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

 

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

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

P-1 Athletes

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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

Privacy and Record Keeping by the Government

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

In view of the fact that there are many fake or exaggerated assumptions  going on about what information Citizenship and Immigration Service might collect as proposed in their notice in the Federal Register. The notice was published on 09/18/2017. Consistent with Federal Notice and Comment period you have 30 days to comment on this.
The Notice deals with WHAT information the Government can keep if one applies for any Immigration benefits. Please note that if ANYONE applies for a benefit, a file is created. For Immigrants, that file is called an A File. Also please note that the Government still has an open file on John Lennon, (yes the Beatles guy) for drug possession in the UK, with which they were seeking to deport him.
The Citizenship and Immigration Service retains information on applications, and any material the applicant or their attorney sent to them. Please note that applications to Citizenship and Immigration Service is still for a vast majority of people filed with paper files. Now this notice seeks to expand this to include electronic materials as well. This is nothing new, the Citizenship and Immigration Service was already using the “internet” to verify facts stated in the applications. For instance the Citizenship and Immigration Service conducted tests in VIBE program to check business information with D&B. In family context, it sought to see if their application matched their internet profiles. Say for instance one files a marriage based application. His FB status shows single, looking for a date. His page has posts of his recent dates with other people, while he stated to Citizenship and Immigration Service that he is married. Is this a legitimate intrusion on the part of the Government to validate the information, which is by the way, their job?
As I said before, it had been the practice of Citizenship and Immigration Service do their internet searches already. What’s new is that the Govt is saying they will KEEP such record. This includes attorney’s information as well. They will also keep the paper file information including medical record given to Citizenship and Immigration Service as part of the Green Card (Permanent Resident Card) process. For businesses, this might include transactional records. Additionally, Citizenship and Immigration Service can seek to examine publicly available social media post of Naturalized Citizen. If you don’t know this, Citizenship and Immigration Service only has jurisdiction over naturalized citizen. If you were born here, the FBI has jurisdiction to check your publicly available social media post. So can I, by the way. But do I or the Govt have the resources or the time to check everyone’s public posts? The answer is that simple.

Anyone using the internet should know that the internet is forever, anyways. What is new is that the Citizenship and Immigration Service might ask for closed Social media pages to verify information applied for. The notice on federal register says: The purpose of this system of records is to facilitate administration of benefits and enforcement of provisions under the INA and related immigration statutes. A-Files (whether paper or electronic), immigration case files, CIS, MiDAS, and NFTS are used primarily by DHS employees for immigration processing and adjudication, protection of national security, and administering and enforcing immigration and nationality laws and related regulations and policy. These records also assist DHS with detecting violations of immigration and nationality laws; supporting the referral of such violations for prosecution or other appropriate enforcement action; supporting law enforcement efforts and inspection processes at the U.S. borders; as well as to carry out DHS enforcement, immigration, intelligence, and or other homeland security functions.

My feelings? I will say, in the words of Lennon, Let it be. If you have a problem, go comment on it

 

For more information, contact Banerjee & Associates

India and China EB-1 AOS

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To file the EB-1 I-485 adjustment of status with medical or not—-that is a valid question.
The way that the Citizenship and Immigration Service is supposed to work is that they adjudicate cases first in first out. In September 2017, the final action dates for EB-1 for both India and China was backlogged to 2012. It’s current from October 1.
However both nations were current for their filing dates for EB-1. That leaves the question whether the I-485 application should be filed with the Immigration medical or not. Immigration medicals are valid for one year only. Thus if your petition takes more than 1 year to adjudicate, you have to do another medical. The second medical if necessary should be an update only, and should not include fresh vaccines.
Immigration Medical/Physical consists of the applicant going to a doctor prescribed by the Citizenship and Immigration Service. That Doctor should give you form I-693 to fill out your name. Then the doctor checks whether you have Tuberculosis, any sexually transmitted disease, (Syphilis, Gonorrhea etc) and whether you’ve had your vaccines. They also check general physical and mental health, including substance abuse.

Hepatitis B
DTP
IPV
HiB
MMR
Chicken Pox (varicella)
PPV and PCV
TD Booster
FLU (in flu season)

If you have taken any of these vaccines in your home country, please take your shot records with you to your emergency medical

 

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Recent Trends in Business Immigration

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

Much has been said about undocumented Immigration, Sanctuary cities etc; but we hardly hear about business Immigration. The recent trends in Business Immigrations are:

H-1B
The recent Request for Evidence are given for Wage level 1 rates.
Pro: We do need higher level Professionals in the US instead of entry level professionals.
Con: Employers for New H-1B don’t know who they are getting and how they will work. Its difficult to promise them higher wages without seeing their performance
Solution: Do the lottery before we apply. That way we know how much to pay or whether to even employ that person
However for petitions with a higher wage, are getting approved.
L
Although the standards are same, the burden of proof (which the applicant has) seems to have increased. Again small Companies are at a disadvantage compared to large companies. However Requests for Evidence are also being doled out for larger publicly traded Companies

PERM-Labor Certification

Right now, if one applies correctly, perms are getting certified in about 5-6 mts. Same with I-140. Not seeing increase in audits.

I-485 Adjustment of status

Although not more difficult, Adjustments both Employment and Family based are taking a lot longer to process.

For more information call Banerjee & Associates