An Inside View of the Port-of-Entry Inspection Process
Posted Mar 11, 2001

Recently, in late February 2001, the attorneys at The Law Office of Sheela Murthy, P.C. had the opportunity to meet with the Port Directors of three major airports on the East Coast, in order to better understand the immigration process at their airports as well as national policies and trends. Their comments provided valuable insight into INS procedures at ports-of-entry (POEs) which we share with you. The meeting, which was organized by the Washington, D.C. Chapter of the American Immigration Lawyers Association (AILA), offered rare insight into how the INS inspections process works.

The inspections process at POEs involves dealing with arriving passengers on international flights to the U.S. The Port Director is the person in charge of the airport for all immigration matters. The Port Directors spoke specifically about the following three airports: Dulles International Airport in Virginia, Newark International Airport in New Jersey, and Baltimore-Washington International Airport in Maryland. In addition, there was a senior official from INS Headquarters who spoke about INS policies guiding the inspections process.

A Delicate Balancing Act

The INS Inspector is the officer who checks each traveler's papers and determines whether or not to admit the person to the United States. INS inspectors have to balance two vitally important, and sometimes conflicting, goals. On the one hand they need to process arriving travelers conveniently and efficiently, so as not to impede international travel and commerce. On the other hand, they are the gatekeepers responsible for keeping terrorists and other dangerous persons, as well as people coming for fraudulent purposes, out of the country. The officials who spoke at the meeting recognized that the vast majority of travelers are legitimate - the challenge is to distinguish the legitimate traveler from the person who should be denied entry to the United States.

Steps in the Inspection Process : Primary and Secondary Inspection

All arriving passengers go through the primary inspection process. The goal of primary inspection is to process travelers as quickly as possible, so Inspectors have a very short period of time to check that a person's papers are in order. However, if the Inspector has reason to believe that more thorough questioning of the person, or examination of documents, is needed to make a determination as to whether the person can be admitted, the Inspector refers the person to secondary inspection. The Inspectors in secondary inspection can take the time to conduct a detailed interview, without keeping a whole line of exhausted international passengers waiting. 

If space and facilities permit, some large airports, such as Dulles, have two separate secondary inspection areas, often termed as "hard secondary" and "soft secondary." Persons who may have serious problems, such as those whose names appear on a computerized "lookout list" because of national security or law enforcement concerns, or those who do not carry appropriate documents, would be questioned in hard secondary. People who are probably legitimate travelers but who have to be referred to secondary because their cases take a longer time to process would go to soft secondary. An example of someone in the latter group, for soft secondary, would be a new immigrant family, arriving with an immigrant visa from a consulate. In such a case, there are documents to check and additional forms to complete.

Traveling with Prior Visa Stamp and New H1B Approval Notice

As many MurthyBulletin readers are aware, it is not necessary to obtain a new visa stamp when changing H1B employers, unless the prior H1B visa is about to expire anyway. Rather, it is possible to use the old H1B visa stamp to travel and also take along the latest H1B approval notice. Persons who travel based on the old visa stamp and new H1B approval should be issued a new I-94 card upon returning to the U.S., and the expiration date on the I-94 card should match the expiration of the H1B approval notice, not the expiration date of the visa stamp in the passport, which is likely to be much earlier.

Unfortunately, sometimes people in this situation are mistakenly given an I-94 card that matches the visa expiration date. We caution travelers to check the date on the I-94 card. If it has the wrong date, please point that out to the Inspector. If the Inspector is not helpful, then one can always ask to speak with a Supervisor.

Correcting Mistakes on I-94 Cards

The Inspections officials taking part in the AILA panel discussion were all aware that the I-94 card should be issued with the same expiration date as the H1B approval, but they acknowledged that on occasion an Inspector might mistakenly put the visa expiration date on the I-94 card. While it is always best to look at the I-94 before leaving the airport, sometimes people do forget to check.

All three officials stated that they are willing to correct the I-94 card if the error was their responsibility. It may be possible to call the Inspections section at a particular POE and discuss the problem with an officer there, or to go to the POE and obtain assistance in-person. It may even be possible if a person entered the U.S. through one POE and then traveled onward to a different part of the country, for that second location to issue a correction to avoid the person having to fly a distance to correct the INS error. Some POEs may be more willing than others to issue corrected cards in this latter situation. Some local INS offices are willing to correct the problem too. Sometimes we find that the correction procedure can be quite expensive and time consuming, even though it may have occurred because of INS error.

If you think you may have a mistake on your I-94 card, it is best to consult with an attorney. Sometimes there is a simpler or quicker solution to the problem, such as having the date corrected the next time you travel. In other cases, it is a larger problem because one might only notice the mistake after the date has expired and there could be severe legal consequences in some situations.

Portability: Traveling with Prior H1B Approval and New Receipt

In a recent article in the MurthyBulletin, entitled INS Instructs Inspectors on Travel and H1B Portability, we discussed the new INS guidance for Inspectors when an H1B employee travels abroad and reenters the U.S. with a prior H1B approval but with an INS receipt for a pending H1B petition with a new employer. Under the American Competitiveness in the Twenty First Century Act (AC21), such a person is allowed to reenter the U.S. but the INS Inspector will only mention the date of the prior approval on the I-94 card. For more details on AC21 and the reentry process for those traveling abroad, kindly refer to our earlier article. Of course, the Inspections officials at the AILA meeting were familiar with those instructions.

Returning Lawful Permanent Residents

A Green Card holder returning from a trip of less than 180 days would not generally be subjected to much questioning upon his or her return. For those returning from trips of 180 days or more, Inspectors check more carefully, asking questions such as the purpose of the trip, to make sure that the person is maintaining a U.S. residence and has other ties to the U.S.

With regard to a Green Card holder who travels out for 180 days or more but who has a re-entry permit, there was some disagreement between the INS officials and attorneys present. One of the officials stated that the person would still be questioned regarding intent to maintain U.S. permanent resident status, but according to an INS memo, there should be no questioning regarding the length of the absence when a person has a re-entry permit. In effect, the Memo explains that the permit takes care of that issue.

Services Provided to Persons who are Denied Entry to the U.S.

When a person, for whatever reason, is not allowed to enter the U.S., the Inspectors try to help to whatever extent possible; by notifying persons who may be waiting to meet the traveler, for example. At some POEs, the Inspector actually goes out to the waiting area to find the people, while at other POEs, they do not have enough staff for that, and instead send an airline representative out. When possible, the person who is denied admission will be allowed to make a telephone call. If space permits and if the person denied entry is deemed not to adversely affect the interests of the U.S., some POEs may have a place where the traveler can speak privately with the people who came to meet him or her.

Infrastructure Issues at POEs

The INS Port Directors asked us to keep in mind that many older airports were not built to accommodate today's large numbers of travelers. There may not be enough space to separate out "hard" from "soft" secondary, for example, or enough phone lines to allow every person denied entry to telephone relatives. Also, some of the smaller airports may be able to provide better customer service than many major airports that are older and overwhelmed with arriving passengers and budget shortages.

Complaint Procedures

All POEs have posters that instruct travelers on how to file a complaint. The poster displays a toll free number and also states that the first step should be to speak to the Inspector on duty. Generally the supervisor is available and if needed, the Port Director or Assistant Port Director is also available to speak with people. If the complaint is detailed, the Inspector may suggest that the person complete a written complaint form, which is then sent to INS Headquarters. The complaint forms are available at every POE.

The above description provides an overview of the process through the eyes of the INS and helps us to better understand their functions. As international travelers, most of us do not understand or see the processes from their perspective. It was an interesting meeting and all of the INS speakers were helpful and knowledgeable.