H-1B lottery

By | CIS, Commentary, H1-B, Immigration Policy | No Comments

Every year as winter starts to fade into spring, the Citizenship and Immigration Service receives thousands of petitions for H-1B visas. 236 thousand petitions last year to be precise. H-1B visas are used by US Employers to get highly qualified professionals, mainly in Science and Computer fields, from other countries. The Congress has imposed a quota on new H-1B visas of 65K every year (plus 20 K for US Master’s Degree holders). So every year in mid-April, the Citizenship and Immigration Service does a lottery and only the lucky 65K + 20 K get in.

The chances of getting into the lottery in 2016 is a little more than one in three. As our country grows, its needs grow resulting in more and more petitions and less chances for petitions to be selected. If an attorney prepares the H-1B file, the employer loses the attorney’s fees if they do not get into the lottery. Thus big companies like Google, Facebook, Microsoft and other Silicon Valley Billion dollar company can afford to lose money and file thousands of petitions every year. Google for instance filed 9280 petitions last year. That’s like buying 9280 lottery tickets rather than one that the small employer can afford. And although the lottery probably is random, the probability for winning it is higher if you buy more lottery tickets. And yes, we business Immigration attorneys earn a lot of money during that process as well.
The Citizenship and Immigration Service always maintained that the lottery process was fair. However, two companies in Portland Oregon—-Tenrec Inc. and Walker Macy LLC has filed a lawsuit against the Citizenship and Immigration Service to make the lottery process more transparent. A federal judge has ruled that the plaintiffs have standing to sue. What the plaintiffs’ are asking for though, is to not close the accepting of Petitions for the first 5 business days in April, but prolong it year long. That might actually be worse in creating log jams and increasing processing times for H-1B petitions. And American Immigration Lawyer’s Association has also filed a FOIA suit to make the lottery process more transparent.
Although greater transparency is desired from any Governmental organization, mere transparency will not solve the H-1B problem. The market place works on a supply and demand theory. The artificial quota system demands that employers project their need in the beginning of the year, think about the lottery and apply as many petitions as possible. Similarly highly educated tech employees in India and elsewhere seek out employers and in many cases pay them to file their cases. But doing away with the quota requires a Congressional Act, and as we all know, Congress does not act.

For more information call Banerjee& Associates.

US Citizenship

By | Citizenship and Naturalization, Commentary | No Comments

Today the United States Constitution was signed into existence by our Founding Fathers. Thus Sept 17 is celebrated at Constitution Day and Citizenship Day. But what does American Citizenship mean? American Citizenship, like citizenship in most countries is a bunch of rights and obligations, derived from the Constitution to people who are subject to the jurisdiction of the United States. USA ensures that the people are protected and lead a happy life. The citizens elect the Government to run the State, and serve in the jury.
Citizenship in the United States is derived either through birth or by Naturalization, when one lives a certain length of time in the United States as a legal permanent resident. Naturalized citizen have to take a test of English and knowledge of Civics, and prove that they have good moral character.
Yet USA is a nation of Immigrants. As each wave of Immigrants came into this country, they settled down and became Americans. They developed a deep nationalism, and looked down upon the next wave of Immigrants. We have had waves of Germans, Irish, Italians, Asians, and South Americans. Each wave blaming the next for being “un-American”. Yet the general population has been very accepting of immigrants and they have assimilated quickly. Unlike countries like Canada and Europe who have the mosaic system, United States’ Melting Pot system creates better assimilation and a sense of nationalism among immigrants.
Citizenship also comes saddled with popular notions of patriotism. If someone does not stand up for the national anthem, someone protest a flag, are they being unpatriotic and hence not a worthy citizen? Similarly, a large group of people think that good citizens need to speak English and eat hot dogs and apple pie to be “real” Americans. And good citizen in that notion is completely subjective. It’s your own to make, whether it’s the notion of protecting the liberty that’s guaranteed by the Government, or whether as some put it, their forefathers have died for the country, the flag and the anthem.
For more information contact Banerjee & Associates

