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

Travel Ban-Take 3-The Supreme Court Episode

By | H1-B, Immigration, SCOTUS, Travel, trump, Uncategorized, Visa | No Comments

Suppose you have a petulant child who hates your brother Jim and does not want him to visit your home. You have shut the child down, but the child just whines and screams. You know reasoning does not work. So you just say, OK, Jim cannot come for no reason. But if Jim has a reason, he can come. You are giving your child a lollipop. The child shows off his lollipop. The next time, Jim comes, you tell the child, but Jim wants to visit family. That’s a reason. And he will not come for no reason. I promise. Give the child another lollipop and hope the child forgets about this in 120 days.
That sums up the Supreme Court’s decision to lift the temporary restraining order against Trump’s travel ban. It has no substance, does not really impact anyone, and gives Trump his lollipop.

As I have said in my blog before, there is no justification for the travel ban on 6 countries: Syria, Iran, Yemen, Somalia, Sudan and Libya. Are there terrorist cells in these countries? Yes, of course. But the procedures in place already have the US Consulate performing extreme security checks before an individual is granted visa to enter the US. At one point in time, during the Obama administration, some suspected terrorists entered the US. They were deported and Obama suspended travel for these countries until a more thorough vetting procedure was implemented. But that was done, and no suspected terrorists have entered since. So clearly Trump just want to appease his intolerant base with the travel ban

The Supreme Court removed the temporary restraining order with a lesser temporary restraining order. The people not impacted are:

1. Anyone with a current visa—even a visitor’s visa issued before June 14, 2017
2. Anyone with a work visa-H, J, L, O,P, R I, F
3. Anyone with an immigrant or non Immigrant (K) family based visa
4. Diplomats

The Only group that is NOT covered are foreign tourists who are coming to USA for visiting sites in the United States. But seriously, how many tourists from these 6 countries do we find, just visiting the Grand Canyon or Disney Land? They have enough problems on their hand to think about expensive vacations. And the super-rich, who can afford to, does have either business or family connections.

B visa holders should bring with them documents showing family ties or business ties. Attending a conference, or lecturing is a valid business tie, and “mother in laws” are valid family relation. (Supreme Court said this, not me). Other visa holders should bring their visa related documents just to be sure.

So in effect, it’s a useless ban. It does affect Muslims, because Muslims are a majority in these countries. Trump said he had “clear victory”,  and the ACLU vowed to fight it.
This ban creates fear among many Muslim legal travelers. Attorney’s make money playing into that fear.

Other than that, it’s just sound and fury, signifying nothing

 

For more information call Banerjee & Associates

Travel Ban II

By | Commentary, Terrorism, Travel, trump, Uncategorized, Visa | No Comments

The second travel ban executive order, expected to take effect today has been halted, by two federal courts in Hawaii and Maryland. Trump had recrafted the travel ban to exclude Permanent Residents and US Citizens, originally hailing from the seven countries. He has also halted the processing of refugees from those seven countries.
Although the second travel ban is not, on its face unconstitutional, it does have desperate impact on persons of Muslim faith. Since Customs and Border Patrol officers have wide discretion as to who to “suspect” and “admit” their innate biases do play a factor. Report of abuses in recent times are rampant. Even Mohammad Ali’s parents were detained simply because they were of the Muslim faith.
“There is nothing “veiled” about this press release: “Donald Trump is calling for a total and complete shutdown of Muslims entering the United States,” Judge Watson of Hawaii wrote. And one may also argue that there has not been any recent incidents of terrorists trying to enter the United States from those seven countries.
Thus this useless travel ban encourages discrimination towards certain religion. If we weigh whether America can be safer with the travel ban vs. whether discrimination towards Muslim is a legitimate State interest, the travel ban becomes clearly unconstitutional. The purpose of enacting it is nothing more than fulfilling Trump’s campaign promise to ban Muslims and serves no more than fueling hatred towards Muslims. The budget cuts to the Department of State will only enhance and prolong this process.

For more information visit 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

Travel Ban take 2

By | Commentary, Immigration, Immigration Policy, Travel, trump, Uncategorized, Visa | No Comments

No Current Plans to Expand Travel Ban Beyond Current Countries (Updated February 2, 2017)

We have been hearing rumors that no one is allowed to get into the plane in Karachi, Pakistan. There are also rumors that other countries will be added to the ban. Thus American Immigration Lawyer’s Association asked Department of State to clarify.

In response to rumors of plans to expand the travel ban to other countries, DOS informed American Immigration Lawyer’s Association that there is no addendum, annex, or amendment now being worked on to expand visa revocations or the travel ban to countries other than those currently implicated in the Executive Order entitled, “Protecting the Nation From Foreign Terrorist Entry into the United States.” This includes Columbia and Venezuela which have been widely rumored to be under consideration and Pakistan. DOS confirmed that there is no information that supports such a rumor and asked that AILA members help end the spread of this false information.

