H-1B transfer of Employer in an age of No Premium

By | Business Immigration, CIS, Citizenship and Naturalization, Employer/Employee, H1-B, Immigration, Immigration Policy | No Comments

AC-21 (ACWIA) was passed by Congress to bring business immigration into the 21st Century. It recognized the speed of modern business and deemed that an H-1B Employee can change employer and work for the new employer, “upon filing” of the H-1B case. The AC-21 law did not define “filing” and common law dictates that “filing” is done when the petition is dropped in the mail. The law also created fees ($750 for employers under 25 employees, and $1500 for employers with more than 25 employees) to educate the American workforce to reduce foreign dependence.

Citizenship and Immigration Service has slowly chipped away at the AC-21 law. If the employee changes jobs and the subsequent petition is denied, then the employee does lose status.  Usually such petitions were filed under Premium Processing and the results were received within two weeks.

However, since September 11, 2018, the Citizenship and Immigration Service took out Premium Processing for Change of Employer and new H-1B cases.  As of now it is scheduled to start again from February 19th 2019This does put the employee at risk of losing status if the petition is denied. At the same time, business in the 21st Century does not wait for Citizenship and Immigration Service to take forever.

The Ombudsman, who is a liaison between the public and Citizenship and Immigration Service is having a conference with the public on November 01, which I will be attending (via phone) and will input my comments on this issue.

So the question becomes can an employer reasonably wait for that length of time? If the employer does not wait, the options are:

  1. Take a risk and jump ship. Usually if the offer is from a large company, the petition should get approved
  2. Stay with the present company and risk losing the job

 

The answer will depend on: TAKE RISK IF:

  • Are you working in house?
  • The petitioner is a Large Company?

 

DO NOT TAKE RISK IF:

  • Your petition is filed by a computer consulting company, and especially if the end client is not a direct client. However even in this scenario, it will depend on what type of document is produced.

Contact Banerjee & Associates for more information

Take the Agency to Federal Court

By | Business Immigration, CIS, Citizenship and Naturalization, Employer/Employee, H1-B, Houston Immigration, L-1 | No Comments

For some time now, Citizenship and Immigration Service has been acting against legal Immigration, under a “policy” expressed in 4 words by Mr. Trump, “Buy American, Hire American” (hereinafter referred to as BAHA.) However 4 words are not adequate to form a solid policy, and it has been largely left up to the individual adjudicators on how they adjudicate Legal Business Immigration.

H-1B

The Citizenship and Immigration Service has since then tried to interpret the term Specialty Occupation, with no legal authority whatsoever that (1) Level 1 wage is not good enough; (2) Systems Analyst is not a specialty occupation, (although it was fine even 1 year ago—and there has been numerous Systems Analyst approved by Citizenship and Immigration Service)

L-1A and B

For L-1A for small companies it is virtually impossible, with Citizenship and Immigration Service raising questions about “managerial position” viability and anything under the sun. For L-1B, unless you have a patent, nothing is specialized knowledge.

There are huge number of denials, and appeals to Administration Appeals Office (AAO) are 1. Taking forever; and 2. The AAO is being told to rubber stamp the agency’s decision.

Therefore the time has come for us to sue the Citizenship and Immigration Service in federal court. The law is on our side! We DO NEED to “forum shop”. However, with I-129 petitions being mainly adjudicated in Vermont and California, those federal courts are still quite liberal.

