H-1B and Computer Consulting Company

By | Business Immigration, CIS, Citizenship and Naturalization, H1-B, Uncategorized | No Comments

H-1B lottery is upon us again. This post will deal with some common Request for Evidences for H-1Bs for computer professionals.
Let’s start by saying that the government hates Computer Consulting Company, and they in turn do commit the most amount of fraud. But measures to shore up the H-1B should come from Congress. The Citizenship and Immigration Service as an agency cannot act on its own and impose restrictions that violate the rule of law. Add to that the fact that many senior managers at all agencies have quit, and officers are left to adjudicate on their own, giving birth to a disaster. There is no rhyme or reason why Citizenship and Immigration Service makes things up, and why officers adjudicate however way they feel like.
A couple of years ago, the Citizenship and Immigration Service decreed that the title of “Computer Programmer” is not a specialty one. Even though the requirement of a Computer professional is the same as Systems Analyst, software engineer, software developer. Now they don’t like Computer Programmer and Systems Analyst.
As many of you know, new H-1Bs are filed on March 31, to reach the Citizenship and Immigration Service office on April 1. The Citizenship and Immigration Service made an ultra vires declaration on March 31, 2017 that level 1 job for computer professionals, and computer professionals only, are not “Specialized” jobs. In 2010, Citizenship and Immigration Service had held that a petitioner must “control” employees. When challenged by an ex-Congressman, now an attorney who represent nurses and wrote the H-1B law, the Citizenship and Immigration Service selective applies this control doctrine only to Computer professionals.
The Citizenship and Immigration Service also routinely denies cases on the ground that the Computer job is “vague, non specific, and not specialized.” You can give them a 10 page detailed job description, they come back with form denials, which they copy and paste. How do officers judge that a certain job, which they presumably do not understand is “vague” ? Even with expert opinions, the Citizenship and Immigration Service claims, “we don’t have to take expert advice. We can tell that this is a vague description.” These officers earn less than computer professionals. Why they stick to their Government jobs is beyond me.
As I started by saying, there is fraud in the dealings of the computer consulting that has to be remedied. But this is not the way to do it. Because after all it is our freedom that the government guarantees in our Constitution. This will only lead to a slippery slope, whereby other agencies will also make law themselves, until we cease to be a democracy.

For more information contact Banerjee & Associates

Supreme Court Denies Trump Administration Expedited Appeal – Delays DACA Termination

By | CIS, DACA, Executive Order, Immigration, Immigration Reform, SCOTUS, trump | No Comments

Today, the Supreme Court denied the Trump administration’s request for an expedited judicial appeal, in an attempt to bypass the Ninth Circuit Court of Appeals while appealing a lower Federal District Court’s ruling that the Deferred Action for Childhood Arrivals (DACA) program must continue to accept renewal applications during the appeals process. What it means is that the Supreme Court wants DACA to wind its way through the legal process before tackling this issue. We predict that it will take at least 1.5 years to go through. By then, we hope that Congress will get a comprehensive Immigration bill passed. Until such time, the Citizenship and Immigration Service will continue to accept and approve DACA application.

Last September, President Trump originally ordered DACA to end on March 5, 2018, but on January 10, 2018, California Federal District Judge William Alsup temporarily blocked the Trump administration’s efforts to end DACA, and ordered the administration to resume receiving DACA renewal applications.

Now, if President Trump wishes to continue its appeal of Judge Alsup’s ruling, it must first file an appeal with Ninth Circuit Court of Appeals, traditionally a liberal leaning court that is likely to deny Trump’s appeal.  Once that denial is issued, then President Trump may resume its appeal to the Supreme Court.  However, even then, the Supreme Court is under no obligation to  grant certiori, meaning it would agree to hear the Trump administration’s appeal.  All these appeal steps will take time, from a year to a year and a half.

While these sets of appeals are taking place, the lower court ruling by Judge Alsup forcing the Department of Homeland Security to continue to accept DACA renewals still stands.  Thus, DACA recipients (“Dreamers”) can continue to renew their work permits under DACA.  More importantly, it buys time for Congress and the President to hopefully find a resolution to allow the nearly 700.000 Dreamers to permanently remain in the United States.

For more information, contact Banerjee & Associates

Must “Dreamers” begin to leave the U.S. once DACA expires on March 5, 2018?

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Highly doubtful. Undocumented immigrants who qualified for the Deferred Action for Childhood Arrivals (DACA) program will likely be able to legally remain in the U.S. until June 2018 at the earliest.

