The case arose under the Immigration and Nationality Act (INA). A man named Oshmi Dutta filed a complaint with the U.S. Department of Labor’s Wage and Hour Division contending that his employer Mahadeep Virk had violated the INA. After an investigation and a three-day hearing in January 2007, Wage and Hour’s administrator determined that Dutta’s complaint was indeed valid. To sum up the story quickly, Virk is a dentist and a partner in Avenue Dental Care clinic in Puyallup, Washington, with affiliated clinics which were added by the same appellative in neighboring Clackamas and Gresham, Oregon. Oshmi Dutta is also a dentist. In June 2002, Virk hired Dutta to work at the clinic in Washington, pursuant to the INA’s H-1B nonimmigrant worker program. At the time of the January 2007 hearing, Dutta worked at both Oregon locations.

To hire Dutta, Virk filed a Labor Condition Application (LCA) on May 7, 2002 to employ Dutta from June 1, 2002 to May 31, 2005 at $108,000 to $150,000 per year. Virk signed the LCA as “Owner Dentist President.” But by June 2003, while the LCA remained in effect, Virk and Dutta established as equal partners “Avenue Dental Care” clinics in Gresham and Clackamas, Oregon. Virk and Dutta agreed that Dutta would be responsible for day-to-day operations of these clinics. In July 2003, Dutta left Washington to work in Oregon. He drew money from the clinics to compensate himself; as of July 1, 2003, the Puyallup, Washington, clinic no longer paid Dutta his H-1B wages. Two years later, in June 2005, “Avenue Dental Care,” Puyallup, Washington, filed a second LCA to employ Dutta from June 12, 2005 to June 11, 2008, in Clackamas, Oregon, at $108,000 per year. Virk signed the LCA as “Owner Dentist President.”

In 2005, conflicts developed between Dutta and Virk. Dutta complained to Virk that Virk had not compensated him as they had agreed and that Virk had not addressed cash flow and management problems at the Oregon clinics. Dutta sought to sell Virk his fifty-percent interest in each Oregon clinic, or alternately to negotiate a new compensation agreement. Virk balked.

“I can see precisely where this is going,” said Houston-area immigration lawyer Annie Banerjee, “hard feelings were engendered. As H-1B wages are stipulated in the LCAs, and they stem from signed agreements, they must be paid.”

To learn more, visit http://www.visatous.com.

On its face, Arizona’s controversial new immigration law is very similar to the federal version. There’s a key discrepancy, however. Arizona wants every illegal immigrant caught and deported. Considering that an estimated 11 million immigrants may have already entered the U.S. illegally, this is likely to be too tall an order and according to the Feds, will overwhelm the system.

In its recent lawsuit challenging the Arizona law, the Justice Department says its policy is to focus on dangerous immigrants: gang members, drug traffickers, threats to national security. Otherwise law-abiding immigrants without documentation would largely be left alone.

Homeland Security officials say the government cannot possibly find, arrest and deport everyone who is here illegally, and trying to do so would also upset a balance crafted by Congress which takes into account humanitarian interests and foreign relations.

Proponents of the Arizona solution insist that’s no reason not to try and say the state’s toughest-in-the-nation law is a reasonable way to start.

“If it’s really the case that they don’t have enough resources to enforce the laws that Congress has passed, it would seem it’s incumbent on them to go back to Congress and ask for more resources,” said Steven Camarota, research director at the center for Immigration Studies, a group that favors stricter enforcement of immigration laws. “But since they don’t do that, it sort of undermines the argument.”

Arizona’s new law is nearly identical to federal immigration law. At issue is how it is enforced. The federal government says the state law is unconstitutional because it usurps federal authority to protect U.S. borders and American citizens. Arizona counters that the federal government is not doing its job, which forces state officials to step in.

State lawmakers argue that the federal government already enlists local authorities to identify illegal immigrants who have been arrested for other crimes. The new law, they say, just extends that to police patrols.

