How to cut waste for the H-1B program

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

We went through hectic preparation and filing in March; held our breath in April for the lottery results. And now we have finally come to the very painful end of the H-1B process. We are getting the actual petitions filed by us, which did not make the lottery; being returned to us by Citizenship and Immigration Service.
Because H-1B have a high burden of proof, the files are big, and it costs the Citizenship and Immigration Service a lot of money to send it back to us by Propriety mail. Although tax payers don’t have to pay for it, it’s still a waste of resources.
What Citizenship and Immigration Service should do to make the process more efficient is:
1. Take names of the employer/employee, Date of birth, evidence of education and do the lottery. We had one client who got selected twice, thereby taking two visa numbers.
2. Once the lottery and the alternative list is done, we need to file before September 30.
I realize that this is not in the interest of Immigration Attorney’s pocket book. But the above is the best solution. However, if Citizenship and Immigration Service wants to enrich our, (Attorney’s) pocketbook, then it could just send the rejection letter and the checks. They could actually e mail it to us, Attorney’s or to Employers.
To see a tear, (a rejected petition) enclosed in a jewel (expensive Priority mail boxes), makes it that much harder.

For more information contact Banerjee & Associates

Austin vs. Houston, how two Texas cities are taking different approaches in response to SB4.

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SB4 was passed by the State of Texas on May 7, 2017, which bans “sanctuary” cities and prohibits elected officials from refusing to comply with the ban.  Austin Mayor Steve Adler and Travis County Sheriff Sally Hernandez have been publicly opposed to the bill from the very beginning.  Sheriff Hernandez declared back in January 2017 that she would no longer honor jail detainer requests from U.S. Immigration and Customs Enforcement.  As a result, in February 2017 Governor Abbott cut $1.5 million in funding to Travis County over its sanctuary city policies.  On May 8, 2017, the State of Texas sued Mayor Adler, the City of Austin, Sheriff Hernandez, and Travis County in U.S. District Court for the Western District of Texas, asking the federal court to uphold the constitutionality of SB4.

In Houston, Mayor Sylvester Turner has taken a more measured approach.  Back in February 2017, Mayor Turner refused to call Houston a sanctuary city and was unconcerned with the Houston Police Department’s policy of not asking about immigration status, due to Supreme Court rulings preventing law enforcement agencies profiling someone regarding his immigration documents.  Notably, neither Mayor Turner and the city of Houston, nor any elected officials from Harris County were named as defendants in the State of Texas’ SB-4 lawsuit.  However, Mayor Turner stated on June 8, 2017 that he will ask City Council this month to consider whether to join the lawsuit challenging the constitutionality of SB4.   That vote could come as early as June 21.  Since the bill doesn’t take effect until Sept 1, 2017, perhaps Mayor Turner is using his political savvy to avoid to initial wrath of the State of Texas, while placating local city residents who disagree with SB4?

-By Timmy Yip

How “Sanctuary Cities” can Legally Refuse to Comply with Mandatory Federal Immigrant Reporting Laws

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Under Federal law, local and state governments are required to share information about immigrants’ legal status or citizenship with federal authorities. One of these requirements involves reporting any immigrant who has committed a municipal crime with a maximum year-long sentence. These include petty crimes or misdemeanors such as shoplifting trespassing, initial instances of domestic violence, and simple assault. In past administrations, these immigrants would have been reported by local municipalities, but deportations would have been rare. However, under President Trump, even legal residents have been labeled as “aggravated felons” and have been deported. Moreover, “sanctuary cities” who refuse to comply with this mandate have been threatened with the loss of federal funding.

The city of Denver has a found a legal loophole to avoid complying with federal immigrant reporting requirements, while avoiding the loss of funds from the federal government. In the past, all municipal crimes carried a maximum sentence of 365 days. Now, only the most serious offenses, such as continuous domestic violence and violence assaults, carry a maximum year-long sentence. Other lower crimes such as initial domestic violence, trespassing, and shoplifting would result in only a maximum of 300 days in jail. This change in sentencing laws allows Denver to still be eligible for federal tax dollars, yet removes Denver from the “business of immigration enforcement”
-By Timmy Yip, J.D.

https://www.washingtonpost.com/news/morning-mix/wp/2017/05/24/denver-fights-back-against-trumps-deportation-crackdown-with-surprisingly-simple-change-in-law/?utm_term=.86cced96f686

Sanctuary Cities in Texas

By | Immigration, Immigration Policy, Sanctuary Cities, Uncategorized | No Comments

