Immigration and Border Protection: What Every Visa Holder Must Know

Admissibility at a US port of entry requires satisfying the requirements of the applicable visa category, having a valid visa or travel authorization, and not being subject to grounds of inadmissibility, which include prior immigration violations, criminal convictions, misrepresentation, and security-related grounds. A CBP officer can parole, admit, or refuse admission, and a refused foreign national may be placed in expedited removal if they cannot establish a credible fear of persecution.

Employment based immigration and immigration waivers counsel can advise on admissibility requirements for the specific traveler and visa category and develop the admissibility and waiver strategy.

Immigration compliance and visa denial and refusal counsel can advise on specific visa requirements, assess any red flags, and develop the visa application and admissibility strategy.

CBP has broad authority to conduct warrantless searches at the border and at international airports, including the traveler's person, luggage, and electronic devices without requiring individualized suspicion. Invoking the Fifth Amendment right not to answer questions is legally protected but may result in secondary inspection, and forensic device searches require reasonable suspicion under the Ninth Circuit standard but not in most other circuits.

National security and federal criminal defense counsel can advise on the scope of CBP's border search authority, assess whether a specific search exceeded that authority, and develop the response or challenge strategy.

The major employment-based visa categories include the H-1B for specialty occupation workers subject to an annual cap and lottery, the L-1A and L-1B for intracompany transferees, the O-1 for individuals with extraordinary ability, and the TN visa for Canadian and Mexican professionals. The EB-1 through EB-3 categories provide paths to permanent residence, and most EB-2 and EB-3 petitions require a PERM labor certification.

H-1B visa and employment based immigration counsel can advise on the most appropriate employment-based visa category, assess whether the position and candidate satisfy the requirements, and develop the petition preparation and filing strategy.

Every employer must complete a Form I-9 for each employee hired after November 6, 1986, verifying identity and employment authorization by examining original documents. An ICE audit can result in civil penalties for technical and substantive violations, and knowingly employing unauthorized workers creates civil and criminal liability, so employers should conduct periodic internal I-9 audits and ensure timely reverification when work authorization expires.

Immigration compliance and employment authorization document counsel can advise on the I-9 requirements, assess whether current practices meet federal standards, and develop the I-9 compliance program and audit response strategy.

Removal proceedings are initiated by a Notice to Appear charging the foreign national with being removable, heard before an immigration judge with appeals available to the Board of Immigration Appeals and then to the applicable federal court. Available defenses include cancellation of removal for qualifying long-term residents, asylum and withholding of removal for individuals who face persecution, and adjustment of status if an immigrant visa is immediately available.

Deportation defense and deportation counsel can advise on the defenses available in the specific removal proceeding and develop the removal defense and appeal strategy.

Immigration waivers allow eligible individuals to overcome specific grounds of inadmissibility or deportability, and the availability and requirements depend on the specific ground, family ties, and severity of the conduct. The most commonly sought waivers include the I-601 waiver for unlawful presence, misrepresentation, and certain criminal grounds, and all waivers require demonstrating extreme hardship to a qualifying US citizen or lawful permanent resident family member.

Immigration waivers and immigration compliance counsel can advise on the waivers available for the specific ground, assess whether the individual qualifies, and develop the waiver application and documentation strategy.

To apply for naturalization, an applicant must have been a lawful permanent resident for five years, or three years if married to and living with a US citizen, must have been continuously present without any single absence of more than six months, must demonstrate good moral character, and must pass an English language test and a civics test. Any arrests, convictions, or periods of unlawful presence can affect the good moral character determination.

Naturalization and citizenship and naturalization law counsel can advise on whether the individual meets all naturalization requirements, assess potential obstacles, and develop the naturalization petition and interview strategy.

DACA grants two-year renewable periods of deferred action and work authorization to certain individuals who were brought to the US as children, arrived before their 16th birthday, and have continuously resided in the US since June 15, 2007, but the program has been subject to ongoing legal challenges and its future is uncertain. DACA does not provide a path to lawful permanent residence, and recipients should consult counsel about other available forms of immigration relief.

DACA and asylum counsel can advise on the protections available under current deferred action policies, assess the ongoing risks, and develop the status protection and contingency planning strategy.