Immigration Challenges Facing Employers Today: What You Need to Know

Gina Rubel: Welcome to this week’s episode of On Record PR, where we dive into the topics and strategies that matter most to law firm leaders. I’m Gina Rubel. I’m the CEO and General Counsel of Furia Rubel Communications, and I am joined by immigration attorney and friend, Wendy Castor Hess. Hi, Wendy.

Wendy Castor Hess: Hi, Gina. Thank you so much for the opportunity to spend this time with you today.

Gina Rubel: Well, I know how busy you have been, so I have to thank you for joining us today. Would you tell our audience and listeners what firm you’re with?

Wendy Castor Hess: I’m a partner with the immigration law firm of Landau, Hess, Simon, Choi & Doebley, located in Philadelphia.

Gina Rubel: Okay, and how about a brief intro and overview of what you do at the firm?

Wendy Castor Hess: I’m a partner. We only do immigration. The bulk of our practice is corporate immigration, representing universities, pharma companies, medical institutions of all types of businesses, family-based, but we also have an arm of our firm that does litigation.

Gina Rubel: It’s an interesting time for all of us. While we’re not going to talk a lot about politics, I do want to talk about what our listeners are asking. I’d like to start by asking you what the state of US immigration policy is regarding travel in and out of the United States for visitors, visa holders, and green card holders, whether they be corporate or not.

Wendy Castor Hess: That’s such an important question at this point, Gina. Yesterday, one of my associates and I spent the entire day at a university, and we spoke to faculty, students, admin, and members of the community who were ex-graduates of that school. Plus, this is what I’ve been living and breathing since January 20th; the state of travel into the US is distressing and alarming. Those are probably the best words that I can choose at this particular time. Each one of the categories that you’ve mentioned has very different rules that apply to each, so we’ll divide them for a moment into non-immigrant and immigrant. A non-immigrant is a tourist. A non-immigrant is a student. A non-immigrant is a resident physician who is coming to pursue graduate medical training in the US.

A green card holder is somebody who is allowed to be here forever. Non-immigrants are supposed to leave at a certain point. So, in each category, different things happen. We’re having extreme vetting. We always had vetting at the border. When I refer to the border, I am referring to ports of entry. That means land from Canada, land from Mexico, arriving in an airport where you’re met by Customs and Border Protection. And let me be really clear about this, I am a strong believer in strong borders. I am a strong believer in the rule of law. I am a strong believer in having people who belong in this country come to this country to work, to visit, to avail themselves of the excellent educational opportunities we have for all of those people to come here, because that is the reason for coming here. So I believe in border enforcement. Now, my footnote to that, or my caveat to that, is some of the things we’re seeing are very worrying.

For example, but correct, somebody comes to the border to say, I’m coming to visit. However, visitors’ visas are to visit, not to work. And I’m sure all of the people listening to your podcast, and the one in which I am now invited to participate in today, have heard horror stories about what’s happening at the border. Keep in mind, this is not everybody. But sometimes people are coming in, and this was a pre-current administration, who are coming in on the incorrect visa. They’re coming in with the idea that they’re going to work, but they don’t have a working visa. Rightfully so, Customs and Border Protection must turn them around, and should turn them around. What we’re hearing, however, is that prior to January 20th, oftentimes when people came into the United States on the wrong visa, on a visiting visa, rather than a working visa, they were allowed the opportunity to do something about it. Which is to withdraw their application for admission to the US, and they were not detained. Oftentimes, it’s a simple misunderstanding of the law. Sometimes it isn’t, but it appears that there’s been much tougher enforcement of that.

There have been memos circulated through the Department of State, under something which is called Protecting the United States from Foreign Terrorists and Other National Security and Public Safety Threats, which is an executive order published on January 20, 2025, which is now stating that individuals who come in should be subjected to much, much more extensive vetting than before. This is where we’re getting our foreign students caught. This is where we’re getting our doctors caught. This is where we have most recently in Dearborn. I think it was this past weekend, an attorney representing one of the individuals engaging in a protest on a campus in Michigan, who was an F-1 student, meaning coming here to study. That particular U.S. citizen attorney was detained, and their social media apparatus, their laptop, and their iPhone were all seized. When he asked to have everything returned to him, there was an issue with that. And he basically said, according to what the media has reported, well, I’m just a civil rights attorney. I’m not one of the big guys. I’m not one of these big law firms. And he ultimately got his apparatus back. But that is very chilling, to know. I don’t know if you have heard of that.