So as of now, only people holding passports of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen are being detained. Green Card (Permanent Resident Card) holders and visa holders from these countries are also being put to secondary inspection which is taking at least 6-7 hours after they come to US from foreign travel. Some officers might be prejudiced and worse than others. The Green card holders might even be asked to give up their green cards. Never do that. Resist and ask for an attorney

So far, if you were born in these countries, but have other passports, then you are not stopped.

No refugees form these seven countries will be allowed in from these seven countries for at least 90 days

However please note that when Trump made the Executive Order the Department of State was not informed about it. They learned it just like all of us.

Written by Banerjee & Associates

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.

DAPA/EXTENDED DACA DEAD

By | Commentary, DAPA, Immigration Policy, SCOTUS, Uncategorized, Visa | No Comments

Since Comprehensive Immigration Reform was not likely to pass, President Obama passed a series of Executive Actions to remedy some of the harm caused by immigration inaction. Originally DACA (Deferred Action for Childhood Arrivals) was published in 2010, which basically said that Kids brought over into United States before their 16th Birthday and before 2007, and graduated from High School or are in school, would not be deported. They would also receive work permits which would enable them to work, get Driver’s Licenses, etc.

In November of 2014, President issued another Executive order granting the same benefit to DAPA (Deferred Action for Parents of Americans). He also extended the DACA to include individuals who came before 2010, and under the age of 31. However that executive action also had other provisions, which both Democrats and Republicans relating to Business Immigration. Most notably H-4 spouses of H-1B holders who has an approved I-140 can apply for work permit. Other Business Immigration visas adjudications would standardize adjudication by Citizenship and Immigration Service memorandum. Please note that these Business Immigration provisions are in place and both Democrats and Republicans agree on these provisions.
State of Texas sued on grounds that DAPA and DACA exceeded the President’s authority. The Supreme was deadlocked 4/4 on the case in June of 2016. The Obama administration filed for another certiorari, but SCOTUS has refused to hear it this coming year when the new Justice is presumably appointed.
The SCOTUS did not give any reason for this refusal. Maybe the SCOTUS thinks that President Obama will not be in office, any Executive Actions he could have taken would be moot. Maybe the Court wants Congress to tackle Comprehensive Immigration Reform. Whatever the case might be, we will be left with people driving without a license or insurance, people falling sick with no health insurance, and people earning without paying taxes. Yes, it makes no sense. This is not a Green Card (Permanent Resident Card), it’s just a work permit so that undocumented aliens can pay their fair share for living in our midst.
For more information contact Banerjee and Associates

Buying the American Dream—The EB-5 visa

By | Commentary, Houston Immigration, Immigration Policy, Visa | No Comments

EB-5 Job creation and money in US

 

I know Trump makes for a great opening line in any blog, so I will start with Trump.  Trump criticized Mr. Khan, the Gold Star parent by saying that Khan, a lawyer took money from Muslims so that they could buy their citizenship.  What he was referring to is the EB-5 investor visa program which is controversial.  But before I go into any details, let me say that Trump used EB-5 foreign money to build his luxury rental apartments in New Jersey called Trump Bay Towers.

 

The EB-5 is a program where investors can invest 1 million USD (or $500,000 in underdeveloped areas) and create at least 10 jobs.

The funds have to be obtained “lawfully” and USCIS traces the source of the funds meticulously.  If for instance, one inherits a property and sells it to obtain funds, the Citizenship and Immigration Service will demand that one traces the source of funds used by the buyer to buy the property.  This requirement is very strict

The investors have to put the funds “at risk”.  That means that the investor has to invest the money into a for profit, new venture. Very often, people invest in “regional Centers”—- businesses which pool a lot of these investment and build a new project.  However they create very little interest, and the money is tied up for about 10 years.  The interest is not enough to be able to live in the US

 

Over the years investors in this program have invested billions of dollars and have created thousands of jobs.  So why is this program criticized?  .  The problem with this program is not what Mr. Trump thinks, Muslims bringing in illegal money.

 

The problem is China.  90% of the individuals and capital come from China.  At first it would seem that China sells so much goods to us, that it is wonderful for them to invest capital in the US.  But PRC is not a free country, and that’s the problem.  Ordinarily PRC does not allow money to be brought outside the country. However, it turns a blind eye to the EB-5 program.  The investors do not directly find investment opportunities in the USA. China has state run brokers who liaise with owners of Regional Centers in the US. So these state run brokerage have access to how real estate is done in the US. They also have access to computer files.  They also can invest and control flow of capital in strategic areas.  Some have criticized that China is using economic, information and technological “warfare” with us through this EB-5 program.

The program expires on September 30th, 2016. But my guess is that this Congress will simply extend the program for one year, and let this be the problem of the new administration.

