INS Port-of-Entry Inspectors Verifying Work Location of H1B Employment
Posted Jun 24, 2000

It has been reported that INS port-of-entry inspectors, especially at Boston and Chicago, have been requesting and scrutinizing copies of documents, including the Labor Condition Application (LCA) submitted to the Immigration and Naturalization Service (INS) at the time of filing the H1B Petition. As some of you may know, several members of the staff at the Law Office of Sheela Murthy attended the Annual Conference of the American Immigration Lawyers Association (AILA) in Chicago, IL from June 14 - 18, 2000. Attorney Sheela Murthy was an invited speaker at a session on Immigrant Petitions without Labor Certification, focusing on complex issues of EB-1 and National Interest Waiver cases. During one of the sessions at the Annual Conference on H1B issues, we obtained the following information, which we wish to share with you.

If an H1B visa holder is entering the U.S. at a location that is different from the location mentioned on the Labor Condition Application (LCA), he/she is often questioned and is asked to produce an airline ticket as evidence of an arranged flight to the location mentioned on the LCA. In some cases, those in approved H-1 status have been denied entry into the U.S. For example, we are aware of one case in which a computer programmer who decided to first visit a friend in another city before taking up the job at the approved location. He was planning to travel by train from the friend’s city to the job location. Thus, he had no ticket for his final destination. This applicant was accused of fraud and sent back to his country. Under the expedited removal procedures, he has been barred for five years from coming back. (In some cases, people have been successful in fighting this restriction; but obviously it is cumbersome and expensive to pursue this type of case from abroad.)

These harsh measures clearly indicate the need for companies and H1B employees to ensure that they have a certified LCA for the location where the employee is working. While amendments for change of job location may or may not be required by law, it is INS policy to require such amendments, so employers would be well advised to file H1B amendments when changing a worker’s job location to an area not covered by the LCA.

At AILA’s 2000 Spring CLE Conference, held on March 31, 2000 in Washington, D.C., the issue of INS inspectors requesting LCAs was raised by several AILA members at a panel discussion with INS border and enforcement officials. Donna Kay Barnes, INS Acting Director, Inspections, Field Operations, stated that it was not proper for inspectors to be requesting LCAs and that she would look into the matter and see if further training was needed to curtail this practice. It appeared at that time that the problem was limited to Boston, so the INS might be handling the matter directly with the Boston port-of-entry, rather than issuing a memo with instructions for all ports-of-entry.

A recent decision by the INS Administrative Appeals Office (AAO) underscores the fact that the LCA is a Department of Labor (DOL) form, and is it not the INS’s role to ensure compliance with an LCA. In that case, involving an H1B Petition filed by an information technology (IT) contracting company, the INS had requested proof of the employer’s ability to pay the wage. The AAO held that “wage determinations and the enforcement of their payment with respect to the H1B classification are the sole responsibility of the Department of Labor.” While this case does not directly address the job location issue, the AAO opinion does affirm that it is up to the DOL -- and not the INS -- to ensure compliance with the terms of an LCA.

Further details about issues discussed in this AAO case will be included in next week’s MurthyBulletin.