Gina Rubel: I didn’t hear about that one. I’ve heard a lot, and so one thing I don’t want to forget is to ask you if you would send me the link to that particular executive order. I want to make sure I put it in our show notes for our listeners. What I believe is a summary to answer the first question is that it really depends on your reason for coming to the US, and what kind of visa you’re getting. You do need to, and we’re going to get to practical advice at the end. I don’t want to do all that just yet. Yes, I’m keeping you listeners on the line, so that you get to hear all the practical stuff at the end. But, what are some of the most common challenges visitors face when traveling to the US? What’s happening at these points of entry?

Wendy Castor Hess: Well, what typically happens is that when you attempt to leave the airport or port of entry, you can be detained and put in what’s called secondary inspection, deferred inspection. So, the normal thing is, if you have ESTA (Electronic System for Travel Authorization), or if you are coming in, you stand at the little desk and the officer from Customs and Border Protection says, What are you here to do? And you say that, I’m here to visit the Statue of Liberty. I’m here to go to Longwood Gardens. I’m here to do something, or I’m taking my family to Disney World. But if you’ve been profiled, if, for some reason, that Customs and Border Protection Officer feels that you’re not really going to do that, that’s when you get your social media search, when you get your electronic devices seized, and when you get questioned. It’s happening more and more. Years and years ago, this used to happen when young women from Ireland were coming over to be au pairs without being on the J-1 au pair visa.

What was happening was that in those days, Customs and Border Protection was called INS (Immigration and Naturalization Service). There wasn’t Homeland Security at that point. They would open up the suitcases and find a letter that says, Oh, Susie, we can’t wait for you to take care of little Johnny. And then they’d say, home, you go. Because you are not here to tour the Statue of Liberty. You’re here to engage in employment. So now we don’t have the open suitcases, even though, of course, we can. Customs and Border Protection has the absolute right to open up suitcases and to search. But we’re substituting the electronic devices for the way to gather evidence to show who the individual is seeking entry, and that’s a really important point for me to stress. When you come to the United States, whether you’re a green card holder and you’re coming home to the states, or whether you’re a tourist, or a foreign student, each and every time you leave this country or seek entry, it’s a new entry. At that point, what you’ve done in the past can come back to bite you, such as a criminal record.

Gina Rubel: Are you saying that they don’t need a search warrant to go through your computer or your cell phone?

Wendy Castor Hess: Correct.

Gina Rubel: Okay, well, that’s something that I actually thought about. You know, I don’t do immigration law. I never did. So I thought, Oh, I’m sure they have to have a search warrant, but they don’t.

Wendy Castor Hess: I think what I have such a struggle with is that I’ve been a lawyer for many, many years, and I know we have a document called the Constitution. I know we have certain protected rights. But what I’m experiencing, and I don’t know the answer to, and hopefully, some people listening to this podcast know it better than I. There’s a big distinction between what the law is and the reality of what’s happening, and I don’t know which one is real. But I do know that this has happened.

Gina Rubel: Well, I think unfortunately that many of us in the legal community feel the same way. We’re not sure as to what’s happening or why. With that, I’m going to pause for a message from our sponsor, and we’ll come right back.

Gina Rubel: Welcome back, everyone. I’m Gina Rubel, and I’m joined by Wendy Castor Hess, who is talking about immigration law. You know it’s a really scary reality right now, with what you’re dealing with every day, with corporations who bring in people with certain expertise into the US to work for them and all the challenges that they’re facing, or that universities are facing with students and things like that. What are the reasons some visitors are being detained from entering the U.S., and how can those things be overcome or avoided?

Wendy Castor Hess: Well, as I mentioned before, a big thing is, and has always been, coming in on the inappropriate visa. For example, I had somebody with a clothing shop, a pop-up shop, and they wanted to come to Miami to do a pop-up, and they were coming from, let me just make up a country, let me say Norway. So, they were going to come to the States on a tourist visa with really cool clothing that I know my daughter would have absolutely adored. I was really excited as well. You know, maybe she’ll get to go and take a look at this cool clothing. I said to them, Well, what are you planning on doing? Oh, we’re going to come in and we’re going to sell the clothing. You’re not allowed to do that. You’re allowed to come to take orders, but you’re not allowed to sell. They’re all very, very important definitions of what is permissible activities, if you’re coming here to work and not to just attend meetings, but to go to different client sites. That’s not a permissible activity.

So you’re seeing a lot of that happening. What used to happen was that you hop on a plane from another country, do your pop-up shop, sell things, and go back. But not so anymore. The other thing, which is really what I think you’re getting at in this particular point, is people who have visas, are students, have been students for a long time, and leave to go home and see their family. That’s what being a student means: you’re supposed to go back. You’re supposed to have a non-immigrant intent. How do you manifest that while you go home and visit your family during school breaks? As parents, Gina, you and I very much like it when our children come and visit us. So those foreign students, their parents, equally so, would like their children to come home during breaks. But now something very new and very alarming is happening. Each and every time that a student seeks submission, they’re looked at again. Depending on what country they’re from, depending on what AI says, and the only way we can figure this out is somebody must have unleashed AI.

