Ramchand & Raval has successfully represented many companies and individuals with complex immigration matters. We have published numerous articles on H-1B regulations. Each case is different and we strongly recommend you obtain a case assessment by competent legal counsel. Before traveling on the H-1B visa, you must be aware of the following risks:

WARNING: If you do not have an existing H-1B visa stamp, you may be ineligible to reenter the country, as such, we recommend you speak to an attorney. It is absolutely critical. This article speaks to those who have an existing visa stamp which will be valid at the time of entering.

1. Visa Duration

It is important that you have a valid unexpired visa in order for you to return to the U.S. If you do not have a valid unexpired visa, then you must weigh the pros and cons of travel. There may be a significant delay in returning to the U.S. due to (1) a scheduling backlog for stamping at the consulate, (2) the consulate may issue a 221(g) administrative processing for your case, or (3) an outright denial of the visa. Speak with an experienced immigration attorney about the risks of travel in your specific case prior to traveling. You should ensure that there are no backlogs at the U.S. consulate where you plan on attending for stamping. Assess the risk of being issued a 221(g) Administrative Processing for your case, which will cause delays in returning to the U.S. (sometimes for months), or even being denied a visa at a U.S. Consulate. Remember, your visa is not a guarantee of reentry into the U.S. The visa is permission to reach a U.S. port, where a CBP officer will inspect and subsequently determine whether you are eligible for entry. Therefore, past violations, criminal records or other relevant matters can empower an officer to deny entry.

2. Validity of Employment

Ensure that the terms of your H-1B employment continue to be valid. Furthermore, ensure that the project upon which your H-1B is based, also continues to be valid. U.S. Consulates and CBP officers may call your employer or even end-clients to verify the validity and facts of employment. If there is any doubt, you should file an amendment or extension at the earliest.

3. H-1B Violations

Ensure you do not have any H-1B petition violations. If you have had a material change in your H-1B petition, ensure that the H-1B amendment was filed appropriately. Also, ensure that you have been paid the correct rate, which is stated on the Labor Conditions Application. If a U.S. Consular officer or CBP officer finds any violations of the H-1B petition (such as working at a different location or a different end-client), then your visa may be denied or you may not be admitted into the U.S. Furthermore, if you are going for stamping, this scenario can increase the chances of administrative processing and delaying your reentry into the United States.

4. Documentation

While going for visa stamping at a U.S. Consulate or entering the U.S., you must retain appropriate documentation to prove the validity of the terms of the H-1B petition. We recommend you have
the entire case file, the LCA, an updated letter from employer, an updated letter from the client (if applicable), and recent pay statements. Ensure the information is consistent in all documents and as authorized in your H-1B petition, such as the job title, job duties, rate of pay, work location, etc. Refresh your memory regarding the facts of your petition. Be honest with your answers as you may be quizzed about information. Giving a wrong answer due to a lapse in memory may lead to a denial of a visa by the consulate or denial of entry by a CBP officer.

5. Privacy Matters

The government has the right to search your bags and documents. Lately, officers have been searching electronic devices, such as laptops, tablets, and cellphones. When inspecting these devices, the officers also gain access to you and your friend’s social media history (more below). Be mindful of this!

6. Social Media Access

Inconsistent statements or inappropriate statements on social media can severely impact your entry into the U.S. For example, if you (1) claim on social media to have a different job
title than as stated on the applicable LCA, or (2) work for a different company than as stated on the corresponding H-1B petition, you may have an uphill battle in addressing these inconsistencies. Also, comments made on social media that are deemed to be threatening may cause you to be considered a security risk. These types of issues may cause a Consular Officer to deny you a visa or CBP Officer to deny you entry.

7. The Petitioner

Make sure your employer is in business and is in good standing with the government (immigration, labor department, etc.) The company should not have any ongoing immigration/labor issues or other investigations pending. If your company is currently the target on an investigation, your ability to get a visa or entry with a valid visa may be impacted.

In addition to the above matters, there are many other factors to take into consideration before traveling when in H-1B status. Speak with an experienced immigration attorney of the risks of travel in your specific case prior to traveling.