DUI/DWI and Immigration

By | CIS, Employer/Employee, H1-B, Immigration Policy, Uncategorized, US Consulate, Visa | No Comments

With Thanksgiving approaching, I hope you all stay safe and don’t drink and drive.  But if you are a non immigrant (ie with say a H, E, an L or a TN visa) and you get caught (not convicted, just caught), you may receive a letter in the mail, cancelling your visa.

But, you say, you thought that you were presumed innocent until proven guilty in America.  And you are right.  Yet, the Department of State has the right to suspend your visa.  Because this is not a legal ground of inadmissibility, it’s a medical ground of inadmissibility

If your I-94 (here) is still valid, you can continue to work in the USA.  However, if you go outside the USA, you will be required to revalidate your visa.  The post will send you to a medical doctor, who will evaluate whether you are “medically fit” (read not an addict) to do your job.

So have fun, drink, but don’t drive if you do drink.  Or at least, don’t get caught

 

Please contact Annie Banerjee at Banerjee & Associates for more information

 

How to handle the Department of State

By | CIS, Commentary, Uncategorized, US Consulate, Visa | No Comments

Useful tips

1. Go dressed well for the interview
2. If you get a 221 G –con tact your attorney. Consulate decisions are final, and if you are denied, you will not be able to reenter
3. After you submit your answer for a 221G, please have patience.
4. The posts tell you to wait at least 60 days before inquiring. We actually advise 90 days. The posts are busy, so if you make yourself or your attorney a pest, the post will simply deny the visa.
5. Once you get your visa, you buy your tickets. We advise that you enter during working hours on week days, even if those tickets cost a bit more. This is because on week days and working hours the Customs and Border Patrol personnel are more senior, hass more experience and has seen your type of case before
6. Please note that if you do get into Secondary Inspection, this is not an adversarial encounter. Yes, it is difficult to wait hours after arriving from an International destination. However the visa officer is simply doing her job.
Also please note that Canadians are given I-94s. Please check your I-94 status here. Please do not overstay your visa.

Please contact Annie Banerjee at Banerjee & Associates for more information.

Due Process at Consular Posts

By | US Consulate, Visa | 154 Comments

Stories of unfair US Consular Decisions abound. People meet all the requirements of getting a particular visa, and the consulate officer denies the visa based on his or her innate prejudices. The denied applicant can almost always do nothing.

The petitioning entity in the US can usually appeal to a Congressman or Senator, who can demand the reason for the denial. However previously the Consulate did not have to give a reason for that denial under the Consular non reviewability doctrine. Under the 14th Amendment of the US Constitution, The Government cannot deny any person in the United States any rights without due process. This usually means a hearing from the applicant and a right of the applicant to defend himself. This due process was denied to individuals who were not “in” the United States. Furthermore, a Consulate decision, no matter how egregious, was not reviewable by a Federal Court in the United States.

The Appellate Court in New York (2nd Circuit) changed that in Ramadan v Napolitano. The Court held that Federal Courts have the right to review Consulate decisions, and that Consulate posts need to provide an opportunity for individuals to explain their case. This case involved a Muslim Scholar, Mr. Ramadan who was denied a visitor’s visa on the basis of the fact that he contributed money to a terrorist group that had ties to Hamas. However the contributions were made between 1998 and 2002. The US did not designate this group as a terrorist group until August 2003. Therefore Mr. Ramadan could not have known that he was making contributions to a terrorist group.

It is yet to be seen what influence this case will have in Consulates such as Chennai, which has the distinction of having the highest visa denials. Will they provide the applicants with a hearing, and if so, is this hearing going to be of any length of time to be meaningful? Additionally, many people applying for visas all over the world have limited English knowledge, and may be made to sign papers which does not state the truth.

The Rule of Law is a high ideal and although most consulate officers follow it, many are still governed by innate prejudices against little people, little corporations. Yet these are the very people that the Constitution seeks to protect. Additionally these little individuals will not have the resources to appeal their case in an US Court of Law. At the very least, maybe the documents required to prove that an applicant has the “facially legitimate and bona fide” rights to a visa, will be the same for employees of big Corporations and little start up corporations. At least this is a step in the right direction.

Contact Houston Immigration Lawyer, Annie Banerjee for more details

H-1B Denials in Consulates

By | H1-B, US Consulate | 8 Comments

The Consulates in several posts just does not understand Immigration Law., especially the H-1B law. As it is, only 65,000 slots are opened every year, and over 100,000 applications are filed. So the lucky few who get in and get approved by the United States Citizenship and Immigration Services has to go to the Consulates.

The consulates, especially in Chennai, India tend to believe that small consultation firms cannot get H-1B applicants. So they ask for a laundry list of documents, including the employer’s tax records, showing net profit, quarterly taxes, number of employees , etc. This is presumably to prove that the employer is actually doing business. Recently in an H-1B case, the Company was showing a net profit of over 200K. The consultants was to be paid $50k. At the time of filing the H-1B petition with the CIS, the employer had 45 employees. At the time of the consulate interview, the employer had 40 employee. The Chennai consulate denied the case and send it back to the CIS for “fraud investigation.” This can take years!!!!

In another case in Sydney Australia, the Consulate officer asked whether the perspective employee knew the employer, and asked whether he knew if the employer is married. The employee knew the employer, but was not related. This case also got denied and sent to fraud investigation. Where does the H-1B regs say that the employee cannot know the employer? Would people like Michael Chertoff, Alberto Gonzales etc get a job if they did not know Pres Bush?

In this huge H-1B crisis, if the visas get denied, employers will simply outsource all work. If the H-1B workers were allowed to come in, the US would get the taxes, spending, etc. Now that will go to India or China. And yes, our debt to those countries will continue to increase.

In this labor day week end, if you know of a tiotally unfair consulate denial, please write. We can submit these stories to the Department of State.