Survey at the US border: primary and secondary inspection

Whether with a visa or ESTA - every traveler to the USA should be aware that it is always only at the border control that a decision is made whether a person may enter the United States or not. Occasionally there are inquiries up to intensive questioning. In the following we will therefore deal with the important topic of entry controls or primary and secondary inspection.

• Who decides on entry into the USA?
• What is a Primary Inspection?
• What is a Secondary Inspection?
• Enquiries to H-1B visa holders

Who decides on entry into the USA

The US authorities are making efforts to speed up entry into the US for travellers, e.g. through the Global Entry Program and Automated Passport Control Points (APC) for persons travelling visa-free under the Visa Waiver Program (VWP). Whether or not the U.S. traveler is allowed to cross the border and enter the country is ultimately always decided by the border official of the U.S. Customs and Border Protection (CBP) during border control.

For your understanding: An ESTA travel authorization or a US visa in your passport only allows you to apply for entry to the United States.

What is a Primary Inspection?

In a so-called Primary Inspection, the CBP Officer first checks the passport and the ESTA approval or US visa at the Port of Entry, i.e. at the border checkpoint at the airport, port or national border.

What questions are asked during a Primary Inspection?

In general, the question is asked what the person intends to do in the USA and for how long the stay is planned. For example, you could specify "Business" as the purpose of the trip for a business trip. On the other hand, those who want to take a vacation in the USA state "Pleasure" as their answer.

Tip: You should always answer truthfully!

What happens after the interview?

If the border official has no doubts about the person and the purpose of the journey, the I-94 stamp is used to record the entry status and the permitted length of stay in the passport. This means that the traveler is allowed to enter and therefore can leave the border checkpoint and officially enter the USA.

What is a Secondary Inspection?

If there are concerns about the person, the intention to enter the country or the visa, the US official has the possibility to conduct a so-called Secondary Inspection. This second examination is more intensive and detailed than the first one and may take a few hours.

WHAT QUESTIONS ARE POSSIBLE IN A Secondary INSPECTION?

The questions depend, among other things, on the exact travel plans, the exact purpose of the trip and, if applicable, the goods subject to duty. In addition, border officials have the authority to examine the luggage of US travellers and to gain access to laptops and smartphones carried on them. The aim is to shed more light on certain facts and travel intentions and, ideally, to clarify them so that entry can be granted.

For example, if a person states that he or she wishes to travel to friends without a visa by means of an ESTA permit, but has a signed US employment contract in his or her luggage, i.e. obviously intends to work in the USA, this is a violation of the entry regulations. If the U.S. border official concludes that a person does not qualify for entry, he or she has the option to refuse entry. In the above example, the traveler would be informed that he or she is denied entry with ESTA and that in the future, entry to the USA must be made with a (work) visa. As a rule, a protocol ("Record of Sworn Statement") is drawn up, a copy of which is given to the USA traveller.

To avoid a Secondary Inspection, we advise all travelers to always be equipped with the appropriate documents and to apply for ESTA or the correct visa for entry. We would be happy to advise you on your USA plans.

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Enquiries to H-1B visa holders

Recently, there has been an increasing number of reports from H-1B visa workers about problems and the increased scrutiny when entering the USA.

Since the Presidential Executive Order to strengthen the "Buy American, Hire American" agenda, H-1B visa holders in particular have been targeted by US border officials. And so the experience of foreign H-1B specialists in particular is accumulating. Strict controls, more intensive questioning at the border and even entry bans are becoming more common. Workers in the IT sector are particularly affected.

What can H-1B holders expect when entering the USA?

The US border officials have great freedom to decide whether to deny or deny entry to a US traveller. They are also entitled to demand more stringent controls at their own discretion. This includes intensive interrogations and, if deemed necessary, searching electronic equipment.

These controls apply to all text messages, calls, emails, social media entries and other documents. A targeted search is made for discrepancies, misrepresentations or inconsistencies in connection with the activity sought in the USA. For H-1B holders, this may include information about the place of employment, salary, other payments or the employer-employee relationship.
If the suspicions cannot be disproved or further discrepancies are revealed, this can have disastrous consequences. In recent months, many a H-1B visa holder has been refused entry because of such suspicions.

Another method of border control is the checking of the curriculum vitae. The contents are screened for exaggerations or false statements.
If questionable or weak CVs cannot be reconstructed or corroborated, the traveller could be accused of fraud. Similarly, if the personal resume does not fit exactly with the job description described in the H-1B petition, it is not possible for the H-1B petition to be considered as a job description. Any suspicion of fraud or exploitation of a visa category may result in border rejection or even withdrawal of a visa.

Consequences of MISPRESENTATIONS and misinterpretations

Unfortunately, there are also known cases where H-1B professionals have been victims of misunderstanding and misinterpretation. Particularly in the IT industry, references in CVs are often accompanied by details of (among others, American) customers and their company headquarters. However, the IT consultants themselves are based in their home country or outside the USA during the project. For US border officials, however, the information provided by American customers in the past has been a reason to believe that some professionals have worked illegally in the US or, conversely, that a CV has been deliberately filled with exaggerations.

The "Buy American, Hire American" agenda is thus also a clear signpost for border officials and forms the basis for their increased controls.

H-1B holders should prepare themselves well for entry into the USA due to what happened at the border and be aware of the contents of your petition. Care should be taken to ensure that any equipment or documents and contents carried on board do not give rise to suspicion or misunderstanding.