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

 

Current Issues in Business Immigration Law

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

Stem OPT:
Status: Students cannot have more than 90 days if the OPT is for 12 months
Students cannot have more than 120 days if the OPT is for 17 months
Students cannot have more than 150 days if the OPT is for 24 months
Make sure that the job is in the area of your subject

OPT extension-Third party: There is a fight between Citizenship and Immigration Service and Immigration and Customs enforcement about whether third party placement is allowed on the Stem extension. The problem is not who is wrong or right. The problem is that if using this excuse the Citizenship and Immigration Service denies the H petition, then the F student might get out of status.

CPT: Be very careful with the day one CPT. The Citizenship and Immigration Service will ask to prove that : 1 Your course needs you to have practical training. Also note that the schools MUST have classes as well. You cannot have a job say in a different city as the schools. Very often these are problematic and Citizenship and Immigration Service will rule that you do not have status. If you are out of status for
General advice: Keep in touch with the DSO at ALL times.

H-1B –Request for Evidence : Specialty Occupation-–The key to winning this is Expert opinion. However in third party placements, the Citizenship and Immigration Service wants an expert who has knowledge of the end project. We use folks employers know, rather than pay for stock expertise letters
H-1B Request for Evidence : Pay Level: This was more of a last year’s issue. We had an amazing brief that we wrote and won most of our specialty occupation Requests for Evidence. General advice: Stick to whatever the Employer states in the Labor Condition Application. Be careful for certain SOC codes.

For more Information visit 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

Employment Based I-485 Interviews

By | Employer/Employee, Immigration, Immigration Policy, Uncategorized | No Comments

Who will get the interview?

Anyone who filed the I-140 application after March 17, 2017

What is the process?

The Service Center, ie Texas or Nebraska Service Center will send the case to National Benefits Center. The NBC will send the files to the various field offices.
Will the field offices Adjudicate the I-140 ?
According to Citizenship and Immigration Service, the field office will not adjudicate the I-140. But the service center will check for:
• Authenticate documents—ie Actual educational documents, Employer’s taxes, or Beneficiary’s paystub proving “ability to pay.”
• Family member’s relationship to the principal beneficiary, ie spouses will be interviewed for whether it’s a valid marriage—Take Original marriage certificate, birth certificate, joint documents like joint children/mortgage, financial documents
• Eb-1 and NIW will have to take all their original works.
• Take all status documents—–ie original H-1B approvals, and/or Employment Authorization Document cards, Sevis cards, etc.
• Valid Passport and I-94
• Paystubs and W-2—- a letter from the Employer and the Supplement J
• New Medical, if original medical is a year old

Interviewing Officer:

Field Officers adjudicate family petitions. They are used to adjudicating relationships. In our previous appointments with Employment cases, we have found the interviewing officers do not have knowledge of any employment law. I have had to point out the law on several issues. American Immigration Lawyer’s Association concurs. Although Citizenship and Immigration Service is saying that they have “trained” their officers, American Immigration Lawyer’s Association is recommending a lawyer be present, at least for the first few months.

Field officers may not get the concept of “future employment”, and definitely wont be able to define NIW or EB-1.

 

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

Hey You

By | DACA, Immigration, Immigration Policy, Uncategorized | No Comments

I came to America from India. One day, in an undergraduate English class in the top liberal arts college in India, the female Rhodes Scholarship winning teacher said, “for our men we are happy when they get a good job, but for our females, we are happier when they get married.” And that summed up my life in India. I would always be someone’s daughter, someone’s wife, someone’s mother. And so, like you, I came to America—–like you, whose forefathers came for a better life, like you whose parents came illegally, crossing the border so that they could give you a better life. I know you were too young to tell your parents to stop doing any illegal act. I know you were a child.
You went to school, here in America. You made friends and you played football with them. Your parents worked as maid and gardener. You were not rich, you wore second hand clothes. But there was always food on the table. Your parents did not tell you to study. They themselves can barely read. In high school, your parents did not buy you a car like the other kids. But you made it anyways. You graduated high school, you did not get into trouble.
Then you got into graphic design. When DACA came along, you got a job. You got a driver’s license. I remember the look in your face. Gone was a depressed little boy who did much of nothing. You had new enthusiasm. You got a job. In fact 2 jobs. You wanted to save up. You wanted a house, a wife like everyone else. You worked out, ate healthy and lost weight. You started looking good. There was a sense of purpose about you. You are today, what America made you.
And you paid your taxes. Paid for your Driver’s License, your car insurance, your health insurance. You gave back to America everything you could, because you love the only country you’ve lived in, the country that gave you everything.
And then you hear that you may be thrown out. As someone educated in USA, you will find a job in Mexico. But you don’t know anyone there. You don’t celebrate the same things, you don’t eat the same food. If we send you away, you will benefit the country that did nothing for you.

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

Joe Arpaio—the legacy of hate

By | Immigration, Immigration Policy, Immigration Reform, Uncategorized | No Comments

Once upon a time, not so long ago, in a place not so far away, there was a land ruled by Joe Arpaio. Maricopa County, Arizona in the 1990s and 2000s. If you were brown, you would be caught for anything and everything. If you were lucky to be put in brick and mortar jails, you would be given stale bread and milk, and moved constantly and not be given time to sleep. Coffee and TV were banned in those jails. But if they are going to lock you up for a long time for say drinking and driving, the jails will be overfilled. Then you would be put in one of Araipo’s tents. No matter the weather in the Arizona desert, you would be placed in a tent with just a pink underwear beneath your prison garb. Cruel? Racist? Yes, it was unequal justice. But Joe Araipo thought he was above the law.
In the Mid 90s Joe Arpaio gained enormous popularity in the State. He also increased the cruelty standard. He was sued by the Justice Department for wrongful death in 97, and settled with the family for 8.25 million.
The cruelty continued to rise. Araipo installed webcams in jails, including those of female inmates using the bathroom. Of course those web cams generated millions of views and strengthened Joe’s support in Arizona. Luckily however in 2004, a court ruled that those webcams violated the rights of pre trial detainees who have not yet been convicted.
In 2007, Arpaio turned his hatred full force towards Mexicans, jailing anyone who was brown. A Mexican man, on a valid visa was detained and sued Arpaio. The ACLU went on to have a class action lawsuit against Arpaio for racially profiling Mexican people.
In 2012, the Justice Department also sues Arpaio and so does the ACLU. Arpaio then launches an “investigation” that Obama’s birth certificate is not legitimate. He also of course supports Trump in 2016.
Also in 2016, he loses his reelection to the former police Chief in Maricopa County. Following a pattern that is uniquely Trump’s Arpaio does not produce documents —the first one to not do so in 50 years. He gets convicted, but Trump, his guru pardons him.
Had he served his jail sentence even for 6 months, the sense of justice that the community wanted would be served. But Trump has no desire to unite this country, he is interested in being loyal to his criminal friends. And so the sense of injustice remains, and this is how, Joe Arpaio will be remembered.

 

For more information Contact 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