Texas Governor Gregg Abbot signed the SB-4 into law via Facebook live on May 7th 2017, and it’s said to take effect on September 01, 2017. The law takes away “sanctuary cities” by allowing Police Officers to ask people’s immigration status if they are lawfully detained. In its present form, police officials who do not believe in immigration will have ample reason to detain people of brown skin color and harass them. It will also prevent undocumented people to seek police help, thereby increasing crime. This law is being challenged in court.
Although the bill does say that it will be at the police officer’s discretion, it has the potential of discrimination and harassment of people based solely on their skin color. This will be especially true in the rural areas where the KKK still has cells.
The problem is that entering illegally is not a “crime”, but rather a civil violation. Thus allowing the Police question that status serves merely to make a segment of the population to go underground. We have all seen them, folks who drive rickety cars, slowly, seldom making eye contacts. Yet they clean our houses, mow our lawns, and construct our homes and offices. They provide valuable service. If Americans would do these jobs, we would not need them. And if undocumented people don’t have jobs, they would go back. But American citizens simply won’t do these jobs. As a society we reap the benefits and comfort that these people provide us, while hiding them in shadows and denying them access to safe living. And it will only serve to make Texas less safe.
The ACLU has already issued a travel ban to Texas. Texas had spent much of last eight years opposing anything the federal government proposed. Now it is all eager to help the federal government. And so:
The people at night
Are frightened and hide
Deep in the heart pf Texas

For all your Immigration needs contact Banerjee & Associates

You did not get into the H-1B lottery. Now what?

By | H1-B, lottery, Uncategorized | No Comments

By now the Citizenship and Immigration Service has stopped giving receipt notices to the lucky few who got into the lottery.  If you have not received a receipt notice by now, chances are that you did not make it to the lottery

Please note that it is extremely important to maintain your non immigrant status. You can continue in your F-1 or H-4 visas. You may extend your OPT for the allotted time

If you (or your spouse) are not born in India or China and you have time left on your OPT, the Employer has the option to jump straight into the PERM-Labor Certification and Green Card (Permanent Resident Card) process. You might not need to change status, and might get the Green Card (Permanent Resident Card).

If you want to work, an H-3 Trainee visa may be possible. But your job needs to provide details of such training, including course materials. This is better if your job already has a training program on hand

Many nationalities (except Indians) can have a E treaty visa. If you are a Canadian or Mexican Citizen, a TN is possible. Other non immigrant categories like L, or O might be possible.

Also note an academic institution of higher education, (like a college) or a non profit research organization can sponsor you on an H-1B visa any time because they are not subject to the cap.

You can still file the H-1B next year.

For more information, call Banerjee & Associates

What is the Form I-140?

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Under U.S. law, there are two general ways that a foreign alien may enter or reside in the United States. One is by non-immigrant visa, in which the foreign alien does not plan to remain in the U.S. and whose stay is temporary in nature. Examples of non-immigrant visas include employment-based visas (i.e., H-1B, O-1, and L-1), family-based visas (i.e., K-1 fiancé), student visas (F-1, etc.), and pleasure visas such as tourist visas (i.e. B-2).

The second way is by immigrant visa. By nature, the foreigner does intend to remain in the U.S. and at the very least, strive to become a permanent resident.

Family-based immigrant visas are always accompanied by the filing of an I-130. Employment-based immigrant visa are always accompanied by the filing of an I-140. The remainder of this article will discuss the basics of an I-140.

A I-140 is a form to petition the U.S. Citizenship and Immigration Services (USCIS) to make a determination that a foreign alien qualifies for an employment-based immigrant visa. It can be filed alone or with another employment-based visa (assuming a visa number is available, depending on that alien’s country of origination).

For I-140, there are two broad categories: Extraordinary-based (EB) and PERM (Program Electronic Management Review System). PERM allows employers to sponsor employees for permanent residency by demonstrating that a particular job opening cannot be fulfilled by a U.S. worker at a preset prevailing wage approved by the Department of Labor. EB-1 petitions are not PERM-based. EB-2 can be either PERM-based or National Interest Waivers. EB-3 petitions are all PERM-based. These examples include:
EB-1(1) – Self-petitions of extraordinary ability, or an outstanding professor/researcher);
EB-1(2) – University-sponsored, non-profit-sponsored, or for-profit sponsors of outstanding professors/researchers. University-sponsored professors must be tenured or on tenure-track;
EB-1(3) – L-1A conversions to I-140

EB-2 – PERM with Master’s degree or Bachelor’s degree + 5 years of experience minimum; National Interest Waivers;

EB-3 – PERM with Bachelor’s degree and no experience, or PERM with Associates’s degree + 2-3 years experience minimum.

There are two requirements that must be completed before the filing of the PERM. The first requirement is that the employee must qualify by having the minimum requisite education and/or experience necessary for the job. The second requirement is fulfilled by the employer’s ability to pay.