There are two types of lawsuits:

  • MANDAMUS

This one compels the Citizenship and Immigration Service to adjudicate the case. However note that Citizenship and Immigration Service can adjudicate the case and deny it. This is advisable when there is a very strong case, and the OPT or other restrictions will render harm to the employee

 

  • DECLARATORY JUDGEMENT

This is applicable for denials. Business Immigration litigation is in an early stage. And the Citizenship and Immigration Service does not have the resources to hire experts, let alone defend many law suits. If we have a strong case, we will win. A word of caution though—Bad facts+ Bad lawyering = Bad laws. Therefore these cases should be handled by attorneys who specialize in Business Immigration and practices mainly business immigration

For more information visit Banerjee& Associates

 

STEM OPT

By | Business Immigration, Citizenship and Naturalization, Uncategorized | No Comments

Employer’s obligations

If you are going to hire a trainee on her post education completion OPT (Optional Practical Training)
1 You must sign up with E Verify
2 Need to have the contact information of the student’s DSO—and report:

• Have a planned formal training program-on form I-983-Customized for each student with evaluation
• Any Material Change (like different location) on a new I-983
• Termination of employment —-report within 5 days of termination

2 EMPLOYER-EMPLOYEE RELATIONSHIP-
Kind of similar to the H-1B control issue, this is more specific. While employers maybe able to send employee to another location, it cannot be labor for hire. The employer or an employer’s representative should be there to supervise and implement the training described in the 983. For instance if Employer CCC employed OPT student X and deployed them to work for Amazon. Employer CCC must have another employee at Amazon to supervise X at amazon’s presence.

Small consulting companies, who cannot have the above or staffing companies should not hire OPT student. Employers need to make sure that they have enough resources and trained personnel available to train the OPT student.

STUDENTS

One gets 24 months on STEM for any STEM degree. For instance Student X does a Bachelor’s in Engineering—he gets 24 months. The he does a Master’s in Engineering. He gets another 24 mts.

UNEMPLOYMENT PERIOD :

Initial post completion 12 months: 90 days
24 month extension: 150 days

For more information please contact Banerjee & Associates

 

Employment Based Visa Retrogression

By | Business Immigration, Citizenship and Naturalization, Retrogression, Uncategorized, Visa | No Comments

Please note that for the month of September 2018, the Employment based EB-1, 2 and 3 are oversubscribed worldwide. This means no one can file their Employment based I-485 petitions. Additionally if anyone who had an Employment based interview starting August 8—-will not receive their Green Card (Permanent Resident Card), until at least October. This is the first time in history for this to happen.

Charlie Oppenheim, Chief of Visa Section predicts that:
From October, EB-1 both from China and India will be able to file the I-485 petitions

He predicts that EB-1 and EB-2 for all other countries will be current from October 2019. This means that applicants who were interviewed in August will be able to get their Green Card (Permanent Resident Card).

EB-2 for China will retrogress in September 2018 from March 1, 2015 to Jan 1, 2013. This means that EB-3 for China will have a faster Priority Date. However Mr. Oppenheim does predict that China EB-2 will recover from October 2018. It will stay ahead of EB-3 until at least Jan 2019.

For India, both EB-1 and EB-2 will retrogress to 2007 and 2003. But the EB-2 numbers are expected to come up to 2009. EB-3 will move slowly pending demand.

Charlie Oppenheim is the head of the visa numbers at Department of State, and is the best possible source on visas. Please note that these are mere predictions, and may not be true

 

For more information contact Banerjee & Associates

CPT/OPT and H-1B portability Dangers

By | Business Immigration, Citizenship and Naturalization, Employer/Employee, H1-B, Immigration Policy, Immigration Reform | No Comments

 

On June 28, 2018 and July 13 2018, the CIS issued 2 memos that might drastically change the practice of Immigration law. Since I practice mainly Business Immigration Law, I will discuss the ramification of these two memos as they pertain to Business Immigration.

The RFE memo (July 13th) seems to say that RFEs will be issued for only those cases that does not meet the prima facia evidence. That evidence is just filing ALL THE REQUIRED FORMS. This memo starts from Sept 11.

The Notice to Appear memo (NTA Memo-June 28 ) says that That CIS will issue NTA (ie start removal proceedings) if CIS denies an application.

The guidance for the RFE memo is that we need to do our very best. It has not been interpreted yet, but we do need to file all control letters and Specialty Occupations letters at the filing stage.

But the NTA memo will have more far reaching consequences to Employment based applicants, particularly Stem students and H-1B portability.