They’re being stopped. They’re being taken to that secondary inspection, to that deferred inspection, and they’re being asked questions. What countries did you go to? Were you in Afghanistan? Were you in Iran? Were you in Iraq? There’s a whole list of countries. Were you in Cuba? What were you doing there? Passports are examined. This was always done, but even more so. Next, were you involved? They don’t necessarily ask this question. But if you take a look at this, Protecting the United States from Foreign Terrorists and Other National Security and Public Safety Threats, it’s basically saying the US must be vigilant through the visa issuance process and admission. The US must identify them before their admission or entry. Remember, this is an entry into the US, and the US must ensure that admitted aliens and aliens otherwise already present in the US do not bear hostile attitudes towards its citizens, culture, government institutions or founding principles and do not advocate for aid or support designated foreign terrorists and other threats to our national security. That’s a heck of a very large mouthful without very many parameters. So we are seeing increased seizure of electronic equipment, increased questioning at the port of entry, and people turned around who the Customs and Border Protection Officer believes fall within this executive order. First time I’ve ever seen this in my life.

Gina Rubel: I don’t want people to be afraid to come to the U.S. We have great things here. There are many, many, many good people here. I have many friends who work for companies that are based in Canada, Mexico, or the UK, who work in their US subsidiaries. What I want to do is give them practical advice for traveling to the US about what they should be doing to avoid some of these issues popping up in the first place. We have a few minutes left, and I think this is a really good time to give our listeners some tips on things they can do to safeguard themselves, besides calling an immigration attorney.

Wendy Castor Hess: That was what I was going to start with, Gina.

Gina Rubel: Well, you can’t because you’re not on here to sell your own work.

Wendy Castor Hess: I am. At this point, I really feel that my job is to protect. My job is to make sure that people who have the absolute right to be here from other countries and who enrich America with their talents are able to come here. So the first thing is, if you’re working with a company, make sure that the visa they’re bringing you on with is good, that they’re working with Corporate Council, Immigration Council, and that the paperwork is there. You will have a little stamp inside your passport. Unless you’re Canadian, then you don’t have this visa stamp inside your passport. Make sure your passport is valid for at least six months.

Make sure when you enter the United States, you’re entering with the appropriate visa and it is valid. I have had clients who didn’t realize that when they’re trying to come in on April 12th, that their visa expired on April 9th. You have to check that. You have to make sure. If you have a visa for XYZ company to come in and perform computer services, or if you’re a physician, to work at XYZ hospital pursuant to one of the visas that allows you to work, each one will be company-specific. Don’t assume, have all of your original documents, have your educational documents, have the correct visa, and have pay stubs. Also, make sure, this is a biggie, that your LinkedIn matches what your attorney or your company lists. Because many times, some of my corporate clients or prior to them becoming my corporate immigration clients, they didn’t use counsel. They will say that Mr. So-and-So is a project manager, but on Mr. So-and-So’s LinkedIn, they say they are a junior architect. That alone, that discrepancy can be enough for somebody at Customs and Border Protection to say, Oh, wait a minute, this is not who you are. So they’re looking at social media.

Gina Rubel: So if you’re one of those people who don’t update your LinkedIn profile and haven’t updated it, you really need to do that if you’re planning to travel to the United States and you’re a noncitizen.

Wendy Castor Hess: Right. The other thing that I saw years ago, but it’s popping up now, is that we have people coming in, and their company did not tell them they needed a visa to come here. So on their laptop, they have their contract for the apartment that they’ve leased in Yardley, Pennsylvania, or somewhere in Rittenhouse Square, Pennsylvania, a one-year lease. And they also have information on how to transfer their dogs to the United States, but they’re coming to the port of entry, and they’re saying, Oh, I’m here to visit for a couple of weeks. No, that does not work. Once again, a search of social media. Then I had one client, pre-recently, but very important to even think of now, because it’s even more extreme vetting, where they put their change to a new employer on their LinkedIn, but they didn’t have permission in the US to work for this employer.

So, consistency. The other thing that I always tell my clients when I go ahead and prepare documents for them before they go to a council to apply for a visa, before they seek entry, is to read these documents. If they’re not correct, tell me. Let me amend them. Consistency, consistency, consistency. Don’t come to this country to get married tomorrow on a tourist visa. That, even if you don’t get caught initially by Customs and Border Protection, that’s going to come back to bite you. To go back to the point that you made, most people are coming in without incident. Those who are having problems are coming in on incorrect visas, or their social media is such that they fall within this January 2025 action, and they are being grilled and stopped from re-entering. I have not been a very happy camper, as far as my clients are concerned, because they’ve been asking me the question, Should I travel? The first thing I look at, since they’re all on the proper visas, I’ve checked that, is, tell me about your social media. What have you said? Maybe this is a year to visit North Carolina, Charleston, and experience all the bounties that the US has to offer.