The federal government says the law goes too far by making it a state crime to be in Arizona illegally and requiring police to question the immigration status of anyone they encounter who is believed to be undocumented.

A. Banerjee is a Houston immigration lawyer in Texas. Before selecting an immigration lawyer in Houston Texas, contact the Law Offices of Annie Banerjee by visiting their information filled web site at http://www.visatous.com.

The Nebraska Service Center Liaison Committee has received several reports of denials on I-140 petitions for third preference professionals. These denials resulted when attorneys failed to properly distinguish the required qualifications between professionals and skilled workers on the new Form I-140 which was introduced on January 6, 2010. Prior versions of Form I-140 had only one box to check for bachelor degreed professionals and skilled workers, and did not make a distinction between the two classifications. Similarly, there is no distinction in the availability of visas as both are classified in the employment-based, third preference category. Thus, the differences between the professional with a Bachelor’s degree and a skilled worker were without a distinction prior to the introduction of the new form earlier this year.

This new form requires the petitioner to distinguish between a professional with a Bachelor’s degree and a skilled worker. Professional means a qualified alien who holds at least a United States Baccalaureate degree or a foreign equivalent degree and who is a member of the professions.

The application of this definition by NSC has resulted in the strict review of whether or not a foreign degree is the equivalent of a U.S. Bachelor’s degree and does not recognize experience as a degree’s equivalent. The ETA 9089 may establish alternative requirements that equate a pre-determined level of experience as a substitute for a degree.

This standard is similar to the second preference regulation which also requires a specific degree that is the academic equivalence to meet the requirements of the second preference (EB-2).

A denial on this issue will not preclude the filing of a second I-140 petition using the same approved PERM application but classified as a skilled worker. The cover letter and materials with a second I-140 petition should reference the first petition, include a copy of the denial, and advise NSC that the original PERM Application Form ETA 9089 can be located in the original file. The cover letter should also explain why the second petition has corrected the deficiency upon which the first petition was denied. The expiration of the Certified ETA-9089 should not preclude filing a second petition provided the first petition was filed prior to the 180-day expiration date.

A. Banerjee is a Houston immigration lawyer in Texas. Before selecting an immigration lawyer in Houston Texas, contact the Law Offices of Annie Banerjee by visiting their information filled web site at http://www.visatous.com.

Even more egregious were fees paid due to CIS’ mistake. For instance if the CIS in clear cut error denied your case, you had to file a motion to reopen for $585/- We even had a case once where the CIS collected a fee for a I-765 (EAD) filing for $340/- and lost the file. When we traced and send them the check, the reply was that my bank should ask for the money back. My bank, Bank of America, did not know how to. So we simply paid again and refiled.

Now the CIS is proposing a form: I-912 which will establish clear guidelines for fee waivers. Hopefully the form in its approved version will have no fee requirements for CIS’ mistakes along with applications for applicants below the poverty level.

Don’t just start spending the money that you were saving for the CIS fees yet though. Sometimes these forms take years to come to fruition. As for me, I will believe it when I ultimately see it.

For more information contact Houston Immigration Lawyer or Houston Immigration Attorney, Annie Banerjee

Heading into a deeper recession, the economy is definitely a factor. Unlike what most people think, Companies would rather hire US workers, and not pay the $2320/- filing fees plus attorney’s fees.

However there are some professions which have a shortage in the US. That is true of computer professionals. But the computer professional market has been bruised by a poorly conceived and legally impermissible memo that CIS promulgated on January 08, 2010. The CIS is their infinite wisdom deemed that professionals need to be “controlled” directly by the petitioning company.

The IT business typically have contracts that go through tiers— from the petitioning company to the end user. The CIS thinks that this creates “job shop” a four letter word to them.

The Jan 08 memo is startling in how unconstitutional it is—- how it totally disregards the rule of law. The class action lawsuit against it will hopefully see the end of the memo. Meanwhile software companies are outsourcing their business elsewhere.

