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Foreign Workers And Their Families Face Increased Scrutiny When Travelling
by George N. Lester and Punam S. Rogers

After the September 11 terrorist attacks, it was widely reported that most, if not all, of the hijackers had entered the U.S. legally using temporary "nonimmigrant" visas. As a consequence, there is stricter scrutiny by the Immigration and Naturalization Services (INS) of persons traveling to the U.S. with a nonimmigrant status, to verify the bona fides of the stated purpose of the visit, be it temporary work, study, business or pleasure, and to check for any prior immigration violations. INS inspectors are asking more questions when foreign visitors present themselves for entry to the U.S., carefully reviewing the documentation required for admission in a particular status, and using a variety of computer resources to verify or investigate information.

In this climate, foreign national workers traveling are best advised to carry all necessary and appropriate documentation relevant to their jobs and status in the U.S., and to be prepared to answer questions that may arise at the port of entry upon returning. Procedures which formerly gave port of entry inspectors the discretion to waive a documentary requirement in the event of a mistake or oversight by a foreign national, for example, have been eliminated or strictly curtailed. Awareness of all requirements and careful planning will reduce the traveler's risk of being subject to delay or questioning at the time of entry or, at worst, denial of admission and removal from the country.

The following are typical items an H-1B (temporary professional worker) or L-1 (intracompany transferee) foreign national worker should have when seeking entry to the U.S. from overseas:

  • Current passport, valid for at least six (6) months from the date of entry

  • A valid, unexpired visa in the nonimmigrant category (i.e. H-1B or L-1, or H-4 or L-2 for family members, etc.)

  • The Form I-797 Notice of Approval of the underlying Petition for Nonimmigrant Worker classifying the worker as eligible for the status, or, if the person works for a company under H-1B "portability" while the petition is pending, the Receipt Notice showing proper INS filing

  • A copy of the relevant Petition for Nonimmigrant Worker forms and supporting documents filed with INS

  • Proof of continued employment or job offer with the petitioning company, in the form of recent paychecks and/or a current employment verification letter

  • Contact information for the company and immigration attorney

  • If the employee and any family members have filed applications for adjustment of status to permanent residency (Form I-485) while continuing to maintain H or L status, then in addition to the above they should each have the I-485 Receipt Notice (Form I-797).

  • If the employee and any family members have filed applications for adjustment of status to permanent residency (Form I-485) and no longer maintain H or L status, then they must each have the I-485 Receipt Notice and an Advance Parole Travel Document (Form I-512) in place of the H or L visa, petition and petition approval notice (items 2-4 above). An Employment Authorization Card (EAD) is required for such persons to continue working after the re-entry.
Visa applications at U.S. consulates abroad in the H and L categories have similarly come under heightened scrutiny, to more strictly enforce the eligibility criteria and to conduct broader security related background checks. In one new procedure, males between the ages of 16 and 45 must now complete a special form (the "DS-157") providing a series of detailed personal background questions on such topics as travel for the past ten years, employment history, military service or participation in an armed conflict, and organizations to which the applicant has belonged or contributed. These responses may subject an individual to a further security clearance procedure by the State Department taking at least 20 days. Males 16-45 from certain Muslim countries have in fact all been subject to this security clearance requirement since late last year. Travelers needing to apply for a visa should plan their travel schedules to account for these potential delays.

Even domestic travel by foreign national workers in the U.S. requires caution. Legally, foreign nationals in the U.S. have always been required to maintain in their possession certain evidence of lawful status such as, for H or L nonimmigrants, the I-94 card issued upon entry to the country or as part of a petition approval for change or extension of status. As a result of the events of September 11th, security with respect to domestic as well as international travelers continues to be high. Consequently, INS Border Patrol agents have been conducting random checks of the immigration status of domestic travelers in locations such as bus stations in cities near a border region.

Foreign workers in H-1B and L-1 status should be aware that foreign nationals in the U.S. can be stopped at anytime by INS, and asked for proof of identification and lawful status. Consequently, we suggest that these individuals always carry their passport and I-94 card, a copy of the underlying H-1B or L-1 petition approval notice, and some proof of employment. In the event a person is stopped and questioned and cannot provide proper documentation, then he or she may be detained while the INS agent attempts to verify the person's status through INS computer records. If that process is not successful, the person may be placed in proceedings for removal from the country.

Similarly, permanent residents of the U.S. should always carry their Alien Registration or Permanent Residence cards.

About The Author

George N. Lester IV and Punam Singh Rogers are of the Immigration Practice Group (the "Group") of the law firm of Foley, Hoag & Eliot LLP. Foley, Hoag & Eliot LLP is a full-service law firm of 200 lawyers in Boston and Washington, D.C. It was the first large law firm in Boston to develop an expertise in business immigration law, and for over thirty years its Group has represented employers in a full range of procedures to obtain temporary or permanent authorization to employ foreign professionals. George N. Lester IV has practiced immigration law for ten years, and regularly speaks to business, academic, and professional groups on immigration topics. As part of his regular AILA activities, Mr. Lester meets with officials of the INS Vermont Service Center to discuss H-1B and other liaison topics. He also serves as Treasurer and a Board Member of the Political Asylum/Immigration Representation Project (PAIR) in Boston, and received that organization's Pro Bono Attorney Award for Dedication and Commitment to Human Rights in May 1996. Mr. Lester is a 1989 graduate of Northeastern University School of Law. Punam Singh Rogers represents companies of all sizes, from start-ups to established multinationals, on immigration matters in a wide range of industries. She specializes in the filings of H-1B petitions for temporary professional workers and L-1 petitions and blanket L petitions for intracompany transferees, and related labor certification and permanent residence matters. Ms. Rogers is an active member of AILA, and is the Vice President for Asian American Immigration Lawyers from the Sub-continent of India. She is a member of the Boston Bar Association and volunteers for the International Institute of Boston and for the Political Asylum/Immigration Representation Project. Ms. Rogers received her J.D. from Seton Hall University School of Law in 1997.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.