Gina Rubel: Wow. So get off social media. Should they have emergency contacts here in the U.S.?

Wendy Castor Hess: They absolutely should, and that’s a really good point. Thank you for bringing that up, Gina. Back in the olden days, and when I refer to olden days, I refer to prior to January 20, 2025 –

Gina Rubel: Oh, so you’re not talking about the letter-writing days where letters would go by ship from Italy to Philadelphia?

Wendy Castor Hess: No, no, not those olden days. It was just 80-some days ago when I would have clients who had problems at the port of entry. Oftentimes, they were able to call me, or I was able to reach out to Customs and Border Protection. I do want to say that, you know, people are people. I have had, for the most part, and maybe I’ve been very lucky, especially with the people in Philadelphia, the Customs and Border Protection people in Philadelphia have been wonderful. I do want to put in a plug for this. I know we’re talking about having worried about rights and worrying about them being violated, but you have a lot of good people who are there, and they are trying to protect us from terrorism. However, sometimes, because of an ideology that has now taken over a bit, there’s a fine line between protection and overprotection, which is perhaps the best way that I can say that. What was your question again, Gina?

Gina Rubel: I asked you if they should have emergency contacts.

Wendy Castor Hess: Yes.

Gina Rubel: Can they not call you now?

Wendy Castor Hess: My big concern is that things are happening so quickly. One, they’re not going to be able to reach me. Two, they might be back on the next plane, and if a plane is not leaving that night, they might be detained and held.

Gina Rubel: Can they be detained without a phone call?

Wendy Castor Hess: That’s what we’re hearing. I’m afraid to say this, but I haven’t had any of those. I will tell you, if I have a moment, what’s happening now is the revocation of student visas for tons and tons of foreign students. They’re here, and they’re being told you have to leave, and if you don’t leave, we will do to you what we did to the Tufts student. We will come and we will get you. Then there’s a question of, do they litigate? It’s little things. This is another part. If I had a client who was arrested for a traffic accident or arrested for something small, I always said to carry a certified copy of their record of conviction or dismissal. In Pennsylvania, we have ARD (Accelerated Rehabilitative Disposition), which does not constitute last time I looked, a conviction. If I’m wrong, please, I want to be corrected.

I am terrified to let my ARD clients travel. What is happening to foreign students now? This just happened to a student who had a ticket for driving without a license three years back, who is graduating in a couple of months, or should be graduating. She really had her driver’s license, but she didn’t have it with her, so she paid for the ticket. She has now been told she has to go home, and her SEVIS, which is her F-1 student designation, has been revoked, and her license has been revoked. There are tiny arrests that do not render somebody inadmissible to the United States, and these arrests are now being used as part of this SEVIS termination. So when you come back in and seek re-entry, you can be shut down and turned around for this reason, for social media and any type of arrest, not even a conviction. It used to be only a conviction.

Gina Rubel: Wow. Well, I know we’re almost out of time, but I’m going to ask you one question, and if you choose not to answer it, that’s fine as well. But is there a particular port of entry that you would tell people not to go to?

Wendy Castor Hess: I know so much of this depends on who you get and when you get them. I know some of my colleagues in Buffalo say not to use this bridge. Use that bridge. But I don’t have a big upstate New York practice, and what I would say is standard for every port of entry: tell the truth. I’ll repeat that again. Tell the truth. If you’re telling the truth, your body language conveys to the Customs and Border Patrol inspector that you have nothing to fear. Of course, you’re afraid, but tell them you’re afraid. Say, what would you want, Officer? I’m happy to comply with whatever you want. This is my purpose in coming to the US. I believe in America. I believe in the rule of law, and I want to make sure that I do everything appropriately.

Gina Rubel: Which reminds me to just say that if the signs in immigration say, do not be on your cell phone, please do not be on your cell phone. I think that’s something that too many people take for granted and don’t realize that can be something to pull you right out of line and get you questions. With that, Wendy, I want to thank you for joining me today. I’m sure our listeners appreciate the information you’ve shared. I want to thank you, listeners, for tuning in. We welcome your feedback and questions at podcast@onrecordpr.com, and if you’ve enjoyed this episode, please consider leaving a review on iTunes. It really does help, and we’ll see you next week.

Wendy Castor Hess: And thank you, Gina.