However if there is a contract using an intermediary, control can be shown if another employee of the same H-1B employer works for the end user and actually supervises the H-1B beneficiary.

For instance if Company A, the H-1B employer has a contract with Company F and Company F has a contract with the end user, Company Bigshot. If Company A has employee X who works for Big Shot too, who supervises employee Y, who is the beneficiary, then control can be established under the January 08 memo. Of course all companies have to provide a ton of document to prove the case.

For more information contact Houston Immigration Lawyer or Houston Immigration Attorney, Annie Banerjee

On its face, Arizona’s controversial new immigration law, Senate Bill 1070, is “like two peas from the same pod,” according to Houston-area immigration lawyer Annie Banerjee, when you also consider what she calls “the federal version.” But there’s also a difference of degree in the Arizona statute. “Arizona wants every illegal immigrant caught and deported, that’s insane,” she says. Considering that an estimated 11 million immigrants may have already entered the U.S. illegally, it would also almost certainly overwhelm the system.

In its recent lawsuit challenging the Arizona law, the Justice Department asserts that its policy is to focus on dangerous immigrants: gang members, drug traffickers, threats to national security. “That’s a nice sentiment, but it’s not strictly true,” asserts Banerjee, “there have been quite a few serious abuses involved with enforcement of the federal version too.”

The sentiment in Arizona preaches that an overwhelmed system is no excuse for not deporting illegal aliens. “If it’s really the case that they don’t have enough resources to enforce the laws that Congress has passed, it would seem it’s incumbent on them to go back to Congress and ask for more resources,” said Steven Camarota, research director at the center for Immigration Studies, a group that favors stricter enforcement of immigration laws. “But since they don’t do that, it sort of undermines the argument.”

“I don’t know what he’s smoking,” counters Banerjee, “that’s ludicrous to say. To use all of law enforcement’s resources to expel foreign nationals who are here in violation of our immigration law, would mean that the cops wouldn’t have time to do anything else. Forget about solving most violent crimes. It just wouldn’t happen.”

State lawmakers argue that the federal government already enlists local authorities to identify illegal immigrants who have been arrested for other crimes. The new law, they say, just extends that to police patrols.

The federal government says the law goes too far by making it a state crime to be in Arizona illegally and requiring police to question the immigration status of anyone they encounter who is believed to be undocumented. “If only they’d crack down on abuses committed in the name of the federal law,” Banerjee lamented.

To learn more, visit http://www.visatous.com.

The proponents of the bill, like Arizona state Sen. Russell Pearce say that the bill “prohibits racial profiling.” But I wonder if every individual is stopped and asked for their passports. The will cripple business in the State. Will everyone, ie white, black, brown, yellow, and whatever other color or look need to take their passports, birth certificates, etc to Arizona?

I naturalized into this country and is in the highest tax bracket. I work and pay taxes. Yet I am brown and have an accent. As a practitioner of immigration law, I know say for instance white Canadian who are here, in the US, working illegally, but are white and except for a slight “oot and aboot” has no other accent. Who will the Arizona police “catch”?

The lawsuit is also about separate state and federal rights. The Conservative Supreme Court will champion State rights, but it will remain to be seen whether they champion Separation of Powers. My guess is that their judgment will be clouded by the more emotional issue of immigration.

For more information contact Houston Immigration Lawyer or Houston Immigration Attorney, Annie Banerjee

Who are the militias of today? The KKK– the uneducated people, who generally do not work, collect welfare checks, and blame all their owes on the colored people and now the “illegal immigrants.”

If the Supreme Court grants the right to local levels to enact gun controls, one can only speculate for instance what kind of gun control laws Maricopa COunty in Arizona will enact.

Due Process protects every “individual”; it does not say “citizens”. And just like every individual has the right to protect themselves with weapons, every individuals also have the more fundamental right to live.

Although the justices said that the Second Amendment allows for a reasonable restriction of guns, their rationale based on history of the second Amendment gives the militias a carte blanche right to bear arms. This can indeed set a dangerous precedence.

