When an American employer offers a foreign citizen or national a job in the US, the employer can petition the government for a visa on behalf of the new employee. For certain specialty occupations and fashion models, the employee may receive an H1B visa—a non-immigrant, employment-based visa for temporary workers. With a valid H1B visa in hand, the employee should be cleared for travel to a US port of entry.
Keep in mind, however, that a visa does not guarantee admittance into the United States. When the visa-holder arrives at the US port of entry, he or she will need to interview with a Customs and Border Protection (CBP) agent in order to enter the country. The visa does not officially take full effect until the visa-holder passes the interview and receives a stamp from the CBP officer.
As long as you have all of the necessary documentation with the proper signatures, and you answer the interview questions honestly and genuinely, you shouldn’t have any issues making it past the border checkpoint. However, with all of the paperwork that’s required, it’s not unusual for a CBP officer to come across a missing signature or invalid field. If that’s the case for you, you’ll be required to return to your home country, fix the problem(s) with your paperwork, and return with valid documentation. It may be a headache, but it’s a lot better than having your visa revoked.
If the CBP officer has any reason to believe that your paperwork is fraudulent, that you have violated the terms of your visa, or that you intend to violate the terms of your visa, you may be sent back to your home country and have the visa revoked. Unfortunately, that means your employer will have to apply for a new H1B visa.
In either case, being denied entry into the United States at a port of entry is not the same as being deported. To be deported from the US, you would need to be allowed into the country first, and an Immigration Court judge would have to issue a removal order. Even if you have entered the country before and had your visa officially validated, being turned away at a port of entry still isn’t the same as deportation. That’s great news, as a removal order typically comes with a ban on re-entering the US for a period of 10 years, while being turned away from a port of entry doesn’t impose any type of ban on entering the US in the near future.
There are a number of non-immigrant, employment-based visas for temporary workers. The H1B visa specifically applies to the following occupations:
- Specialty occupations
- Services of exceptional merit and ability relating to a Department of Defense (DOD) cooperative research and development project
- Services as a fashion model of distinguished merit or ability
For a job to qualify as a specialty occupation, one of the following criteria must be met:
- A bachelor’s degree or higher is considered the minimum entry requirement for the position
- The degree requirement for the job in question is common to the industry, or the job is so complex/unique that it can only be performed by someone with a degree
- The employer typically requires a degree or equivalent certification for the position
- The nature of the specific job duties is so specialized and complex that the general knowledge required to perform said duties is typically associated with the achievement of a bachelor’s degree or higher
Furthermore, in order to qualify to accept a job offer in a specialty occupation, the prospective visa-holder will need to meet one of the following general requirements:
- The employee has completed a US bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university
- The employee has training, education, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree, and has recognition of expertise in the specialty through progressively responsible positions directly related to the specialty field
- The employee holds a foreign degree that is the equivalent to a US bachelor’s or higher degree in the specialty occupation
- The employee holds an unrestricted state registration, license, or certification which authorizes him or her to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment
DOD Researcher and Development Project Workers
The job in question must meet both of the following criteria in order to qualify as a DOD cooperative research and development project:
- A bachelor’s or higher degree—or its equivalent—is required to perform the job responsibilities
- The cooperative research and development project or co-production project is provided for under a government-to-government agreement administered by the DOD
Once a job has been determined to qualify as a DOD cooperative research and development project, the employee must meet one of the following general requirements in order to receive their visa:
- Have completed a US bachelor’s or higher degree required for the specific specialty occupation from an accredited college or university
- Hold a foreign degree that is the equivalent to a US bachelor’s or higher degree in the specialty occupation
- Hold an unrestricted state registration, license, or certification which authorizes the employee to fully practice the specialty occupation and engage in this specialty in the state of intended employment
- Have training, education, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions that are directly related to the specialty field
Upon meeting both of these general criteria, the foreign citizen or national may be awarded an H1B2 visa.
It may seem strange to lump fashion models into the category of specialty occupations, but such is the US immigration code. To qualify for an H1B3 visa, the position or service in question must require a fashion model of notable prominence. Furthermore, the fashion model must be of distinguished merit and ability.
What to Do If You Are Denied Entry by a CBP Officer
If you have an H1B visa and you are denied entry into the United States at a port of entry, your immediate options are unfortunately quite limited. The CBP officers on duty at the port of entry have the final say, and unless you can prove that there has been a mistake on their part, you will likely be forced to return to your home country and sort things out with your employer and the US embassy or consulate. The best course of action is to contact your employer and consult with an immigration attorney.
Call our Immigration team at(480) 626-2388 to discuss your case today.
Schedule Your Consultation
Fill out the form below to get your consultation and discuss your best legal options.