Entrepreneurs Visa

By | Commentary, Immigration Policy | No Comments

In 2014, President Obama issued an Executive order making it easy for Entrepreneurs to get visas. However until this past Friday, the Citizenship and Immigration Service (hereinafter CIS) did not issue any guidance as to how this could be achieved. For instance, a computer science major foreign student, studying in the USA, might come up with an idea that would revolutionize current thinking. They might want to build a startup. Right now the only option is an H-1B visa, which is restricted to only 65,000 per year and subject to a lottery. But even if an entrepreneur manages to win that lottery number, the CIS will frown upon the fact that the entrepreneur will own the company that is petitioning for him. They also want the US entity to show capital to demonstrate the ability to pay the Entrepreneur/Employee the proposed H-1B salary. The problem is that banks/venture capitalists won’t lend capital to an entrepreneur without legal status. So it’s a catch 22 situation that doesn’t work.
Under this proposed rule, DHS may parole, on a case-by-case basis, eligible entrepreneurs of startup enterprises:

Who have a significant ownership interest in the startup (at least 15 percent) and have an active and central role to its operations;
Whose startup was formed in the United States within the past three years; and
Whose startup has substantial and demonstrated potential for rapid business growth and job creation, as evidenced by:
Receiving significant investment of capital (at least $345,000) from certain qualified U.S. investors with established records of successful investments;
Receiving significant awards or grants (at least $100,000) from certain federal, state or local government entities; or
Partially satisfying one or both of the above criteria in addition to other reliable and compelling evidence of the startup entity’s substantial potential for rapid growth and job creation.

Under the proposed rule, entrepreneurs may be granted an initial stay of up to two years to oversee and grow their startup entity in the United States. A subsequent request for re-parole (for up to three additional years) would be considered only if the entrepreneur and the startup entity continue to provide a significant public benefit as evidenced by substantial increases in capital investment, revenue or job creation. The notice of proposed rulemaking in the Federal Register invites public comment for 45 days, after which USCIS will address the comments received.

Note:
1. The proposed rule does not take into effect immediately. It typically takes the Government quite a few months after the comment period to adopt the rule. I personally don’t think this will happen before 2017
2. The rule does not grant permanent status as of now. It just gives temporary stay of up to 5 years
3. Both the Democrats and the Republicans support this rule.
4. This would have been law, due to bipartisan support, but the Democrats wanted “Comprehensive” Reform and not the piecemeal legislation
5. Thus I expect this rule to continue no matter who our next President is.

For more information contact Annie Banerjee

When Natural Disasters happen

By | CIS, Commentary, Immigration Policy | No Comments

The Government works with deadlines. Unlike State Court where lawyers can argue that they are not ready and reset the date of their hearing, we attorneys working with federal agencies have to such leverage. We are given an audit notice by the Department of Labor, and we have to answer in 20 days. No matter if your mother dies, or you have a tragedy. Unlike State court lawyers, we also cannot take holidays, unless some other lawyer covers us.
So what happens when there is an act of nature? I had to file a request for evidence for a case when Hurricane Rita caused Houston to shut down and flee town. I took my fedex envelops with me on a 10 hour journey to Austin, and mailed them from there. However, recently, with major hurricanes, floodings, etc, the Citizenship and Immigration Services issues guidelines. With the advent of websites to contact the Government is relatively easy. However, one will still need the receipt number to communicate with the Government.
When forces of nature happen, the Government offices are immediately closed and appointments are rescheduled. However, the lawyer and the clients are still left with the burden of answering and filing.
With the heavy rains paralyzing Baton Rouge, these are the guidelines from Citizenship and Immigration Services.
USCIS offers immigration relief measures that may help people affected by unforeseen circumstances, such as disasters like the recent severe storms and flooding in Louisiana.
These measures may be available upon request:
• Change of nonimmigrant status or extension of nonimmigrant stay for an individual currently in the United States, even if the request is filed after the authorized period of admission has expired;
• Re-parole of individuals previously granted parole by USCIS;
• Expedited processing of advance parole requests;
• Expedited adjudication of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship;
• Expedited adjudication of employment authorization applications, where appropriate;
• Consideration of fee waivers due to an inability to pay;
• Assistance for those who received a Request for Evidence or a Notice of Intent to Deny but were unable to appear for an interview, submit evidence or respond in a timely manner;
• Replacement of lost or damaged immigration or travel documents issued by USCIS, such as a Permanent Resident Card (Green Card);
• Rescheduling of a biometrics appointment.
Note: When making a request, please explain how the severe storms or flooding created a need for the requested relief.
However, to contact the Citizenship and Immigration Services, you will still need the receipt number. If any lawyer’s office is flooded, I hope the Government will understand. Global warming will cause more and more natural disasters every year. A humane Government agency will be appreciated. On the other hand, a lawyer should save important documents in the cloud for easier access.