An NTA is a document sent by ICE, when CIS refers the case to them. It starts the process of Removal. NTA’s are issued with no dates given on the Notice to Appear. It says TBD.  According to the Supreme Court Case Pereira V Sessions, 2018, the court ruled that writing TBD makes the NTA flawed. It has to specify the date, time and place to appear. Since that is not ICE’s procedure, lawyers have had varied success in getting those cases dismissed. Basically it depends on the judge. But those cases were before Pereira. Now though ICE has to give dates and times, so it remains to be seen what ICE will do.

 

Students on STEM

Current Request for Evidences are not based on third party sites, but on period of stay after obtaining the OPT. Students CANNOT have more than 90 days in a 12 month OPT, more than 120 days for 17 months; and more than 150 days for 24 months. Please note that voluntary work IS counted as work, so they will need employer verification.

What happens if the stem applicant gets a denial of their H status and does not have time left on their OPT?

We would like to have individuals maintain status. Please study in your subject in as good a school you can get in. Please do not take CPT. Please do NOT work illegally.

 

What happens if an H petition for transfer gets denied?

We are advising clients to file with Premium and not quit the first job. Of course the CIS will give an RFE, esp if this is a computer job, and can and does deny with no proof.

 

What happens with folks filing for Adjustment of Status has been on CPT, or has worked with no authorization?

Increasingly CIS officers, during Employment based interviews, are going through an applicant’s status and can deny based on any status issues. However, there is a remedy applicable for Employment based applicants. Under Section 245 K of the INA, the government can only look at status 180 days from the last entry. So as soon as any of these individuals receives their Advance Parole documents, we are sending them to Canada or Mexico just before the interview, so Citizenship and Immigration can ONLY adjudicate status from the last entry.

For more information contact Banerjee&Associates

 

Current Issues in Business Immigration Law

By | Business Immigration, H1-B, Houston Immigration, Immigration, Immigration Policy, Uncategorized | No Comments

Stem OPT:
Status: Students cannot have more than 90 days if the OPT is for 12 months
Students cannot have more than 120 days if the OPT is for 17 months
Students cannot have more than 150 days if the OPT is for 24 months
Make sure that the job is in the area of your subject

OPT extension-Third party: There is a fight between Citizenship and Immigration Service and Immigration and Customs enforcement about whether third party placement is allowed on the Stem extension. The problem is not who is wrong or right. The problem is that if using this excuse the Citizenship and Immigration Service denies the H petition, then the F student might get out of status.

CPT: Be very careful with the day one CPT. The Citizenship and Immigration Service will ask to prove that : 1 Your course needs you to have practical training. Also note that the schools MUST have classes as well. You cannot have a job say in a different city as the schools. Very often these are problematic and Citizenship and Immigration Service will rule that you do not have status. If you are out of status for
General advice: Keep in touch with the DSO at ALL times.

H-1B –Request for Evidence : Specialty Occupation-–The key to winning this is Expert opinion. However in third party placements, the Citizenship and Immigration Service wants an expert who has knowledge of the end project. We use folks employers know, rather than pay for stock expertise letters
H-1B Request for Evidence : Pay Level: This was more of a last year’s issue. We had an amazing brief that we wrote and won most of our specialty occupation Requests for Evidence. General advice: Stick to whatever the Employer states in the Labor Condition Application. Be careful for certain SOC codes.

For more Information visit Banerjee & Associates

Visa and Security checks.

By | Business Immigration, Houston Immigration, Immigration, Security, Travel, Uncategorized | No Comments

A huge power company client of mine told me that one of their vendors have a policy of not hiring non immigrants. However with the low employment rate, US Citizens or Green card holders cannot be found to fill the positions. The current administration has created this fear of immigrants. This is the process of how much screening goes into getting a US visa, and it is more stringent than any screening done for USCs.

1. In most types of visa the first process is filed with the Citizenship and Immigration Service. I tell my client that they are omniscient, because they can see expunged criminal history, which a State police cannot.