The employer’s ability to pay can be met by either the “bright line” test or “grey line” test. The employer meets the “bright line” standard by demonstrating it can pay the employee’s prevailing wage stated in the PERM. Alternatively, the employer can meet this standard by proving it has a net profit greater than the salary(ies) of the total number of PERM-sponsored employee(s). The “grey line” test typically comes into play when the economy is in a recession. Here, if the employer can show that is has been a historically reliable company in paying its PERM-sponsored employees, it will given some leeway in meeting the ability-to-pay standard.
-Timmy Yip

Sound and Fury signifying Nothing

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

The president came out with an executive order “to Buy American and hire American” It calls for changes to be made in the Department of Labor’s Labor Condition Application system. The Labor Condition Application system ensures that foreign workers are paid equivalent to US workers. But Trump presumably wants only the “brightest and the best” making a high salary.
While that is a good policy, it will be seen if the free market system can handle that. The Computer Consulting business, usually pays their employees over 100K. The problem is that their jobs require a lot of travel. The employee moves from project to project from location to location. While we do have Computer Professionals in the US, they want a lifestyle driven job that will allow them to stay in one place. We simply do not have enough Computer professional in the US. Just like picking fruits, it’s a hard life. But the crackdown might result in more outsourcing thereby reducing our tax base.
So in the end this Executive action sounds great, but may not benefit Americans. And definitely not the kind of Americans who voted for him wanting jobs.
For more information contact Banerjee & Associates

H-1B Cap Count

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

On April 11, 2017 the Citizenship and Immigration Service did the lottery of the 2018 H-1B visa cap. Citizenship and Immigration Service announced today, that it had received 199,000 petitions for the 65k+20k cap quotas. Citizenship and Immigration Service has begun sending receipt notices.

If prior years is a guidance, we get receipt notices until about mid May. Then we start getting the rejections in the mail.

Keeping fingers crossed

For more information call Banerjee & Associates

The H-1B solution

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

Every year the mad dash of H-1B filings in the first week of April sends thousands of petition to the Citizenship and Immigration Service’s doorstep. If the Citizenship and Immigration Service gets more than 65K + 20 K for US Master’s Degree holder, they do a lottery, and a lucky few get in.
This year, even before the mailings began, the Citizenship and Immigration Service and Department of Labor separately issued “plans to protect American people from H-1B discrimination”. This blog demonstrates that while fraud does exist in the H-1B situation, and Government should take measures to stop the fraud, the measures proposed by the Government may not achieve their goals.
Designed to get the brightest and the best from other countries, we do see many H-1B employees not qualified to do the job. Indian Computer Consulting Companies usually from the Andhra Pradesh region of India bring in people from that region, even though, often, their qualification is suspect. They make up false “resumes” with skill set they do not possess; are placed in big companies and they then “learn on the job”. They thereby slow up American productivity. The employees have several “resumes” highlighting skills they do not possess, and placed in those jobs. That should be prohibited, and yes, penalties should be enforced for those consulting companies.
To remedy that, Citizenship and Immigration Service has said that it will target site visits and audits of these companies. It has also established an e mail address to report fraud in the system. The problem with the e mail approach is that the email might be used by hate groups to report non white employers falsely, creating a waste of government resources.
The Department of Labor has the following plan to remedy this situation:

• Rigorously use all of its existing authority to initiate investigations of H-1B program violators. This effort to protect U.S. workers will also involve greater coordination with other federal agencies, including the departments of Homeland Security and Justice for additional investigation and, if necessary, prosecution
• Consider changes to the Labor Condition Application for future application cycles. The Labor Condition Application, which is a required part of the H-1B visa application process, may be updated to provide greater transparency for agency personnel, U.S. workers and the general public.
• Continue to engage stakeholders on how the program might be improved to provide greater protections for U.S. workers, under existing authorities or through legislative changes.
The problem is that laws already exist to protect the American people. The Employers have to pay the Employee a prevailing wage, and H-1B employees cannot be paid more than American workers. Site visits wont do away with fraud, because the fraud is not that the Employee is not getting paid, but that the employee is not qualified. My proposals are:

1. DO away with an artificial H-1B quota. This quota and lottery leads to a mad dash of filings, and the lottery does not, and cannot pick the brightest and the best.

2. Change the nature of the Computer Consulting business. Right now, when big companies have a project, they contract the project out to a “Vendor”. These vendors then contracts with other vendors and staffing companies to get the necessary personnel. Instead, the companies themselves need to hire staff who will look for Employees to fill the project. These are all short time, part time projects. This staff can look for the project leader and they will be given time deadlines to get projects finished. If it is discovered that someone cannot work efficiently, and if that person is on H-1B, then their visas will be taken away, and they will not be permitted to enter USA again. Drastic, I know, but necessary to stop fraud. Google and Facebook does not tolerate this. Why should big Companies with short projects do?

For more information contact Annie Banerjee at Banerjee & Associates