I hope this helps
On February 27, 2002, attorneys at The Law Office of Sheela Murthy had the
privilege of meeting with the Port of Entry (POE) Officers at Dulles
International Airport. As part of that meeting, we had a tour of the airport
facility, including the rooms where the secondary inspections and
interrogations take place as well as the rooms where those entering have
their immigrant visas stamped. We were shown, first hand, how their POE
process works by the Port Director, Mr. Val Garcia. Clearly, September 11th
has had an impact on inspection procedures.
B-1/B-2
Individuals with multiple-entry B-1/B-2 visas will be subject to strict
scrutiny if they spend extended time in the U.S. on a frequent basis.
Individuals who enter the U.S. on the B1/B2 visas for periods close to the
six-month maximum, who then depart the U.S. and attempt to reenter shortly
thereafter, will likely be subject to strict review regarding the location
of their true domiciles. These individuals stand a good chance of having
their entry denied. Persons on these visas can no longer expect easy access
in and out of the U.S. if they have spent extended periods here in the past.
H-1s and Other Non-Immigrants
Those entering on H1Bs and other non-immigrant visas will need to be
diligent about checking the expiration dates on their I-94 cards issued at
the port of entry. The I-94 is the small, white card issued at the POE that
provides the authorized length of stay (status) in the U.S. It could also be
the card attached to the H1B approval notice on the right-hand corner, which
is a tear-off portion. If the person entering on the H1B or other
non-immigrant visa is in possession of a Form I-797 (Approval Notice) for an
extension of status, the proper procedure is for the person to submit the
latest I-797 approval notice to the POE inspector, so that the inspector
will issue the new I-94, valid through the extension or latest H1B approval
date. However, if one does not have a new I-797, the POE will only admit the
person for the remaining time on her/his visa.
In some instances, the POE may use the visa date instead of the I-797 date,
either in error or based on the fact that the H1B employee failed to submit
the latest H1B approval notice to the POE inspector. In previous discussions
with the POE officers, they indicated that they would be willing to correct
an error caused by the POE inspector. This is no longer the case, according
to the Dulles Port Director, even if the H1B employee submitted the latest
I-94 card. Their position is that the POE inspectors / officers know which
date to use. If they used the date on the visa stamp in the Passport and not
the H1B approval notice date, the H1B applicant for admission must not then
have shown the latest INS-issued I-797 approval notice. Since there is no
way to determine what was actually shown at the POE, it is impossible to win
this "he says, she says" argument. It is therefore vital that one submit to
the INS POE inspector the latest H1B approval notice and then verify that
the expiration date put on the I-94 matches the latest H1B approval notice
validity date. If there are errors or discrepancies, the issue needs to be
addressed immediately with the INS inspector. Failure to do so could result
in one\'s being deemed to be out of status earlier than anticipated. If not
detected and corrected, there is a possibility of the 3-year or 10-year bar
applying against that person.
Pursuant to current INS policy and a procedural memorandum, individuals who
travel on valid H-1 visas, with H-1 extension cases pending, may obtain
reentry based on proof of the pending extension. These individuals are to be
admitted for the duration of the previously approved H-1 case, plus ten
days. However, if the H-1 extension case is approved while such persons are
out of the country, the INS memorandum of January 2001 states that the POE
is to check this matter via the INS computer CLAIMS database and issue entry
valid for the latest H1B-approved period. However, the POE Director at
Dulles advised that they are unable to follow this course of action, as they
do not have sufficiently up-to-date computers allowing access to this
information. This, therefore, could be problematic for the H1B applicant. If
one must travel with an extension pending, s/he should make arrangements to
have the approval notice sent to him/her by the employer or the attorney, to
present at the POE. Otherwise, the POE will only admit the individual for
the duration of his or her prior H-1 submitted to the POE. Since the most
recent I-94 issued governs status, the situation may not be remedied by the
existence of an I-94 attached to the approval notice.
Copyright 2002, THE LAW OFFICE OF SHEELA MURTHY, PC