 

For more information, contact Houston Immigration Lawyer, Annie Banerjee

H-1B fraud solutions

By | Commentary, H1-B, Immigration Policy, Visa | No Comments

The H-1B program has been coming under attack lately. Ted Cruz wants to put a moratorium on H-1B visa. That seems to be the Republican solution to every crisis—-stop it and put your head under the sand, and the problem will go away. Is there fraud in the H-1B program? Yes. But the way to stop it is not through a moratorium. Assuming that most frauds in the H-1B visa is perpetrated by the computer consulting industry, this blog will deal primarily with the problems pertaining to that industry.

H-1B is the visa classification given to Professional employees to come work in US Companies. Although all types of professions use this visa, the vast majority of these visas are used by computer consulting companies for computer professionals. The end user is the place that the computer professional will actually work. Usually these are big companies. These companies contract out their work, and sometimes the intermediary companies enter into contracts with others. Thus very often the company employing the H-1B worker has one or more intermediaries between them and the end client. The petitioning consulting companies (hereinafter petitioner) often change the employees resumes to suit a job, although the employee may not have that skill. This can be stopped if the end client can have a testing requirement to before accepting someone for the job. Initially it will be a burden to devise these tests, but then, that will ensure that their work is done in an efficient way.

But the real problem is that there is a quota of 65,000 visas per year for H-1Bs (plus 20K for those who have US Masters) and there are more than 233,000 petitions filed on the first day in 2015. So the Citizenship and Immigration Service does a random lottery and the lucky 85 K get in. Then the Citizenship and Immigration Service takes a long time to adjudicate these cases, and often it’s January of the following year that the employee can get in and start working Thus employers have to calculate their need and apply with projected rather than actual figure. Since these visas lead to Green Card (Permanent Resident Card), they are coveted by employees. Thus many employees seek employers to enter the lottery. The employees often pay money to the employers to enter the lottery, which is of course against the law. The employers then file for the H-1B lottery for these employees. By the time the employee can make it to the United States, the project that was originally applied for has already been completed.
Do H-1B employees take American jobs? Please note that the Government fees for H-1B is 1575 to 4325 USD- per individual. Add attorney’s fees to that. The Employer has to pay the employee at least the Prevailing Wage, which is often higher than local employees’ pay. And even if it’s the same wage for three years, its still the same as an American worker. But we do have computer science graduates in this country. They do not want to lead the lifestyle of the computer consultant. The computer consultant is like a travelling Computer guru, who moves from project to project. They may stay in Memphis for 6 months, followed by Iowa City for 3 mts, followed by Houston for 5 mts. You get the picture. They cannot have roots anywhere. If they have families, the family has to be positioned in some place, and they usually go back for the week end. But to make up for it, they work 12 hour days from Monday to Thursday. It’s just a hard life that Comp Sci grads from this country simply do not want.

Thus the solutions to these problems are:
1. Do away with the H-1B quota and let the market dictate need:
The market is a much better predictor of demand than an artificial quota. The quota forces employers to project their need for a whole year and file accordingly. It also creates uncertainly because of the lottery and creates artificial demand. Very often the petitioner just has one or two big project and file 20 cases, even though the need maybe 5. They hope that at least 5 people get picked. This of course leads to fraudulent practices. And there can be no guarantee which employee will be lucky enough to get in. Without the quota the optimally qualified available personnel, rather than the lucky personnel will get the job.

2. Create a system whereby the HR director of the end user has to verify the employment of the employee
The Department of Labor, to end fraud in the Labor Certification program established a system where the Company has to verify that the Labor certification is a real job that does exist in the Company. The Citizenship and Immigration service is testing an employer verification system. But they need to create a simple program whereby the system sends out an e mail asking if this job exist. The adjudication (which needs to be done fast) will proceed upon a yes answer. If the e mail is fraud, then the petitioner will be barred from using the H-1B program again, and the end user will pay a fine.

3. Do Away with Control and Simeio issues:
The Obama administration created complex and useless rules to curb H-1B fraud which do not work. In 2010, the Citizenship and Immigration Service issued a memo that said these professional employees need to be “controlled”. The Government tried to say that if the petitioner does not control the employee, then they are not the Employer. The Government then proceeded to introduce this requirement ONLY to the computer consulting industry, and not to the healthcare industry, which employ the same model. Just a simple e mail from the end user should suffice. The “control” issue goes into the business model of this industry, over which the Citizenship and Immigration Service does not have jurisdiction.

Similarly in a 2015 case, Simeio, the ruling was that if an H-1B employee changes job location, the employer has to file an H-1B petition. As mentioned above these H-1B employees change job locations very frequently. Thus the Immigration Service is inundated with the H-1B petitions. The Government is taking almost a year to adjudicate these petitions. By then the employee has moved three times, making the adjudication of two of these petitions moot and a waste of time.
These two measures are quixotic and serve no purpose other than to harass employers and make attorneys rich. In order to curb fraud, the system should be made simple, hassle free and fast to keep pace with the for profit industry. Otherwise the Immigration code will quickly grow into something like the tax code, complex and filled with loop holes.

For more information contact Houston Immigration attorney, Annie Banerjee