Anyone who plans to travel and have concerns should seek formal legal advice from a lawyer.
You have advised all the clients on H-1B visas to not to travel abroad. Do you believe there is a crack down on H-1B visas by the Trump administration?
I have advised nonimmigrant visa holders (H-1B, L-1, etc.) not to travel unless the trip is unavoidable. This is because of the heightened scrutiny of nonimmigrant visa holders at some of the U.S. airports.
There are reports that a number of H-1B visa holders are unable to return from India because they were put on “administrative processing.” Do you see any increase in such cases?
Yes, I’ve seen a significant increase in the number of H-1B visa applications held for “administrative processing” at the US consulates in India. I think this trend started recently.
There are also reports about people being sent back from the airports. Have you come across any such cases?
Yes, I have direct knowledge of a couple of cases in the last few weeks. Some other attorneys have also reported people being sent back. Most of the victims appear to be H-1B employees of consulting companies. Customs and Border Patrol officers try to elicit as much information about the employer, salary, end client, project, work location, etc. Even a minor discrepancy or perceived violation is pointed out as reason for expedited removal!
Are the customs officials legally allowed to send the H-1B visa holders back to home countries? What kind of legal rights they have?
CBP officers have the authority to determine if an alien is admissible or not. Of course, they have to make that determination based on law and the facts presented. If the officer believes that the alien’s statements are not true, or the alien had violated his/her terms of admission during his/her previous stay in the United States, the officer can initiate expedited removal process. Though the alien worker can ask permission to speak to a lawyer, the officer is not obligated to grant the request. But I think many officers will be willing to let the alien call his/her employer. Sometimes it can help. One important rule of conduct for aliens — be polite, don’t be argumentative, respond to questions clearly and confidently, stick with your facts — even if the officer tries to twist your statements. (Remember, the officer can ask for your phone, laptop, passwords, and check your email, social media, etc. This has become somewhat a common practice.) If an officer appears to be unreasonable, it won’t be a bad idea to politely ask to see a supervisor. If the officer won’t let you in, ask permission to withdraw your application for admission rather than going through the expedited removal process. A person put on expedited removal cannot return to the US for five years. But if you withdraw your application for admission and visa is revoked, you still can apply for a new visa at a consulate.
It seems that there’s panic among H-1B visa holders. Is it justified?
I do not think we have reached that stage. But many H-1B employees and employers are concerned. Tough visa processing at the consulates, heightened scrutiny at the port of entry, unfriendly and restrictive bills in Congress, unclear policies at the executive branch… I think it’s justified to be concerned. At the same time, be vigilant about rumors, too.