For more information please contact Immigration Lawyer, Annie Banerjee in Houston

[footer block_id=’902′]

 

Buying the American Dream—The EB-5 visa

By | Commentary, Houston Immigration, Immigration Policy, Visa | No Comments

EB-5 Job creation and money in US

 

I know Trump makes for a great opening line in any blog, so I will start with Trump.  Trump criticized Mr. Khan, the Gold Star parent by saying that Khan, a lawyer took money from Muslims so that they could buy their citizenship.  What he was referring to is the EB-5 investor visa program which is controversial.  But before I go into any details, let me say that Trump used EB-5 foreign money to build his luxury rental apartments in New Jersey called Trump Bay Towers.

 

The EB-5 is a program where investors can invest 1 million USD (or $500,000 in underdeveloped areas) and create at least 10 jobs.

The funds have to be obtained “lawfully” and USCIS traces the source of the funds meticulously.  If for instance, one inherits a property and sells it to obtain funds, the Citizenship and Immigration Service will demand that one traces the source of funds used by the buyer to buy the property.  This requirement is very strict

The investors have to put the funds “at risk”.  That means that the investor has to invest the money into a for profit, new venture. Very often, people invest in “regional Centers”—- businesses which pool a lot of these investment and build a new project.  However they create very little interest, and the money is tied up for about 10 years.  The interest is not enough to be able to live in the US

 

Over the years investors in this program have invested billions of dollars and have created thousands of jobs.  So why is this program criticized?  .  The problem with this program is not what Mr. Trump thinks, Muslims bringing in illegal money.

 

The problem is China.  90% of the individuals and capital come from China.  At first it would seem that China sells so much goods to us, that it is wonderful for them to invest capital in the US.  But PRC is not a free country, and that’s the problem.  Ordinarily PRC does not allow money to be brought outside the country. However, it turns a blind eye to the EB-5 program.  The investors do not directly find investment opportunities in the USA. China has state run brokers who liaise with owners of Regional Centers in the US. So these state run brokerage have access to how real estate is done in the US. They also have access to computer files.  They also can invest and control flow of capital in strategic areas.  Some have criticized that China is using economic, information and technological “warfare” with us through this EB-5 program.

The program expires on September 30th, 2016. But my guess is that this Congress will simply extend the program for one year, and let this be the problem of the new administration.

 

For more information, contact Houston Immigration Lawyer, Annie Banerjee

H-1B fraud solutions

By | Commentary, H1-B, Immigration Policy, Visa | No Comments

The H-1B program has been coming under attack lately. Ted Cruz wants to put a moratorium on H-1B visa. That seems to be the Republican solution to every crisis—-stop it and put your head under the sand, and the problem will go away. Is there fraud in the H-1B program? Yes. But the way to stop it is not through a moratorium. Assuming that most frauds in the H-1B visa is perpetrated by the computer consulting industry, this blog will deal primarily with the problems pertaining to that industry.

H-1B is the visa classification given to Professional employees to come work in US Companies. Although all types of professions use this visa, the vast majority of these visas are used by computer consulting companies for computer professionals. The end user is the place that the computer professional will actually work. Usually these are big companies. These companies contract out their work, and sometimes the intermediary companies enter into contracts with others. Thus very often the company employing the H-1B worker has one or more intermediaries between them and the end client. The petitioning consulting companies (hereinafter petitioner) often change the employees resumes to suit a job, although the employee may not have that skill. This can be stopped if the end client can have a testing requirement to before accepting someone for the job. Initially it will be a burden to devise these tests, but then, that will ensure that their work is done in an efficient way.

