US Customs and Border Protection Entry Questions & Answers

Warrantless Searches

What circumstances justify a warrantless search by CBP of a passenger’s cell phone or computer?

CBP Response:

Please refer to the discussion of CBP search authority at CBP.gov; click on the “Travel” link on the homepage and then on the “CBP Search Authority” link which contains several documents addressing this issue including the “CBP Policy Regarding Border Search of Electronic Devices Containing Information”, which states, “In the course of a border search, with or without an individualized suspicion, an Officer may examine electronic devices and may review and analyze the information encountered at the border”.

Property Seizure

Suppose CBP asks for the source/origination of funds and intent of use by the petitioner, requiring petitioner to show that the monies/properties seized were from a legal source and that said funds are for a legal purpose. What is the threshold tracing requirement for source of funds? Would it be enough to show that the funds that were in possession of the petition prior to seizure were withdrawn from a bank account or would a petitioner need to go further and further to demonstrate that the withdrawn funds were legally obtained, e.g. from employment?

CBP Response:

This question appears to relate to a petition for return of currency or monetary instruments seized by CBP for failure to comply with currency reporting requirements. For general information on this issue go to: http://cbp.gov/xp/cgov/trade/priority_trade/penalties/

B-1/B-2 Entry

Former EB-1 applicant (I-401/I-485 previously filed) has petitions subsequently withdrawn/denied due to petitioner’s business decisions. What should the beneficiary/applicant bring in terms of documentation on subsequent entries as B-1 to explain that he/she no longer has immigrant intent and the business/petitioner decided they needed the beneficiary to remain abroad?

CBP Response:

There are no prescribed documents for the situation discussed in this question. The alien should provide whatever documentation that will show that the Form I-140 has been withdrawn or denied and that the alien is not the beneficiary of a pending Form I-485. This alien must establish to the satisfaction of the inspecting officer that he or she is a bona-fide nonimmigrant temporary visitor for business (B-1). If this alien is still the beneficiary of a pending Form I-485, he or she would be inadmissible in the B-1 nonimmigrant visa classification.

TN Visas

Assuming that a Mexican Citizen holds a passport that is valid for at least three years and that the alien is otherwise admissible, please confirm that if additional evidence is required to support the three-year TN admission, it is sufficient for the alien to present an employer’s letter or statement confirming that the employer intends to employ the alien for a temporary period of up to three years.

CBP Response:

The period of admission in the TN classification for an otherwise admissible Citizen of Mexico will depend upon the documentation submitted showing the intended length of employment. For example, if the intended length of employment shown is for one year, the CBP officer should admit the alien for one year and if the intended length of employment is for three years, the officer should admit the alien for three years. Consider these examples:

  • A Citizen of Mexico presents a TN Visa valid for a period of one year accompanied by a letter from the prospective employer indicating that the intended period of employment is for a period of three years. This nonimmigrant alien should be admitted for a period of three years, if the alien’s passport will remain valid throughout this period and he or she is otherwise admissible.
  • A Citizen of Mexico presents a TN Visa valid that will expire one week after the date of application for admission accompanied by a letter from a prospective employer indicating that the intended period of employment is for a period of one year. This nonimmigrant alien should be admitted for a period of one year, if the alien’s passport will remain valid throughout this period and he or she is otherwise admissible.
  • The visa expiration date does not limit the period of admission but the visa must be valid when the alien applies for admission unless the alien meets all of the criteria listed in 22 CFR 41.122(d) [Automatic Revalidation], in which the alien would be admitted for the balance of the original period of admission subject to the passport validity requirements of 8 CFR 214.1(a)(3)(i).

Admission Refusals

Will CBP Officers provide a copy of the record of refusal of admission to the legal representative of an alien denied admission upon request? If so, is there a specific time period in which the request of refusal must be made to the local CBP office? What is the approximate time period for the CBP office to respond to such requests?

CBP Response:

CBP Officers have no authority to release the above-cited records to the Alien’s legal representative. Such records may only be released in accordance with the Freedom of Information Act (FOIA). The CBP FOIA Office in Washington, DC is the office to which requests for such records may be made. For contact information, go to CBP.gov and click on the “FOIA” link at the bottom of the webpage.

H-1B Admission

If an H-1B beneficiary returns to the US a day before his or her H-1B validity date expires – for example on July 20, 2013 with an H-1B Approval Notice (I-797) valid until July 21, 2013 – H-1B visa valid until July 21, 2013 as well. Applicant has AOS pending, but did not apply for Advance Parole, prior to travel, nor was an H-1B extension application filed. How will CBP admit this applicant and for how long?

CBP Response:

As long as the underlying petition is still valid, the alien is still employed by the petitioner and is otherwise admissible, the above-described alien should be admitted as an H-1B nonimmigrant until July 31, 2013 (petition validity plus 10 days) unless the alien fails to meet the passport validity requirements of 8 CFR 214.1(a)(3)(i).

Planning an arrival so close to the petition expiration date could prove to be counterproductive if unforeseen circumstances delay the alien’s arrival past the petition expiration date; this alien would then be inadmissible under Section 212 (a)(7)(A)(i)(I), INA due to the absence of a valid petition. CBP has no authority to waive the petition requirement.

Editor: Graham Post

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