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8 Best Practices for Managing U.S. Immigration Compliance in 2018 (Part 5 of 5)

In this five-part series, we highlight three important USCIS policy changes and provide eight best practice tips in light of the ever-tightening U.S. immigration environment. This is the fifth and final installment in the series. Click to read Part 1, Part 2, Part 3, and Part 4.

This post will discuss the final two tips and our conclusion:

7. Educate Overseas Employees on U.S. Immigration Requirements

Work Visa or Business Visitor?  Increasingly Customs and Border Protection (“CBP”) officers are refusing entry on ESTA or business visitor visas to overseas-based managers and executives who have direct reports in the US.  It is important to understand the triggers for these refusals and educate your overseas-based employees about what is and is not allowed when seeking entry to the US as a business visitor.   Sometimes CBP incorrectly refuses entry to a business executive entering as a visitor because the CBP officer mistakenly believes the executive will be working in the US by simply meeting with his or her US-based team. Although the executive is not engaging in productive “work” in the US, if the individual qualifies for a temporary work visa, it is a good practice to err on the side of caution and proactively obtain the work visa whenever possible.   

Rights at the Airport or Border?  Provide information to your employees about what their rights are when seeking entry to the United States.  Many people are shocked to learn how much authority CBP officers have to question and detain those seeking entry, which may include searching  their laptops and handheld devices if they suspect the person is not being truthful about the purpose of the trip, or if the officer suspects the person poses a threat or danger to the US.  

Visitors, as well as those seeking entry on a work visa, must understand their rights and responsibilities, and the future immigration consequences of being refused entry to the US.

8. Ensure Your Foreign Workers and Their Family Members Monitor Their I-94 Expiration Dates

It is not the visa stamp or the I-797 Visa Petition Approval Notice that governs how long someone is allowed to remain in the US.  Instead, for most visa types it is the Form I-94 notice (https://i94.cpb.dhs.gov) that sets the expiration date for each foreign national’s authorization to remain in the US.   It is incumbent on each foreign worker and his or her family members to check the online status after each­ entry to the US following a trip abroad to understand the date until which they have been “admitted” to the US.  The “admitted to” dates sometimes are shortened, especially if the individual’s passport is expiring before the end date on the I-797 approval notice.  In today’s zero tolerance immigration environment, staying in the US even one day beyond the expiration date on the I-94 can have very serious repercussions. 

If you or your employee discover that he or she has overstayed the I-94 date, inform your immigration counsel immediately as corrective action will be required.

Conclusion

Implementing the above best practices will help ensure your company remains compliant and your foreign workers remain in legal status.

 

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Susan J. Cohen

Member / Founding Chair, Immigration Practice

Susan J. Cohen is Chair of Mintz's Immigration Practice and a nationally recognized Immigration lawyer. She helps corporate clients manage immigration challenges. Susan is an American Immigration Lawyers Association (AILA) member and she's contributed to state and federal immigration regulations.