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

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

Trump’s Immigration Enforcement

By | Citizenship and Naturalization, Commentary, trump, Uncategorized, Visa | No Comments

I do not do removals (Deportation) and thus I do not have any financial stake in Trump’s massive deportation project. I do not object to a President enforcing a law, whatever it is. My objections are entirely based upon my Centrist fiscal views.
1. By detaining individuals, we are simply feeding, clothing and paying all expense (including medical) for the illegal immigrants. And that is our Tax payer dollars
2. They are given a bond hearing, and when most of them can’t pay the bond, we have to keep them detained.
3. Do the Math: there are 5000 Immigration and Customs Enforcement (ICE) Officers in the US. There are a total of 242 Immigration Judges in the US. There are 11 to 13 million illegals in the US. So to get a hearing will take a long time, during which, us, Taxpayers will house, feed and pay medical expenses for them.
4. Lawyers can further delay the process by filing appeals. This process can go on for years
5. Once we do deport them, if there is no Comprehensive Immigration plan, and there are jobs in the US, the individuals will come right back in. They just earned a plane flight back to their home country on the US Tax payers.
Solutions:
1. Create a Comprehensive Immigration Plan. If there is employment available for the people, they should be given a guest worker status. That status should be renewed every year, and if there are no jobs, they need to return to their home country. This will be applicable even if they have US Citizen wives or children. There is no reason why a family cannot survive in their home country. (Yes, I know this is easier said than done)
2. These guest workers should be able to buy their own health care, and be treated accordingly.
3. There are a lot of people from Mexico, who cross the border to get free health care in the US. They have to pay for such care in Mexico. Allow hospitals to refuse such care and send them back. Once we do this for a few time, the flow will stop
4. Do what Obama did. Deport all criminals.
5. Stop thinking about a wall. There will inevitably be tunnels under the wall.

For more information, please contact Banerjee & Assoiates

Suggested Reforms for H-1B and L-1

By | Citizenship and Naturalization, Commentary, H1-B, Immigration Policy, Immigration Reform, L-1, Uncategorized | No Comments

Let’s face it, like many other Trump promises, the ten point Immigration plan is not going to happen. There’s not going to be a wall, not going to be selective Immigration from certain countries, not going to be a Muslim registration. Why? Because we cannot go back 2000 years when China was building walls.
As an Attorney practicing Immigration law for over 20 years, I have some suggestions for Business Immigration Reforms.
I will confine this blog to reforms in the H-1B and L-1 categories.
First and foremost, we need to overhaul our entire Immigration system. However, Immigration and Health Care is too huge to overhaul in one step. It should be done in baby steps.
For Immigration, we should start with Business Immigration first. This is because both Democrats and Republicans agree on most of the issues.

H-1B:
Eliminate the quota, but become stricter on enforcement. Make employers PROVE that the job is there, and it is real. Make site visits mandatory where the Sponsor has less than 200 employees. If an H-1B employee lose his job, he will get an automatic 6 months to stay in the US. After that time, if he has found no jobs, he has to leave. He can also switch to a dependent visa like H-4, but cannot switch to a student visa (F-1), without going back to the home country. If an Employer is found to have changed the resumes of the Employee in order to get a job for that employee, then both the Employer and the Employee will be barred from future filings for 5 years. The Employee will never be given the chance to adjust status through employment and will be deportable.

L-1A:
Focus more on viability and less on job description. If a Japanese restaurant owner has to oversee cooks and waiters who are not “Professional” employees, it’s no big deal. What matters is, is the restaurant viable? Is it making money, and will it survive? If a large multinational, foreign Company, (for instance let’s say Suzuki) wants a small office in the US, which coordinates their North American business, then they should be allowed to have an L-1. Even though they may not be creating US jobs, the fact that they are doing business means that they are helping US population in some way. When the time comes for the Company to grow in the US, they will grow. But by denying them the right to have a small office, we will actually drive business to Canada or Mexico. Whether the manager is managing a function, or doing full time managerial job is immaterial. Good managers do everything. If you are the CEO of a profitable company, you can clean a room, if it looks bad, and you have the time. It won’t kill you.

L-1B:
The focus should be on the technical aspect, and not so much on the proprietary aspect. We have a shortage of technical people in the US. So even though it’s fair to say that the job has to be proprietary to the Company, the focus should be on whether the Employer can get anyone in the US to do the job with some training. If the Company is viable and profitable, then we should let the Company prosper with their L-1B candidates. After all, they will pay US taxes.

For more information contact Banerjee & Associates

Immigration and Assimilation

By | Assimilation, Citizenship and Naturalization, Commentary, Immigration Policy, Uncategorized | No Comments

My US born children have often been asked, “Where are you from?” Houston, is often not an acceptable answer to the questioning party. Its usually followed by, “Where are you really from, or where are your parents from.” This probably happens to US born non white children. I remember that American Immigration Lawyer’s Association had a blog about how important immigration is when Jeremy Lin had his “Linsanity” moment. Yet Lin was born in the US. However, the question still arises, does Immigration demand assimilation?
Color cannot be changed to “look” American. However assimilation was a big question since our country’s history. The Immigration and Naturalization Act of 1906 limited Immigration to “Caucasian” descent only. US v Bhagat Singh made a case that Mr. Singh was Caucasian of Indo European descent. The SCOTUS held that even though he might be of Aryan race (which they said was probably intermixed with Dravidian blood) Immigration was still impossible because he would not be able to “assimilate” into the American society. That made all people of Indian descent, including the father of Amar Bose, the creator of Bose Speakers, illegal.
However with successive waves of immigrants from England, France, Germany, Ireland, Italy, all brought their culture and their food, and assimilated into the melting pot of American society.
The US has a melting pot philosophy, while countries like Canada or France have a Cultural Mosaic. The difference is whether the country considers itself homogenous vs heterogeneous. Proponents of Multiculturalism decry Melting Pot theory, yet the Mosaic system has been shown to cause more discrimination. In a Mosaic system, the majority always think they are better than other groups. Yet, in modern times, it can be argued that assimilation is difficult, because the world is more connected. Immigrants can easily keep in cultural contact with their homeland via the internet, and thus create more of a mosaic society living in their own cultural world, and not embracing the “American” culture.
Whatever the case may be culturally Immigrants have made USA very diverse. You can get superb food from practically all major countries in your own city. Birth of fusion culture arises everywhere, from food trucks, to rock music. This year more than 1 million people applied for Citizenship, proving that most Immigrants are happy and love America.

Written by Annie Banerjee, for Banerjee & Associates