But the real problem is that there is a quota of 65,000 visas per year for H-1Bs (plus 20K for those who have US Masters) and there are more than 233,000 petitions filed on the first day in 2015. So the Citizenship and Immigration Service does a random lottery and the lucky 85 K get in. Then the Citizenship and Immigration Service takes a long time to adjudicate these cases, and often it’s January of the following year that the employee can get in and start working Thus employers have to calculate their need and apply with projected rather than actual figure. Since these visas lead to Green Card (Permanent Resident Card), they are coveted by employees. Thus many employees seek employers to enter the lottery. The employees often pay money to the employers to enter the lottery, which is of course against the law. The employers then file for the H-1B lottery for these employees. By the time the employee can make it to the United States, the project that was originally applied for has already been completed.
Do H-1B employees take American jobs? Please note that the Government fees for H-1B is 1575 to 4325 USD- per individual. Add attorney’s fees to that. The Employer has to pay the employee at least the Prevailing Wage, which is often higher than local employees’ pay. And even if it’s the same wage for three years, its still the same as an American worker. But we do have computer science graduates in this country. They do not want to lead the lifestyle of the computer consultant. The computer consultant is like a travelling Computer guru, who moves from project to project. They may stay in Memphis for 6 months, followed by Iowa City for 3 mts, followed by Houston for 5 mts. You get the picture. They cannot have roots anywhere. If they have families, the family has to be positioned in some place, and they usually go back for the week end. But to make up for it, they work 12 hour days from Monday to Thursday. It’s just a hard life that Comp Sci grads from this country simply do not want.

Thus the solutions to these problems are:
1. Do away with the H-1B quota and let the market dictate need:
The market is a much better predictor of demand than an artificial quota. The quota forces employers to project their need for a whole year and file accordingly. It also creates uncertainly because of the lottery and creates artificial demand. Very often the petitioner just has one or two big project and file 20 cases, even though the need maybe 5. They hope that at least 5 people get picked. This of course leads to fraudulent practices. And there can be no guarantee which employee will be lucky enough to get in. Without the quota the optimally qualified available personnel, rather than the lucky personnel will get the job.

2. Create a system whereby the HR director of the end user has to verify the employment of the employee
The Department of Labor, to end fraud in the Labor Certification program established a system where the Company has to verify that the Labor certification is a real job that does exist in the Company. The Citizenship and Immigration service is testing an employer verification system. But they need to create a simple program whereby the system sends out an e mail asking if this job exist. The adjudication (which needs to be done fast) will proceed upon a yes answer. If the e mail is fraud, then the petitioner will be barred from using the H-1B program again, and the end user will pay a fine.

3. Do Away with Control and Simeio issues:
The Obama administration created complex and useless rules to curb H-1B fraud which do not work. In 2010, the Citizenship and Immigration Service issued a memo that said these professional employees need to be “controlled”. The Government tried to say that if the petitioner does not control the employee, then they are not the Employer. The Government then proceeded to introduce this requirement ONLY to the computer consulting industry, and not to the healthcare industry, which employ the same model. Just a simple e mail from the end user should suffice. The “control” issue goes into the business model of this industry, over which the Citizenship and Immigration Service does not have jurisdiction.

Similarly in a 2015 case, Simeio, the ruling was that if an H-1B employee changes job location, the employer has to file an H-1B petition. As mentioned above these H-1B employees change job locations very frequently. Thus the Immigration Service is inundated with the H-1B petitions. The Government is taking almost a year to adjudicate these petitions. By then the employee has moved three times, making the adjudication of two of these petitions moot and a waste of time.
These two measures are quixotic and serve no purpose other than to harass employers and make attorneys rich. In order to curb fraud, the system should be made simple, hassle free and fast to keep pace with the for profit industry. Otherwise the Immigration code will quickly grow into something like the tax code, complex and filled with loop holes.

