USCBP Questions for H-1Bs Entering the U.S.

1. CBP Questions Focus on H1B Work Location and Wage Computations:

Based upon the cases that we have seen, and reports of the incidents in Newark, NJ, the CBP's (U.S. Customs and Border Protection) questions were primarily aimed at determining the nature and location of the foreign national's work, and the manner of wage payment calculations.

The CBP asked about the location of the work. In the instances of expedited removal that came to our attention, the CBP asked questions about whether there was a contract between the H1B petitioner and the end client. Where there was not a direct contract, they appeared, at least in some cases, to misinterpret the concepts in the recent employer-employee relationship memo to arbitrarily determine that there was not valid H1B employment.

Other questions related to the manner of payment of the employee. The questions included whether anyone takes a cut or portion of the individual's pay. This can be a confusing question for some IT consultants who may think in terms of their billing rates and related bonus structures, rather than the required salary set forth in their H1B petitions.

2. Respond to CBP Questions Accurately and Based on Personal Knowledge:

It is necessary that any answers provided to a government official are correct. Individuals who are questioned at the POE should only give information based on direct, personal knowledge. Most employees do not have this type of information about the contracts entered into by their employers. These contracts are usually private, proprietary matters that are not freely divulged to employees. One should never guess or make assumptions when giving answers to any government official.

If an individual is being asked for information that s/he does not have, then it would be more appropriate for the CBP to contact the H1B employer. These concerns might be better addressed through a deferred inspection. This would allow for submission of proof that the worker is acting consistently with the H1B petition approval.

3. Difference between Wage Rate and Billing Rate for Consulting Companies:

The USCIS previously approved many H1B petitions based on employment arrangements that were questioned at the Newark POE. That is, the cases have clearly reflected employment at third-party worksites, and have included proof of the existence of mid vendors between the petitioner and the end client. The USCIS has uniformly insisted upon detailed proof of the nature of the position, including end client letters and related contracts in H1B petitions in recent years. The consulates that issue most H1B visas have been applying similar standards.