The New Normal

On day one of his administration, Donald Trump made good on his promise to limit immigration to the US.  Initially, the focus was on illegal immigration—visitors who overstayed their visas and those who crossed the border to the US without any visa at all. That focus has now expanded to include legal immigration, including by non-citizen employees of US companies.

B-1 Temporary Business Visa

The B-1 Temporary Business Visa and an Electronic System for Travel Authorization (“ESTA”) visa permit individuals to come to the US for limited periods of time to consult with colleagues, negotiate contracts or engage in other short-term activities, such as training; these visas do not permit an individual to engage in day-to-day business.

The line between what is permissible and impermissible activity is fuzzy, at best, and that has enabled Customs and Border Control (“CPB”) to detain foreign nationals for secondary screening, delaying or prohibiting their entry altogether.  Non-citizen employees who are denied entry under an expedited removal order are barred from entering the US for five years from the date of the order.  A five-year bar on entry by a key employee can potentially wreak havoc on an employer’s business.

Secondary Screening

In making a determination to require secondary screening, CPB looks at a number of factors, including the length and frequency of stays and how often an individual seeks to enter the US.  Although B-1 and ESTA visas are valid for stays of 180 and 90 days respectively, a stay of more than three weeks raises a red flag for CPB.  Employees accompanied by school-age children at the start of a school year and directory listings and social media posts suggesting that an individual is a US-bases employee may also trigger heightened scrutiny.

For non-citizen employees detained for secondary screening, the right documentation can help ensure a satisfactory outcome.  Things like a letter or memo inviting (or summoning) a non-citizen employee and outlining the goal or purpose of the visit in terms of the type of activity that is “permissible”; a foreign business card; evidence of strong ties to the home country, such as a residential lease or a mortgage statement; and evidence that the employer has US-based workers on its payroll doing the day-to-day work that supports or is supported by the non-citizen employee’s area of responsibility.

Preparation and Documentation are Key

Heightened scrutiny is the new normal, and, as is often the case in employment-related matters, preparation and documentation are key to a successful outcome.

If you want any more information on situations like this, please feel free to reach out to Praxis Legal Solutions today.