2. When a visa applicant goes to US consulates to get a visa, the Department of State does various types of checks. Apart from all 10 fingers and facial recognition, the Department of State also does various types of name checks, etc. These checks have various names: NCIC, Condor Sao, Mantis SAO, etc. They have intelligence that we will not have. Again, they work with various intelligence agencies, and the process has become extremely stringent since 9/11. If there is any doubt whatsoever, then visas are refused. This might explain why we have not had legal entrants entering with visas since 9/11 have not committed any crimes.

Look these up: https://en.wikipedia.org/wiki/Security_Advisory_Opinion
https://www.fbi.gov/services/cjis/nics
State govts do not have access to these

3. At their Port of Entry, the Customs and Border Patrol does another security check with all 10 fingerprinting and facial recognition. The database that all 3 agencies use are secret and private citizens do not have access to this.

4. It is a violation of employment law to discriminate against someone who the federal Govt has authorized to work. Companies can only discriminate if an individual is not qualified to do the work.

For more information, contact Banerjee and Associates

The current state of H-1B

By | Uncategorized | No Comments

Citizenship and Immigration Service has completed its lottery for H-1B and I think an inordinate amount of candidates got in. I would say about 90 percent of mine got in. I will also say that probably Citizenship and Immigration Service is planning to deny half of them. And yes, they are looking at Computer Consulting Companies.

The phrase of the day in the H-1B land is “Specialty Occupation” . Unfortunately the Citizenship and Immigration Service has confused this with the L-1B “Specialized knowledge” since 2017. Last year it was confined to computer jobs. This year this virus has spread to other fields like Petroleum Engineering, Bio tech research, etc. A two paragraph H-1B job description is no longer enough. We need a 3 page description following the Department of Labor code. And then the omniscient officer just denies it—-because yeah, she has to meet her denial quota.

I don’t know yet what sort of torture the Citizenship and Immigration Service has in store for computer professionals. But they have started with F-1 OPT. They ruled that F-1 OPT cannot be working on a third party site. The purpose of OPT is training. And if the employer cannot train personally, then its invalid.

The OPT is also cancelled if the student enrolls in a different program, like Masters or moves to a different school.

 

For more information contact Banerjee & Associates

Institutions for Non Cap H-1B

By | Business Immigration, H1-B, Uncategorized | No Comments

Institutions of Higher Education
H1B petitions filed by institutions of higher education, as defined in Section 101(a) of the Higher Education Act of 1965, 20 U.S.C. 1001(a), are exempt from the H1B cap.
Under the definition, an institution of higher education is one which:
• Admits students who have completed secondary education;
• Is licensed to provide education beyond secondary school;
• Provides educational programs for which the institutions award bachelors’ degrees or provide programs of not less than 2 years that are acceptable for full credit toward bachelors’ degrees;
• Is a public or non-profit institution; and is accredited or has been granted pre- accreditation status by a recognized accrediting agency.
Non-Profit Entities Related or Affiliated To A Higher Education Institution
H1B petitions filed by non-profit entities that are related or affiliated to an institution of higher education are exempt from the H1B cap.
1. The nonprofit entity is connected to or associated with an institution of higher education through shared ownership or control by the same board or federation;
2. The nonprofit entity is operated by an institution of higher education;
3. The nonprofit entity is attached to an institution of higher education as a member, branch, cooperative, or subsidiary; or
4. The nonprofit entity has entered into a formal written affiliation agreement with a institution of higher education that establishes an active working relationship between the nonprofit entity and the institution of higher education, and a fundamental activity of the nonprofit entity is to directly contribute to the research or education mission of the institution of higher education.—generally Hospitals qualify
Note: Other non profits might be ACWIA fee exempt, but not cap exempt.

For more information please contact Banerjee & Associates

 

Asian-American WWI Veterans Faced Difficult Path to Naturalization

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Asian-American veterans of WWI faced great difficult in both attaining and retaining U.S. citizenship via naturalization for many years after the war ended in 1918.  Even as U.S. citizens, many Japanese-American vets were interned during WWII.