For more information contact Houston Immigration attorney, Annie Banerjee

H-1B Amendment-Simieio

By | Commentary | No Comments

You graduate with a Master’s Degree in Computer Science form an US University. You find a job with a Computer Consulting Company. You applied for the H-1B quota and got selected in the lottery with only 25-35% chance. You got your H-1B, applying on March 31 for the job to start in October. You join the job in October in Houston, but your employer finds a better job for you in New York. You are glad to go, you get more money, and well, NYC is more fun to live in. Actually you think as soon as this job finishes, you will get a job somewhere else, maybe in the mid west. What a wonderful way to experience America.
And then In the Matter of Simeio came out and Citizenship and Immigration Service will now require every change in location out of a Metropolitan Statistical Area, your employer will have to file an amended H-1B instead of just another Labor Condition Application, as was the procedure before.
Facts of the Case

Bad facts make bad law. And Citizenship and Immigration Service loves bad law. Employer filed H-1B and Labor Condition Application for an In House project with an address in Long Beach, CA for $50,232/- Employer moves employee to a third party location in Camarillo CA and Hoboken, NJ. Employer files new Labor Condition Application, but not an H-1B amendment. These placements were not short term placements. The Citizenship and Immigration Service’s audit found the initial H-1B address is actually a home address. The question that the Administrative Appeals Office (AAO) decided is whether a change of location to a new Metropolitan Statistical Area (MSA) constituted a “Material Change” requiring the employer to file an amendment.

THE DECISION:

In a precedent decision the AAO held that a change of location to a new metropolitan area, requiring 9000 USD more yearly, is a material change. They based it on three grounds:

1. Apparently the original Labor Condition Application was 9000 yearly less, and that was huge to the AAO.
2. The change in location to another place in the USA was MATERIAL
3. The original petition does not have this new itinerary

GRIPE:

Time used to be when people traveled an entire day in carriages to travel 50 miles. Time used to be when 9K used to mean a lot. These were material changes. But this is the 21 C. We work at the speed of light.

The REAL reason why filing the Amendment is controversial: In 2010, Citizenship and Immigration Service came out with a memo imposing stupid requirements that these professional has to be controlled. Then the ex-congressman who actually proposed the H-1B regulation told them Congress had no intent to control H-1B employees. This Congressman is now an immigration attorney representing the health care industry. So Citizenship and Immigration Service still uses the control memo, but selectively applies it only for the Computer Consulting Industry.

Disney said it’s a small world in 1964. Since then, we have invented the net, Facebook, Twitter, etc etc. Yet the Labor Condition Application gives you only 3 locations that one can work from. I can completely understand that the Department of Labor has a responsibility to not have employers hire H-1B employees (at 65K people annually, really?) and pay them less than Americans. But if the pay is in 6 figures, it should meet the criteria in all of United States. Before you require employers to file amendments, costing them attorney’s fees, why can you not have a Labor Condition Application option that covers The ENITRE U S of A?

Please contact Houston Immigration Attorney , Annie Banerjee for more information

H-4 Work Permit

By | Commentary | No Comments
  1. Who can get the work permit?

Spouses of H-1B. The H-1B individual needs to have: (1) and Approved I-140 and (2) Maintain his or her H-1B status.

 

The H-4 person needs to also maintain his or her H-4 status

 

So this is not spouses for recent arrivals who just has H-1B and has not started the Green Card (Permanent Resident Card) process yet.  Note L-2 can apply for work permit immediately upon entry into the US.

 

  1. When can the H-4 apply ?

 

Starting from May 26, 2015.  Citizenship and Immigration Service will reject applications filed before this date.

 

  1. Is this a sure thing?

This is under the Executive Action which is being currently challenged in Court. So this is not 100% sure. To date Citizenship and Immigration Service has not released any new forms or regulations

 

  1. Documents: These would probably be the necessary documents
    1. Copy of marriage certificate (with English translation)
    2. Copy of children’s birth certificate, if any
    3. Copy of H-4 approval and/or Visa page
    4. Copy of H-1B spouse’s H-1B approval
    5. Copy of H-1B spouses I-140 approval
    6. Three Recent paystubs of H-1B spouse
    7. Two passport size pictures of H-4 Employment Authorization Document applicant

 

Please contact Houston Immigration Attorney, Annie Banerjee for more details

Public Displeasure With Immigration Misses Benefits That Newcomers Bring

By | Immigration Policy, News & Press | No Comments

Polls have consistently shown that a majority of Americans are dissatisfied with the nation’s immigration levels. A majority of those who are dissatisfied call for a decrease in immigration levels. Concerns over immigration levels in the United States usually focus on the purported negative impact immigrants have on the nation’s labor market and entitlement programs. Plenty of evidence, however, points to the exact opposite reality.