Last September, President Trump directed the Department of Homeland Security (DHS) to begin denying renewal of DACA permits on March 5, 2018. DACA protects young undocumented immigrants (“Dreamers”) who came to the US as children from deportation.  On Sept 8, the University of California sued DHS on behalf of approximately 4,000 Dreamer students, asserting that administrative procedures were improperly followed.  On January 10, 2018, California Federal District Judge William Alsup temporarily blocked the Trump administration’s efforts to end DACA, and ordered the administration to resume receiving DACA renewal applications.  On January 18, President Trump appealed Judge Alsup’s ruling directly to the Supreme Court, bypassing the traditional appeals route through the 9th Circuit Court of Appeals.

Today, the Supreme Court is deciding whether to take up the President’s appeal.  If the Supreme Court grants certiori and accepts the case, then the earliest rulings would come down this June.  If the Supreme Court declines to the hear the case, President Trump’s appeal would have to be heard first by the 9th Circuit Court of Appeals.  Since the lower court’s ruling blocking the President’s order will stand in either case, the earliest date for termination of DACA has been extended at least until June 2018.

DACA Background
President Barack Obama’s DACA executive action allowed undocumented immigrants under the age of 16 who came to the US to apply for protection from deportation. Those individuals must then pass a background check in order to get two-year renewal permits to study and work in the U.S.

Approximately 700,000 Dreamers were actively protected by DACA last September, when the Trump administration ordered the DACA program to end.  Applicants must have arrived in the US before 16 years of age and residing in the US since June 15, 2007 in order to be eligible.  When the DHS enacted the DACA policy in 2012, participants cannot have been older than 30.

For more information, contact Banerjee & Associates

A Very Republican solution to DACA/DAPA

By | Business Immigration, DACA, DAPA, Houston Immigration, Immigration, Immigration Policy, Uncategorized | No Comments

Let me be completely honest with you—-I am not an emotional person. I am hard on everyone and operate on pure logic. So I am not going to argue that folks bought here illegally or entered illegally cannot assimilate into their home country. If Americans of any race can live in Mexico, so can they. I am not a bleeding-heart democrat nor am I an evangelical, looking for extra followers for my religion. What I say is just the rational thing to do.

Very few people come to the USA without papers, looking for something illegal to do. They come here because they find work in the US, rather than in their country of origin. If they did not get jobs, they would go back to their home country, simply because cost of living is higher in US. So we depend on them to clean our houses, cut our grass, etc. I pay about $22/hr per person to clean my house. I am willing to pay more. But I want to come home to a clean house. I had some American maids, but their quality of work was poor and in fact horrible in comparison to what I get from the undocumented workers. American Citizens simply don’t work hard.
If I wanted a foreign nanny, I could get an Au pair. But there are NO visa categories for maids, cooks, gardeners, construction workers. There are limited quantity of fruit pickers and restaurant workers. On a side note, it is important to note that when there was a waiter shortage in Mar A Lago, the number of H-2Bs were increased just to accommodate that shortage.

The immigrants working here with no visas, should be given visas because (1) They have a job; (2) They need to pay taxes. Although many do pay taxes, they don’t have to. Would anyone pay taxes if they did not have to? (3) they need to get auto and health insurance. Otherwise they are just draining our resources.
The undocumented came here to work. They do not need Asylum, or Family Immigration (or the recent term coined by the current administration being “chain” migration.) They work. So unless the US can give us citizens who can construct our houses, clean them, care for our lawns, they have to create visa categories for these types of jobs. If Mar A Lago needs foreign waiters, we need foreign workers to do these jobs. If you create sufficient number of these visa categories and folks still come in undocumented, then yes, call them illegal.

For more information call Banerjee & Associates

Business Immigration in 2017

By | Business Immigration, Citizenship and Naturalization, H1-B, Houston Immigration, I-94, Immigration, Immigration Policy, Immigration Reform, Uncategorized | No Comments

In 2016, before the elections, my staff and I had a discussion as to what Immigration will look like in 2017, when Hillary wins. One of them asked, “what if Trump wins”. I brushed her off, saying, “oh, then we all will be annihilated, we will think survival, not immigration.” Of course, that was a joke, but here we are after a year with Trump in the White House.

I will confine myself to changes in Business Immigration during this year. In November of 2016, the US published its “final rule” on Employment based Immigration, an Obama era legacy, making life better for most business non immigrants. With a stated purpose of helping US Employers retain highly skilled individuals, the rule clarified porting, grace periods and other issues in non immigrant and immigrant business visas. So the year actually started with this gift from President Obama.

