Second Circuit Rules That No Suspicion Required before Customs and Border Protection Searches Cell Phones for U.S. Citizens, U.S. Permanent Residents and Other Non-Citizens

On September 17, 2026, the Court of Appeals for the Second Circuit issued a decision finding that no suspicion is required before the government searches a traveler’s cellphone at the border when entering the United States.  This ruling affects U.S. Citizens, U.S. permanent residents and any others entering the United States in New York, Connecticut and Vermont. The case, United States v. Alisigwe (decided September 17, 2026) indicates further that a manual check of a cellphone is permitted and may include reviewing text messages, call logs, photos, videos, browser history, financial apps, and location data.  The decision further states that officers are not required to be in possession of a warrant, probable cause or reasonable suspicion to look through a phone when presented with individuals seeking entry to the United States in these states.  Importantly, there is a split in the circuits on this issue, and whether reasonable suspicion or a warrant is required, and likely this case will be appealed to the Supreme Court.

The Administration Further Restricts the H-1B Visa Category

On September 18^th, The President issued another Executive Order renewing the H-1 $100,000.00 fee and ordering heightened scrutiny for the H-1B visa program.  This imposition of the $100,000 fee was imposed despite the current $100,000 fee, introduced a year ago, still being litigated in federal courts.  The Executive Order further instructed USCIS (U.S. Citizenship and Immigration Services) to scrutinize H1-B petitions for more information regarding layoffs inquiries into the H1-B filing process, despite the fact that the Immigration and Nationality Act and all H-1B regulations issued by USCIS to date have not carried any direct or indirect mandatory inquiries into layoffs. 

The Order further sets forth an interagency consultation process, instructing the Department of States, Labor and Homeland Security to coordinate with the Departments of Commerce and Education and the Small Business Administration to assess compliance with federal regulations affecting the H-1B visa petition submissions.  While the layoff and displacement inquiries are already in place for H-1B dependent employers or employers having been found to commit willful misrepresentations to the federal government, they have not affected the majority of H1-B businesses filing petitions with USCIS. 

The Order also directs the Department of Labor’s Wage and Hour Division to review data from previously filed labor condition applications, which employers must submit to the DOL before filing H-1B petitions with USCIS and in which employers certify that they will pay the required prevailing wage to the foreign national.

U.S. Employer Advice

It is expected that the Executive Order will be challenged in federal court as the statutory basis for the imposition of requiring employers to make formal certifications regarding layoffs.  In the interim, while the immigration agency publishes guidance, U.S. employers should expect questions regarding layoffs, anticipated layoffs and how they might affect a potential hire’s eligibility for H-1B status in a particular occupation, metropolitan statistical area and for others similarly situated.

Employers should also anticipate the tightening of the H-1B rules, generally, reduced flexibility for grace periods, higher filing fees, restrictions for H-4 dependent visa holders granted employment authorization eligibility, further restrictions for TPS beneficiaries, and shortened response to requests for evidence from USCIS and other limitations.  Historically, USCIS has always been troubled by H-1B third-party placements. We expect further restrictions in this area.  As well, it is likely that USCIS will further scrutinize the educational background of foreign nationals and how they correspond to the job duties.  We also expect to see further inconsistent discretionary decisions from individual immigration examiners at the various USCIS Service Centers.

FOR MORE INFORMATION

The Business & Corporate Immigration practice at Tarter Krinsky & Drogin will continue to follow this update closely. If you have any questions or would like to discuss, please reach out to a member of our team.