Congress passed the first law regulating naturalization in 1790 (1 Stat. 103). In general, naturalization was a two-step process that took a minimum of 5 years. After residing in the United States for 2 years, an alien could file a “declaration of intent”  to become a citizen. After 3 additional years, the alien could “petition for naturalization.” After the petition was granted, a certificate of citizenship was issued to the alien. An alien could be naturalized by any court of record.

There were two notable exceptions to the “two-step, 5-year” general rule.  First,  “derivative” citizenship was granted to wives and minor children of naturalized men.  Second,  special consideration was given to veterans. An 1862 law allowed honorably discharged Army veterans of any war to petition for naturalization–without previously having filed a declaration of intent–after only 1 year of residence in the United States.  Under the Act of May 9, 1918,  aliens serving in the U.S. armed forces during “the present war” were allowed to file a petition for naturalization without making a declaration of intent or proving 5 years’ residence.  Over 192,000 aliens were naturalized between May 9, 1918, and June 30, 1919.

The Act explicitly made clear that Filipinos who had served in the military were eligible for citizenship.  However, its continued use of the term “any alien” was ambiguous as to the eligibility of other Asian groups for military naturalization. When Congressman Moore of Pennsylvania asked whether the term “may not apply to Japanese or Chinese who may be engaged somewhere in the Navy or the Army?”‘, the Chairman of the House Committee on Immigration and Naturalization, John Burnett, replied that the Act made other “Asiatics” ineligible to naturalize.  Even the Bureau of Naturalization adopted the position that other Asians did not qualify under the Act.  In contrast, Judge Horace W. Vaughan, of the U.S. District Court of Hawaii, interpreted the law to include all Asian immigrants serving in the military and began issuing naturalization orders, bypassing the Bureau of Naturalization.

Being able to claim naturalization was critical to many Asian-American veterans, who otherwise would have to leave the United States. Ko Fuk, a Chinese-American citizen who served on a U.S. Navy battleship, used his WWI naturalization certificate as proof of right to remain in the U.S. in 1922.

With all three branches of the government issuing conflicting interpretations of the Act, the case of Hidemitsu Toyota, who was naturalized at Federal Court in Boston in May 26, 1921, eventually made its way to the Supreme Court.  While Toyota’s case was still waiting to be heard,  the Supreme Court ruled in 1923 against Bhagat Singh Thind, also a WWI veteran, retroactively denying all Indian-Americans born abroad citizenship for not being a white person “in accordance with the understanding of the common man.”  Indian-Americans were considered a separate category from “Asiatics” or “Orientals”.  Unfortunately, on May 25, 1925, the Supreme Court ruled that non-Filipino Asians were not included in the Act of May 9, 1918 and Toyota’s Certificate of Naturalization was cancelled.

In 1933, Japanese WWI veteran, Tokie Slocum, began his campaign to allow Asian-American veterans the ability to naturalize.  Slocum was naturalized in 1921 and believed that his naturalization was cancelled by the Toyota Supreme Court Order.  He began writing literally everyone he could think of, including the Immigration and Naturalization Service, members of Congress, state legislators, local politicians, and attorney generals.  Slocum testified in front of Congress and became the driving force behind the Act of June 24, 1935.  This new Act allowed (1) Asian veterans of WWI to naturalize, (2) allowed Asians naturalized during the war to have their certificates validated, and (3) allowed new certificates issued to those who lost them.

As a result, at least 700 Asian-American soldiers/veterans naturalized during and after WWI.  Bhagat Singh Thind, who previously lost his Supreme Court case, was able to naturalize under the Act of June 24, 1935.  Since Thind was now an attorney, having citizenship allowed him to practice in his state.  But, many WWI vets, including Tokie Slocum, were interned during WWII.  Racial bars on naturalization did not end until 1952.