Of course that euphoria was short lived. Around March of every year, businesses get ready to file the new H-1Bs. Each year the quota for new H-1B is 65,000 +20,000 for US educated personnel. Since more than 200,000 people apply, there is a lottery held. One can file 6 months before the Government year, which starts at October 1. Therefore most petitions are mailed on March31, to reach Citizenship and Immigration (CIS) office on April 01.

On March 31, USCIS issued a “guidance memo” where they said that they do not believe that a level I wages for Computer Professionals does not qualify the employees as “professional employees.” While I do understand the Government’s concern about Computer Consulting Companies (See below), this memo is wrong for so many reasons.
1. Wage levels are set by Department of Labor, (not CIS). This memo is thus ultra vires.
2. To selectively have this for one particular industry violates the rule of law.
3. This memo is not backed up by either law or by a notice and comment period, and thus violates 14th Amendment
But then, the Constitution is not a necessary text for Trump supporters. Subsequently many if not most of those consulting company jobs, which were picked in the lottery, was denied. All those quota numbers were wasted.

Now lets look at the way big business gets its computer business needs. Lets say Macy’s wants to build a new website that would allow customers to browse on what is available in their local store and have something held for them before customers went out to shop. Macy’s will need to build a program. That is a temporary job. The Macy’s Corporation does not want to put in the time and effort to secure these temp jobs. So Macy’s will have a contract with a vendor to provide their computer needs. Sometimes these vendors are intermediary vendors, and they have contracts with sub vendors to get the computer professionals.

Now like many businesses (think Greek diners or Chinese laundromats), the business of supplying Computer Professionals were held by Indian. Not even the whole of India, it was utilized mostly by one state-Andhra Pradesh. Many Colleges there had poor standards. Many systems analysts did not know how to do the job and learned “on the job”. Companies like Macy’s are too big to monitor this. Besides many computer consulting companies were engaged in unethical business practices.

The Computer Consulting owners say that American grads don’t want to do these jobs. The lifestyle is hard—-they need to move from one location to the other with the projects. Usually they have a home base, and work long hours from Monday to Thursday. They fly home on Thursday and leave Sun day night.
Whatever the reason is I think the Government has a legitimate interest to cut back on the fraud. The Obama administration tried to deny H-1Bs with the Control issue, saying that those employees work at end client’s places (Macy’s) and are therefore not employees of the H-1B employer. However that has not had much success, since its inception in 2010.

I do think the current administration is in the correct path by insisting that Computer Consulting H-1B jobs are to be paid more. At least that will ensure that the US gets properly trained individuals. However the means which the current Government took to undertake this was underhanded and violated the Rule of Law.


For more information contact Banerjee & Associates

President Trump Tightens Visa Waiver Program

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Starting Friday, December 15, 2017, the Trump administration’s tighter rules for the Visa Waiver Program will go into effect.  The Program affects 38 countries who citizens are permitted to travel without visas to the United States, including its closest political and military “allies” such as Australia, Germany, United Kingdom, Japan, South Korea, and Taiwan.

The three new grounds of scrutiny include:

  • The countries must screen all travelers entering their country against databases provided by the U.S. of known terrorists and others who may pose a national security threat.
  • The U.S. will assess the safeguards used by each country against “insider threats” at their airports.
  • The U.S. will require that no more than 2% of travelers from each country end up staying in the U.S. past the expiration date of their visa.

The last requirement refers to “visa overstays”, which represent roughly 40% of the 11 million undocumented immigrants living in the United States.  Countries whose visitors  exceed the 2% threshold of overstays will be required to conduct public information campaigns to raise awareness of the consequences of overstays.  Using 2016 data, this third requirement currently affects Hungary, Greece, Portugal and San Marino.

For more information contact Banerjee & Associates

Is Trump’s Travel Ban Permanent?

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On Monday, December 4, 2017, the Supreme Court ruled that President Trump’s latest immigration travel ban against eight countries can take full effect, despite two ongoing legal challenges in lower courts.  Six of the eight countries are Muslim-majority: Chad, Iran, Libya, Somalia, Syria, and Yemen.  The two other countries are North Korea and certain citizens of Venezuela.  The lower courts ruled that travelers who had a “bona fide” relationship to the United States, such as grandparents, could still come in.  The latest Supreme Court order overrides these lower court rulings.  By allowing the travel ban to be fully enforced now (equivalent to a temporary stay from lower court challenges), some legal analysts believe it portends that the Supreme Court is likely to uphold the ban’s merits at a later date.