For more information contact Houston Immigration Lawyer or Houston Immigration Attorney, Annie Banerjee

When you entered the U.S., you were required to fill out a white form if you entered with a visa and a green form if you entered without a visa. Upon leaving the United States, you were supposed to surrender that I-94 form to the U.S. government. What if it didn’t happen? It’s still in your pocket when you get to your destination after a flight. The airline you traveled on didn’t take it from you. In any case, you still have it – and the U.S. government doesn’t. “For all they know, you are in the country illegally, past the date stamped on the I-94, and you are in trouble,” explains Annie Banerjee, a Houston-area immigration lawyer.

“If this happens, there’s only one option, you have to mail it back to the government and hope for the best,” Banerjee asserts, “You will also need to send corroborating documents to prove that you are out of the country.” Addressing the letter to: DHS-CBP-SBU, 1084 South Laurel Road, London, KY, 40744, USA – is the easy part, as long as you’ve slipped in the precious I-94. But corroborating documents must be sent too. “These can include, but are not limited to, the following items,” Banerjee said, before rattling off the ensuing ‘laundry list.’

1. Original boarding passes you used to depart another country, such as Canada, if you flew home from there;

2. Photocopies of entry or departure stamps in your passport indicating entry to another country;

3. After you departed the United States, you should copy all passport pages that are not completely blank, and include the biographical page containing your photograph.

4. Photocopies of other supporting evidence, such as: Dated pay slips or vouchers from your employer to indicate you worked in another country after you departed the United States;

5. Dated bank records showing transactions to indicate you were in another country after you left the United States;

6. School records showing attendance at a school outside the United States to indicate you were in another country after you left the United States;

7. Dated credit card receipts, showing your name, but, the credit card number deleted, for purchases made after you left the United States to indicate you were in another country after leaving the United States.

To learn more, visit http://www.visatous.com.

On June 8, 2010, in the lawsuit Broadgate et al versus United States Citizenship and Immigration Services, et al, the controversial Neufeld Memorandum of January 8, 2010 – which allegedly clarifies employer-employee relationships within H-1B visa applications in the interests of the United States Citizenship and Immigration Services (USCIS), but in practice has resulted in a preponderance of H-1B denials filed by Information Technology (IT) staffing firms – was challenged in the U.S. District Court for the District of Columbia.

Individual plaintiffs in the case – Broadgate Inc., Logic Planet Inc., DVR Softek Inc., TechServe Alliance, and the American Staffing Association moved in a preliminary injunction to prevent the USCIS from implementing the policy announced in a January 8, 2010, memorandum issued by Donald Neufeld, Associate Director of USCIS. The memorandum declared that a third-party placement contractor is not a United States employer even though the company hires, pays, supervises, fires its employees, and shares control over them, and even though prior to the implementation of the policy initially announced in the memorandum, such an entity was deemed to be a United States employer. It was the preliminary injunction’s contention that this new policy is arbitrary and capricious, while it explicitly changes an existing regulation, limits USCIS’s discretion, and profoundly affects plaintiffs and others outside the government.

According to the injunction, the Neufeld Memorandum is at odds with the plain language of the relevant statute and its implementing regulations. For instance, The Neufeld Memorandum is premised on the assumption that an employee can have only one employer and that “the real employer” is the entity that exercises the greatest day-to-day control. It therefore proclaims that third-party placement contractors that have an overarching right to supervise their employees, that hire, fire and pay their employees and that share control of those employees nevertheless are not valid employers because they have “No Right to Control; No Exercise of Control.” This binding policy is inconsistent with the plain language of the INA which expressly includes contractors as United States employers.

In addition, the rule first introduced in the USCIS Memorandum singles out a particular type of business and, as applied, it precludes that type of business from operating.

A. Banerjee is a Houston immigration lawyer in Texas. Before selecting an immigration lawyer in Houston Texas, contact the Law Offices of Annie Banerjee by visiting their information filled web site at http://www.visatous.com.