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

 

Supreme Court Denies Trump Administration Expedited Appeal – Delays DACA Termination

By | CIS, DACA, Executive Order, Immigration, Immigration Reform, SCOTUS, trump | No Comments

Today, the Supreme Court denied the Trump administration’s request for an expedited judicial appeal, in an attempt to bypass the Ninth Circuit Court of Appeals while appealing a lower Federal District Court’s ruling that the Deferred Action for Childhood Arrivals (DACA) program must continue to accept renewal applications during the appeals process. What it means is that the Supreme Court wants DACA to wind its way through the legal process before tackling this issue. We predict that it will take at least 1.5 years to go through. By then, we hope that Congress will get a comprehensive Immigration bill passed. Until such time, the Citizenship and Immigration Service will continue to accept and approve DACA application.

Last September, President Trump originally ordered DACA to end on March 5, 2018, but on January 10, 2018, California Federal District Judge William Alsup temporarily blocked the Trump administration’s efforts to end DACA, and ordered the administration to resume receiving DACA renewal applications.

Now, if President Trump wishes to continue its appeal of Judge Alsup’s ruling, it must first file an appeal with Ninth Circuit Court of Appeals, traditionally a liberal leaning court that is likely to deny Trump’s appeal.  Once that denial is issued, then President Trump may resume its appeal to the Supreme Court.  However, even then, the Supreme Court is under no obligation to  grant certiori, meaning it would agree to hear the Trump administration’s appeal.  All these appeal steps will take time, from a year to a year and a half.

While these sets of appeals are taking place, the lower court ruling by Judge Alsup forcing the Department of Homeland Security to continue to accept DACA renewals still stands.  Thus, DACA recipients (“Dreamers”) can continue to renew their work permits under DACA.  More importantly, it buys time for Congress and the President to hopefully find a resolution to allow the nearly 700.000 Dreamers to permanently remain in the United States.

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

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

How to cut waste for the H-1B program

By | H1-B, Immigration, Immigration Policy, Immigration Reform, Uncategorized | No Comments

We went through hectic preparation and filing in March; held our breath in April for the lottery results. And now we have finally come to the very painful end of the H-1B process. We are getting the actual petitions filed by us, which did not make the lottery; being returned to us by Citizenship and Immigration Service.
Because H-1B have a high burden of proof, the files are big, and it costs the Citizenship and Immigration Service a lot of money to send it back to us by Propriety mail. Although tax payers don’t have to pay for it, it’s still a waste of resources.
What Citizenship and Immigration Service should do to make the process more efficient is:
1. Take names of the employer/employee, Date of birth, evidence of education and do the lottery. We had one client who got selected twice, thereby taking two visa numbers.
2. Once the lottery and the alternative list is done, we need to file before September 30.
I realize that this is not in the interest of Immigration Attorney’s pocket book. But the above is the best solution. However, if Citizenship and Immigration Service wants to enrich our, (Attorney’s) pocketbook, then it could just send the rejection letter and the checks. They could actually e mail it to us, Attorney’s or to Employers.
To see a tear, (a rejected petition) enclosed in a jewel (expensive Priority mail boxes), makes it that much harder.

For more information contact Banerjee & Associates

2016–The Year in Immigration

By | DACA, DAPA, H1-B, Immigration Policy, Immigration Reform, Uncategorized | No Comments

Around this time of the year, as we say good bye to a year, it is customary to look back and review the events of the year. In Immigration law, there was very little if anything that was accomplished. No new laws were passed; in fact the Congress has not passed any new laws on Immigration for the last 16 years. The EB-5 Investment visa created by Congress in 1990 was about to end. The Congress extended it as is. If the Congress does nothing in the next session, that program might die. However it is interesting to note, that Donald Trump’s son in law is in charge of several EB-5 program, and several Trump hotels were built with EB-5 money.
Parts of President Obama’s executive actions, which was challenged by Texas, namely those dealing with parents of undocumented aliens, and expansion of the Dream Act was in effect denied by the Supreme Court. After Justice Scalia’s death, the Supreme Court, consisting of 8 members, deadlocked and thus, the US District Judge’s injunction against these measures became valid. The question of expanding DACA (the Dream Act) and DAPA (granting work permits to parents of the Dreamers) is for the time being, dead. Given Donald Trump’s campaign rhetoric, it is not expected to pass, especially with this same legislature.
The Provisional waivers were made a little easier. They are for:
1. Immigrants who entered without inspection,
2. have near relatives that are US citizens,
3. and these relatives will suffer if the person is deported. Therefore the Citizenship and Immigration Service will waive the fact that they entered without inspection (a civil offense), stop deportation and give them the Green Card (Permanent Resident Card).
Will there be comprehensive Immigration Reform in 2017? If I had to bet, I would bet no.

Please call Banerjee & Associates for more information

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

Both parties can agree on Immigration Reform

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

My recommendation for the next President regarding Immigration Reform:

1 Unless the same party is in charge of the legislature and the executive, Comprehensive Immigration Reform is NOT going to happen. Reform Immigration piecemeal
2 Tackle Business Immigration first—-both Republicans and Democrats love this. Silicon Valley and fruit pickers jointly agree. Construction Companies and Chicken Processors agree
3 Concede to Trump’s agenda to reduce the Business Immigration backlog
4 Take away H-1B quotas and let market place dictate demands. If an employer does not have a valid job offer and files for anyone, make employer pay a fine and bar them from sponsoring anyone for 5 years
5 Introduce legislation where ordinary folks can sponsor cleaning ladies, pool cleaners, lawn maintenance guys as Guest workers—-with visas renewable every 2 years. Everyone needs to receive a fair salary. Everyone has to pay taxes
6 If guest workers can prove continuous employment after 10 years, make them pay a fine and become legal residents. Then they have 5 years and the exam to become citizens
7 Reduce the quota for family Immigration, unless it’s a spouse of USC or a Permanent Resident. If Immigrants want family connections, they can go back. This issue is hotly challenged by Republicans and it stands to reason. Parents are usually older and tax our already falling apart health care system.
8 I feel that if the above rules are implemented, then illegal immigration will slowly diminish. People won’t stay in the US, unless they have a job offer. After 2 years of implementation, the border issue can be tackled.

Written by Annie Banerjee, for Banerjee & Associates