The latest ban does allow certain exceptions to travelers from the eight countries on the list.  For example, student exchange citizens from Iran can still travel to the United States, albeit under enhanced scrutiny.  Somalis may also visit the U.S. under enhanced scrutiny, but will no longer be allowed to emigrate.

In essence, the Supreme Court is waiting for a three-judge panel of the U.S. Court of Appeals for the 9th Circuit in Seattle and the full U.S. Court of Appeals for the 4th Circuit in Richmond to issue their verdicts within the next two months.  The losers of those verdicts are expected to appeal to the Supreme Court.  If those cases are heard by the Supreme Court, it is anticipated that a final ruling on President Trump’s travel ban will be made by the end of June 2018.

P-1 Athletes

By | Business Immigration, Immigration, Uncategorized | No Comments

1. Who Qualify?

1) Individual Athletes
2) Athletes who are members of a team or league has to:
3) Amateur Athletes and Coaches

2. Requirements:

1- An individual has to be internationally famous
Coming to USA to compete in competitions

2 Athletes who are members of a team or league has to:
Be a member of a team that is affiliated with 6 or more sports teams. These teams total revenue should exceed 10 million

3 Amateur Athletes and Coaches
If they are part of a team or franchise that is located in the US, and is also a member of a foreign team in their country that is affiliated with at least 15 teams.

3 Documents:

1. Contract with the US team

And at least two of the following:

Participated significantly in prior season’s sport team or College team
Participate in the National or International Event
A letter from a member of a governing body; member of sport media or a person recognized in sport about how the athlete or the team is internationally recognized
Evidence of a high rank
Evidence of a significant win, or award


For more information contact Banerjee & Associates

Employment Based I-485 Interviews

By | Employer/Employee, Immigration, Immigration Policy, Uncategorized | No Comments

Who will get the interview?

Anyone who filed the I-140 application after March 17, 2017

What is the process?

The Service Center, ie Texas or Nebraska Service Center will send the case to National Benefits Center. The NBC will send the files to the various field offices.
Will the field offices Adjudicate the I-140 ?
According to Citizenship and Immigration Service, the field office will not adjudicate the I-140. But the service center will check for:
• Authenticate documents—ie Actual educational documents, Employer’s taxes, or Beneficiary’s paystub proving “ability to pay.”
• Family member’s relationship to the principal beneficiary, ie spouses will be interviewed for whether it’s a valid marriage—Take Original marriage certificate, birth certificate, joint documents like joint children/mortgage, financial documents
• Eb-1 and NIW will have to take all their original works.
• Take all status documents—–ie original H-1B approvals, and/or Employment Authorization Document cards, Sevis cards, etc.
• Valid Passport and I-94
• Paystubs and W-2—- a letter from the Employer and the Supplement J
• New Medical, if original medical is a year old

Interviewing Officer:

Field Officers adjudicate family petitions. They are used to adjudicating relationships. In our previous appointments with Employment cases, we have found the interviewing officers do not have knowledge of any employment law. I have had to point out the law on several issues. American Immigration Lawyer’s Association concurs. Although Citizenship and Immigration Service is saying that they have “trained” their officers, American Immigration Lawyer’s Association is recommending a lawyer be present, at least for the first few months.

Field officers may not get the concept of “future employment”, and definitely wont be able to define NIW or EB-1.


For More information, contact Banerjee & Associates

Do Immigrants Have to Register with Selective Service?

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Selective Service is an independent branch of the United States government that retains information on all U.S. males who qualify for potential military conscription.  All males between ages 18 & 25 who are either U.S. citizens or non-citizen immigrants must register within 30 days of their 18th birthday.  However, registration with Selective Service is not the same as signing up with the U.S. Armed Services, since Selective Service is not a part of the Department of Defense.

A non-citizen immigrant is one who possesses an immigrant visa with an intent to remain in the United States. Non-citizen immigrants include parolees, undocumented immigrants, legal permanent residents, asylum seekers, and refugees.  As a result, non-citizen immigrants between 18 & 25 years or age who attain an immigrant visa must register with Selective Service within 30 days of arriving in the United States.  Dual nationals are mandated to register with Selective Service because they are, by definition, also U.S. immigrants.

There are allowed exceptions, such as conscientious objectors, medical disabilities, and active military/National Guard/Reserve.  Non-immigrants are not required to register, i.e. B-2, H-1B, F-1 visas.