The latest Gallup Poll shows that 60 percent of Americans are dissatisfied with immigration levels in this country. That figure is up six percentage points from 2014, but lower than the high-water mark of 72 percent, which was set in 2008.

The timing of the record dissatisfaction level is telling. In 2008, the nation sank into its worst recession since the Great Depression, with unemployment swelling, businesses failing and a swooning stock market battering retirement savings. As a result, advocates for reduced immigration frequently repeat that immigrants (supposedly) flood a weak labor market and thus make it harder for Americans to find work. They also claim that immigration booms depress wages, and that immigrants lean heavily on social services such as welfare.

There may be a limited truth to effects on the labor market and social services, but the impact is decidedly short-term. The longer-term impact of cutting immigration levels would be much greater — and overwhelmingly negative. According to the White House, the U.S. economy would lose $80 billion in economic output, the nation’s deficits would grow by $40 billion over the next 10 years, and the Social Security Trust Fund would be shortchanged $50 billion if the estimated 11 million undocumented immigrants are not granted a path to citizenship.

By contrast, a 2013 Center for American Progress study concluded that providing legal status to undocumented immigrants living in the United States would increase the gross domestic product by $832 billion over 10 years. In addition, researchers predicted that the total personal income of all Americans would increase by $470 billion during the same period.

Especially now that the U.S. economy has revived, with unemployment levels dropping to pre-recession levels, the increasing demand for labor has not always been satisfied. The agricultural sector, with its heavy reliance on immigrant farm workers, and the technology sector, with its demand for highly skilled foreign-born workers, are two notably hard-hit industries.

But perhaps the biggest argument for immigration concerns the long-term need to keep the nation’s entitlement programs financially sound. A shrinking labor pool is bad enough, but one that is aging at the same time is even worse. The U.S. population itself is aging, but the nation has been very good at attracting young immigrants to help balance the labor market, to increase payments to entitlement programs such as Social Security and to keep retirement ages from being raised even more than they already have been.

[footer block_id=’902′]

In Wake of Executive Action, Focus Falls on Arrests for Immigration Offenses

By | Immigration Policy, News & Press | No Comments

In November, President Obama announced that he was taking executive action to defer the deportation of millions of undocumented immigrants. His decision may have set a new direction for immigration policy in the United States. And if it is allowed to stand, it will be interesting to see how the president’s measures impacts federal law enforcement efforts to deal with immigration offenses.

Judging by the most recent available statistics, any departure from current policy on deportations would be significant. The latest Justice Department analysis shows that immigration offenses made up almost exactly half of all federal arrests made in 2012. More specifically, out of a total of 172,248 suspects who were arrested for a federal offense, 85,458 (or 49.6 percent) were booked for immigration offenses, such as illegal entry, illegal re-entry, alien smuggling and visa fraud.

The newest, preliminary data suggest that the pace of arrests did not slow in either 2013 or 2014. Indeed, the newer figures show that arrests for illegal entry and illegal re-entry picked up over the last two years. The number of arrests for immigration offenses have been on a steady upward trajectory since 8,777 federal immigration arrests were recorded in 1994. And the previous high was set in 2009, when 84,749 people were booked.

According to the philosophy that the White House shared when the president announced his executive action on immigration, the administration would be targeting “felons, not families” for deportation, shielding up to five million undocumented immigrants from an expedited exit from the United States. And it is probably safe to say that those who would be considered families are heavily concentrated among the 60 percent of undocumented immigrants who have been in the United States for 10 years or longer.

If put into action, the decision to defer deportations could translate into a measurable drop in federal convictions. Immigration offenses have fueled the bulk of growth in the total number of felons sentenced in courts — 48 percent, as opposed to the second leading contributing factor, convictions for drug offenses, which were responsible for 22 percent of the growth.

But a significant drop in in the number of deportation proceedings could have perhaps its biggest and most beneficial impact on the Treasury. Estimates claim that it costs $8,318 to deport an immigrant. Multiply that figure by the conservative number of four million undocumented immigrants whose deportation would be deferred under the president’s measures, and one would be talking about some serious savings — $33.272 billion, to be exact.

And going one major step further, if none of the estimated 11 million undocumented immigrants were deported from the United States, the country would save $91.498 billion, which is quite a tidy sum, indeed.

[footer block_id=’902′]