H1B Workers Denied Entry Based on Perceived Inconsistencies in Resumes

Foreign nationals requesting admission (or readmission) to the United States in H1B status, especially those serving as consultants in the IT industry, are facing increased scrutiny from U.S. Customs and Border Protection (CBP) officers stationed at U.S. ports of entry. One tool CBP officers frequently use to help determine whether a person should be admitted involves searching the foreign national’s electronic devices and examining her/his resume, looking for discrepancies or other possible areas of concern related to the individual’s employer or client. This tactic appears to have become more common in recent months, and prospective or returning H1B workers with vague or inaccurate resumes have been interrogated and, in many cases, denied entry through an expedited removal order or a withdrawal of application for admission.

CBP Has Authority to Search Electronic Devices

CBP officers have tremendous discretion to grant or refuse admission to the United States. Further, CBP has broad authority to search the data saved on the electronic devices of foreign nationals requesting admission to the United States, including eMails, text messages, social media posts, and saved documents. CBP officers may examine such data to determine whether the individual’s stated reasons for visiting the United States are consistent with the approved petition, visa application, or other representations to the government. In the H1B context, this examination can include information related to the individual’s work location, salary and other payments, the employer-employee relationship with the petitioner, and other factors.

Denial of Entry to the U.S. Permissible for Fraud / Misrepresentation

As mentioned, a more recent CBP tactic involves examining resumes H1B workers have submitted to employers, clients, or the government for exaggerated or inaccurate experience, or for other information that may be perceived as inconsistent with the individual’s approved petition or immigration history. An H1B worker with exaggerated experience may be accused of obtaining the position or assignment – and therefore the H1B approval – fraudulently.

Denials Based on Perceived Inconsistencies

More troubling are the numerous recent reports from individuals who have been denied entry based on the CBP’s misunderstanding of the information in the resumes, eMails, or other documents discovered on the laptops or cell phones searched. For example, it is common for an IT consultant to include a client’s name and locations on a resume in order to highlight the types of companies and industries with which that person has gained experience. The Murthy Law Firm has received reports of consultants who have provided remote services to U.S.-based clients while living overseas, included the clients’ U.S. locations in their respective resumes, and have then been accused of either working in the United States without authorization, or of creating a false resume with exaggerated information.

Conclusion

Given the increased scrutiny at ports of entry and the possibility that information can be misinterpreted, H1B workers should be aware of the data contained in their electronic devices like cell phones, laptops, or iPads, while traveling to the United States. Similarly, H1B workers should carefully review and understand the information included in the H1B petitions filed on their behalf, and answer any perceived inconsistencies, thoroughly and accurately, if questioned by a skeptical CBP officer.

 

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Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.
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