2016–The Year in Immigration

By | DACA, DAPA, H1-B, Immigration Policy, Immigration Reform, Uncategorized | No Comments

Around this time of the year, as we say good bye to a year, it is customary to look back and review the events of the year. In Immigration law, there was very little if anything that was accomplished. No new laws were passed; in fact the Congress has not passed any new laws on Immigration for the last 16 years. The EB-5 Investment visa created by Congress in 1990 was about to end. The Congress extended it as is. If the Congress does nothing in the next session, that program might die. However it is interesting to note, that Donald Trump’s son in law is in charge of several EB-5 program, and several Trump hotels were built with EB-5 money.
Parts of President Obama’s executive actions, which was challenged by Texas, namely those dealing with parents of undocumented aliens, and expansion of the Dream Act was in effect denied by the Supreme Court. After Justice Scalia’s death, the Supreme Court, consisting of 8 members, deadlocked and thus, the US District Judge’s injunction against these measures became valid. The question of expanding DACA (the Dream Act) and DAPA (granting work permits to parents of the Dreamers) is for the time being, dead. Given Donald Trump’s campaign rhetoric, it is not expected to pass, especially with this same legislature.
The Provisional waivers were made a little easier. They are for:
1. Immigrants who entered without inspection,
2. have near relatives that are US citizens,
3. and these relatives will suffer if the person is deported. Therefore the Citizenship and Immigration Service will waive the fact that they entered without inspection (a civil offense), stop deportation and give them the Green Card (Permanent Resident Card).
Will there be comprehensive Immigration Reform in 2017? If I had to bet, I would bet no.

Please call Banerjee & Associates for more information

Suggested Reforms for H-1B and L-1

By | Citizenship and Naturalization, Commentary, H1-B, Immigration Policy, Immigration Reform, L-1, Uncategorized | No Comments

Let’s face it, like many other Trump promises, the ten point Immigration plan is not going to happen. There’s not going to be a wall, not going to be selective Immigration from certain countries, not going to be a Muslim registration. Why? Because we cannot go back 2000 years when China was building walls.
As an Attorney practicing Immigration law for over 20 years, I have some suggestions for Business Immigration Reforms.
I will confine this blog to reforms in the H-1B and L-1 categories.
First and foremost, we need to overhaul our entire Immigration system. However, Immigration and Health Care is too huge to overhaul in one step. It should be done in baby steps.
For Immigration, we should start with Business Immigration first. This is because both Democrats and Republicans agree on most of the issues.

H-1B:
Eliminate the quota, but become stricter on enforcement. Make employers PROVE that the job is there, and it is real. Make site visits mandatory where the Sponsor has less than 200 employees. If an H-1B employee lose his job, he will get an automatic 6 months to stay in the US. After that time, if he has found no jobs, he has to leave. He can also switch to a dependent visa like H-4, but cannot switch to a student visa (F-1), without going back to the home country. If an Employer is found to have changed the resumes of the Employee in order to get a job for that employee, then both the Employer and the Employee will be barred from future filings for 5 years. The Employee will never be given the chance to adjust status through employment and will be deportable.

L-1A:
Focus more on viability and less on job description. If a Japanese restaurant owner has to oversee cooks and waiters who are not “Professional” employees, it’s no big deal. What matters is, is the restaurant viable? Is it making money, and will it survive? If a large multinational, foreign Company, (for instance let’s say Suzuki) wants a small office in the US, which coordinates their North American business, then they should be allowed to have an L-1. Even though they may not be creating US jobs, the fact that they are doing business means that they are helping US population in some way. When the time comes for the Company to grow in the US, they will grow. But by denying them the right to have a small office, we will actually drive business to Canada or Mexico. Whether the manager is managing a function, or doing full time managerial job is immaterial. Good managers do everything. If you are the CEO of a profitable company, you can clean a room, if it looks bad, and you have the time. It won’t kill you.

L-1B:
The focus should be on the technical aspect, and not so much on the proprietary aspect. We have a shortage of technical people in the US. So even though it’s fair to say that the job has to be proprietary to the Company, the focus should be on whether the Employer can get anyone in the US to do the job with some training. If the Company is viable and profitable, then we should let the Company prosper with their L-1B candidates. After all, they will pay US taxes.

For more information contact Banerjee & Associates

EAD Extensions

By | Commentary, Immigration Policy, Uncategorized | No Comments

A common pitfall for Employment Authorization Document Card is that

  1. The Employee applies.
  2. The Citizenship and Immigration Service takes a long time to adjudicate the application
  3. The Employment Authorization Document expires
  4. The Employee cannot work legally after this day, and loses the job.

I have had individuals leave the country on this issue. There is no way to expedite this, and although Citizenship and Immigration Service is required, by regulation to adjudicate the card within 90 days, sometimes that does not happen.  Understandably, the Citizenship and Immigration Service is inundated by large volumes of Employment Authorization Document Extensions.  Nationals from India and China have long wait lines before they get their Green Card (Permanent Resident Card), so they need to renew their cards frequently.  The same is true for DACA, TPS etc.

This problem has been solved by the recently enacted changes to the Immigration code.  Enacted on November 18, 20165, it goes into effect on January 17, 2017, 8 CFR § 274a. 12 (c) (35-36) states that due to “compelling circumstances” Employment Authorization Document will be extended for 180 days if:

  1. The individual files a request to renew his Employment Authorization Document prior to the expiration date
  2. The individual is requesting an extension under the same category as before, for example DACA, I-485 pending, TPS, Dependent visas, like H-4, L-2, or J2.
  3. However, the underlying status needs to be valid. This means for example if someone is divorced and does not have the H-4 or L-2 status anymore, then this provision does not apply

The receipt notice of the Employment Authorization Document serves as proof of such extension for 180 days

Hopefully the Citizenship and Immigration Service will adjudicate these cases by 180 days

 

Please call Banerjee & Associates for more information