Increased Scrutiny at U.S. Ports of Entry: What You Need to Know About Expedited Removal Orders

There are reports of heightened scrutiny by U.S. Customs and Border Protection (CBP) officers at U.S. ports of entry (POEs), even for individuals entering the U.S. under employment-based visas such as the H1B. This heightened scrutiny can lead to lines of intense questioning and searches of travelers’ phones and electronic devices and can ultimately result in the issuance of expedited removal orders (EROs). An ERO carries a five-year ban on reentry, so understanding some basic details of these orders is imperative, especially in times of aggressive enforcement efforts by immigration officials.

What Is an ERO?

An ERO is one of the most serious outcomes of a CBP inspection. If issued, it means:

• You are denied entry into the U.S. immediately.
• Your visa “stamp” is canceled on the spot.
• You are barred from reentering the U.S. for five years.

Overcoming this five-year ban requires a special waiver, which is not automatic and is difficult to obtain. Moreover, the process can take many months, and sometimes over a year.

Searches and Questioning by CBP

CBP officers have broad authority at POEs. They are increasingly checking travelers’ phones, including eMails, WhatsApp conversations, and even social media activity. This can include reviewing messages with recruiters, friends, or colleagues that, if misunderstood, may raise questions about your true intentions for entering the U.S.

Unfortunately, statements made under pressure during secondary inspection or informal conversations can be used against you. This can result in CBP officers misinterpreting the facts and the law regarding employment-based visas. Despite these inaccuracies and misinterpretations, their decisions unfortunately can still result in immediate and severe immigration penalties.

Common Scenario Leading to EROs: Resume Sharing

One reason someone may be issued an ERO involves resume sharing. A typical fact pattern involves an individual requesting admission in H1B status. CBP inspects the traveler’s phone and finds messages from recruiters and HR departments from other companies, or even chats with friends where an individual is sharing their resume. CBP may then conclude that the person misrepresented their true purpose for entering the U.S. and issues an ERO on grounds of fraud or misrepresentation.

It is not illegal to explore other job opportunities, as long as the individual’s intent when entering the U.S. is to work for the H1B sponsor listed on the approval. However, it is important for individuals to realize that CBP can search your phone and may view active job hunting – or even a casual conversation with friends about looking for other opportunities in the future – before starting employment as suspicious.

What to Do If You Receive an ERO

If you or someone you know is issued an ERO, the following steps may prove useful:

• Keep all documents provided by CBP – including any sworn statements or summaries. If no documents are issued, ask for them. These may be important for future legal review.
• Review documents carefully – checking for factual errors or misstatements. These could be important for challenging the ERO.
• Consult an immigration attorney immediately. In some cases, it may be possible to negotiate to convert the ERO into a “Withdrawal of Application for Admission,” which avoids the five-year bar. It is important to reach out immediately to preserve all legal options.

Conclusion

Be cautious and prepared when entering the U.S. on a work visa. Understand that messages or documents on electronic devices could be misinterpreted as showing intent to work for an employer other than the sponsor on the approval notice. An ERO is serious; however, with proper documentation and legal guidance, there still may be options to correct or mitigate the outcome.

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