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

 

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

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

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

DACA Rescind

By | CIS, Citizenship and Naturalization, DACA, DAPA, Immigration, Immigration Policy, Immigration Reform, Travel, Uncategorized | No Comments

FACTS:
1. If your Work Permit expires March 5, 2018, you can file DACA extension for 2 more years—–but the application has to be received by Citizenship and Immigration Services before October 5, 2017
2. If your application is pending, the Citizenship and Immigration Services will continue to process them. Do your fingerprinting and answer all Request for Evidences
3. Anyone else cannot apply. It is advisable not to travel, even if you have a valid advance parole

Trump has asked the Congress to come up with an Immigration plan within 6 months

MORAL OBLIGATION:
The Republicans are not going to hear “emotional stories” of family unity. The only explanation is a logical one: We educated the children brought in without intention of coming illegally. They can work and pay taxes. They have already proven to be productive. Besides, they have no ties to their home country.
POLITICAL AGRUMENT:

I think both Democrats and Republicans would be open to extending DACA —-although the Obama era name might go. But if Democrats push for Citizenship, ie votes, then the outcome might get harsher. Republicans control the Legislative, Executive and Judiciary, and Democrats need to be prudent

 

For more information visit Banerjee & Associates

A Path to Citizenship for DACA

By | Citizenship and Naturalization, DACA, Executive Order, Immigration, Immigration Policy, Uncategorized | No Comments

A bipartisan (Yes, seriously) bill to extend the Dream Act was introduced today on the Senate. It was introduced by Republican Senator Lindsey Graham (SC) and Democratic Senator Dick Durbin (IL).
The so called “Dream Act” promises to not deport individuals who were brought to the US when they were kids, had completed High School, and have an unblemished moral character. Introduced by Obama as an Executive Action in 2012, Trump said in June 16, 2017, that he has not made a decision on the DACA program yet, and will not immediately cut it.
Today’s bill would actually extend a path to Citizenship to the Good Hombres. Applicants will receive a Conditional Residency for 8 years. If they prove themselves under the following conditions for 8 years, they get their Permanent Green Card (Permanent Resident Card). 5 yrs after that, they can apply for Citizenship.

They can apply for green card on the basis of:
1. Work track: Demonstrates employment over a total period of 3 years
2. Higher education: Completes at least 2 years of higher education.
3. Military service: Completes at least 2 years of military service or receive an honorable discharge.
4. Waiver: Receiving a “hardship waiver” that exempts an applicant from having to follow the tracks outlined above.

Republican Senator, Lindsey Graham said that the “Day of Reckoning” has come for the Republican party. The Question for the Republican Party is, what do we do with these people? How do we treat them? Here’s my answer: We treat them fairly, we do not pull the rug under them.”

The White House has indicated that Trump won’t sign the legislation. However, if this bill passes the Senate and the House, it will be so huge, that my guess is that Trump will sign.

For All your Immigration needs, contact Banerjee & Associates

Creating Hopes that wont Materialize

By | Citizenship and Naturalization, Houston Immigration, Immigration, Immigration Policy, Uncategorized, Visa | No Comments

From time to time, our lawmakers meet with lobby groups, with Constituents or with other interest groups and promise them the moon. They of course are given gifts and campaign contributions. In return, these lawmakers introduce bills in the Congress or the Senate. The bills might be debated or might be killed immediately. But most of them don’t make it out to the other House, and some that do, might die in the next house. During my career, I have seen countless bills die. Yet for a fleeting moment, they bring hope to people.
Whenever such bills are introduced, we lawyers get a flurry of calls. Can this be true? Can we get work permit? Can we get the green card soon? And as an Attorney, it becomes our duty to crush these dreams.
Good attorneys crush dreams. Bad attorneys sign on clients. For instances, when DAPA was introduced by the Obama administration, giving dreams of working and driving legally, to parents of children born in the United States who entered illegally, many attorneys took retainers and signed on clients. Clients think, they engaged an attorney and will get their dreams realized. But that executive action died in the Supreme Court.
Today, I got calls from Indian tech employees. They are legal residents, working in the tech sector, being productive. Yet, they have to wait 12 to 18 years after they file their petition, to ultimately get their green card. Most are Master’s degree holders and many times, their employers abuse them. They work hard. They make the best of their situation.
How does a lawyer tell them, that bills to alleviate their wait times will probably die?

 

For your Immigration needs call Banerjee & Associates