The current state of H-1B

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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

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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.

8,600 Vietnamese Immigrants in the U.S. Subject To Imminent Deportation

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Very little media attention is being paid to the plight of approximately 8,600 Vietnamese immigrants in the U.S., who are subject to final orders of deportation.  Many of these immigrants are refugees who fled to the U.S. after the Vietnam War ended in 1975 and became green card holders.  However, due to changes in the law during the Clinton administration and aggressive enforcement by President Trump, these immigrants may find themselves either deported to Vietnam or stuck in indefinite detention in the U.S.

7,821 have these Vietnamese immigrants have criminal convictions, many of these convictions are for misdemeanor petty theft or minor drug offenses.  In 1996, President Clinton signed a law that made green card holders “automatically deportable if convicted of what is termed an ‘aggravated felony’ under immigration law.” The 1996 law also made these crimes apply retroactively.  In the past, these convictions would not have resulted in deportation.  But, under President Trump, this decades-old law is now being aggressively enforced.

Under U.S. immigration law, an “aggravated felony” requires the crime to be neither “aggravated” nor a “felony” in any jurisdiction.  Rather, this is an all-encompassing term that Congress has defined to include many non-violent misdemeanors such as filing a false tax return or missing a court date.  Unfortunately, not only is an immigrant with an aggravated felony automatically deportable, there is not even a hearing for a judge to hear potentially mitigating circumstances such as “having fled as a kid on a boat from a homeland devastated by the U.S. military and having grown up in poverty in a strange country.”

In 2008, the U.S. and Vietnam agreed not to deport Vietnamese immigrants who had arrived in the U.S. prior to July 12, 1995.  However, President Trump’s strong desire to change that agreement has been met with fierce political opposition within the State Department.  Last year, Ted Osius, the U.S. envoy to Vietnam resigned in protest after the Trump administration pressured him to ask Vietnam to accept these 8,000+ potential deportees.  Moreover, many of these immigrants were loyal to South Vietnam (which lost the Vietnam War and no longer exists), and opposed North Vietnam, which became the present-day communist regime of Vietnam.  Mr. Osius bitterly surmised, “I feared many would become human rights cases, and our government would be culpable.”

Most damaging, while the U.S. and Vietnam are still deciding whether to accept the Vietnamese deportees, increasing numbers of Vietnamese immigrants are being detained in U.S. government facilities.  Some, like Hoang Trinh, have been detained indefinitely by Immigration and Customs Enforcement for at least 7 months, due to a previous drug charge in 2015.  Trinh arrived in the U.S. with his family when “he was 4 years old, fleeing postwar communist Vietnam in 1980. Trinh became a legal U.S. resident, married and raised two American children in California’s Orange County.”

Now, stripped of his green card, Trinh faces imminent deportation to a country he barely remembers.  If deported to Vietnam, Trinh’s only hope of returning to the United States is to obtain the unlikely consent of the U.S. attorney general, Jeff Sessions.

Is There Really a Caravan of Migrants Coming to the U.S. Border?

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This past weekend, President Donald Trump tweeted that a “caravan” of immigrants was approaching the U.S.-Mexico border, intent on committing crimes and selling drugs.  President Trump also threatened to scuttle the NAFTA treaty with Mexico if it did not secure its border, and cut off foreign aid to Honduras for not doing the same.  So, is there really a caravan of migrants on the verge of invading the United States, bent on sowing mayhem?

The simple answer is no.  Although there is a “caravan” of sorts, it is a yearly event by an organization known as “Pueblo Sin Fronteras,” or People Without Borders, which draws attention to the perilous journey that (mostly) Central American immigrants must endure in order to flee the unstable and violent environments in their native countries.  The caravan typically ends in Mexico City in southern Mexico, about 600 miles from the U.S border in Brownsville, TX.

Many of the migrants are trying to stay in Mexico.  Mayra Zepeda, 38, of Honduras, is trying to obtain a humanitarian Mexican residency visa, a precursor to applying for asylum in Mexico. If successful, Marya and her husband hope to find better paying jobs and, “…aren’t planning to try to cross into the U.S.  The couple left Honduras in December after incumbent President Juan Orlando Hernandez was declared the winner of a contested election. The factory where she made T-shirts for export closed due to the weeks of instability that followed the election.”

Some of the migrants will continue on their own to the border.  They will attempt to make qualifying claims for asylum, due to fears of political persecution and deadly violence back home. One of these migrants is Maria Elena Colindres Ortega, 43, a Honduran Congresswoman until this past January, who, “joined the caravan to eventually apply for political asylum in the United States. More than 20 people were killed in post-election protests and Honduras has long been dangerous for activists.”

This is a far cry from the caravan’s imminent commission of crime and drug-related activities as portrayed by the President’s tweets this past weekend.  And, in light of the false notion that this caravan is a forewarning of future increased border crossings, the U.S. Customs and Border Patrol recently reported that border crossing apprehensions have decreased by 26%, “In Fiscal Year (FY) 2017, USBP apprehended 303,916 individuals along our Southwest Border, compared to 408,870 in FY16.”

For more information visit Banerjee and Associates

H-1B multiple Filings

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The Policy memorandum on H-1B that came out on March 23, 2018, and a lot of you might have heard about yesterday, does NOT affect all Consulting Companies. It affects the case of Multiple filings by related companies for the SAME employee.
The case it is based on: Matter of S, there were two companies: One was names S and the other was names C-LLC. They both filed a petition for beneficiary X for the same end client.
Although Company S and C-LLC had different ownership, different Federal Employer Identification Number, different locations, both were filing the same petition for the same employee ie X for the same end client. What happened here was that S had a contract with end client. S filed for X with end client. Then S did a sub agreement with C-LLC. C-LLC then filed for X as well, to increase X chance of getting in. Both petitions got in: ie S and C-LLC. So C-LLC withdrew their petition. The AAO still ruled that this violated multiple filing rule for H-1B and denied the petition of S.

For more information visit Banerjee and Associates

H-1B and Computer Consulting Company

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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

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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