What is the Form I-140?

By | Uncategorized | No Comments

Under U.S. law, there are two general ways that a foreign alien may enter or reside in the United States. One is by non-immigrant visa, in which the foreign alien does not plan to remain in the U.S. and whose stay is temporary in nature. Examples of non-immigrant visas include employment-based visas (i.e., H-1B, O-1, and L-1), family-based visas (i.e., K-1 fiancé), student visas (F-1, etc.), and pleasure visas such as tourist visas (i.e. B-2).

The second way is by immigrant visa. By nature, the foreigner does intend to remain in the U.S. and at the very least, strive to become a permanent resident.

Family-based immigrant visas are always accompanied by the filing of an I-130. Employment-based immigrant visa are always accompanied by the filing of an I-140. The remainder of this article will discuss the basics of an I-140.

A I-140 is a form to petition the U.S. Citizenship and Immigration Services (USCIS) to make a determination that a foreign alien qualifies for an employment-based immigrant visa. It can be filed alone or with another employment-based visa (assuming a visa number is available, depending on that alien’s country of origination).

For I-140, there are two broad categories: Extraordinary-based (EB) and PERM (Program Electronic Management Review System). PERM allows employers to sponsor employees for permanent residency by demonstrating that a particular job opening cannot be fulfilled by a U.S. worker at a preset prevailing wage approved by the Department of Labor. EB-1 petitions are not PERM-based. EB-2 can be either PERM-based or National Interest Waivers. EB-3 petitions are all PERM-based. These examples include:
EB-1(1) – Self-petitions of extraordinary ability, or an outstanding professor/researcher);
EB-1(2) – University-sponsored, non-profit-sponsored, or for-profit sponsors of outstanding professors/researchers. University-sponsored professors must be tenured or on tenure-track;
EB-1(3) – L-1A conversions to I-140

EB-2 – PERM with Master’s degree or Bachelor’s degree + 5 years of experience minimum; National Interest Waivers;

EB-3 – PERM with Bachelor’s degree and no experience, or PERM with Associates’s degree + 2-3 years experience minimum.

There are two requirements that must be completed before the filing of the PERM. The first requirement is that the employee must qualify by having the minimum requisite education and/or experience necessary for the job. The second requirement is fulfilled by the employer’s ability to pay.

The employer’s ability to pay can be met by either the “bright line” test or “grey line” test. The employer meets the “bright line” standard by demonstrating it can pay the employee’s prevailing wage stated in the PERM. Alternatively, the employer can meet this standard by proving it has a net profit greater than the salary(ies) of the total number of PERM-sponsored employee(s). The “grey line” test typically comes into play when the economy is in a recession. Here, if the employer can show that is has been a historically reliable company in paying its PERM-sponsored employees, it will given some leeway in meeting the ability-to-pay standard.
-Timmy Yip

Sound and Fury signifying Nothing

By | Citizenship and Naturalization, H1-B, Uncategorized | No Comments

The president came out with an executive order “to Buy American and hire American” It calls for changes to be made in the Department of Labor’s Labor Condition Application system. The Labor Condition Application system ensures that foreign workers are paid equivalent to US workers. But Trump presumably wants only the “brightest and the best” making a high salary.
While that is a good policy, it will be seen if the free market system can handle that. The Computer Consulting business, usually pays their employees over 100K. The problem is that their jobs require a lot of travel. The employee moves from project to project from location to location. While we do have Computer Professionals in the US, they want a lifestyle driven job that will allow them to stay in one place. We simply do not have enough Computer professional in the US. Just like picking fruits, it’s a hard life. But the crackdown might result in more outsourcing thereby reducing our tax base.
So in the end this Executive action sounds great, but may not benefit Americans. And definitely not the kind of Americans who voted for him wanting jobs.
For more information contact Banerjee & Associates

H-1B Cap Count

By | Commentary, H1-B, Immigration, Uncategorized | No Comments

On April 11, 2017 the Citizenship and Immigration Service did the lottery of the 2018 H-1B visa cap. Citizenship and Immigration Service announced today, that it had received 199,000 petitions for the 65k+20k cap quotas. Citizenship and Immigration Service has begun sending receipt notices.

If prior years is a guidance, we get receipt notices until about mid May. Then we start getting the rejections in the mail.

Keeping fingers crossed

For more information call Banerjee & Associates

The H-1B solution

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

Every year the mad dash of H-1B filings in the first week of April sends thousands of petition to the Citizenship and Immigration Service’s doorstep. If the Citizenship and Immigration Service gets more than 65K + 20 K for US Master’s Degree holder, they do a lottery, and a lucky few get in.
This year, even before the mailings began, the Citizenship and Immigration Service and Department of Labor separately issued “plans to protect American people from H-1B discrimination”. This blog demonstrates that while fraud does exist in the H-1B situation, and Government should take measures to stop the fraud, the measures proposed by the Government may not achieve their goals.
Designed to get the brightest and the best from other countries, we do see many H-1B employees not qualified to do the job. Indian Computer Consulting Companies usually from the Andhra Pradesh region of India bring in people from that region, even though, often, their qualification is suspect. They make up false “resumes” with skill set they do not possess; are placed in big companies and they then “learn on the job”. They thereby slow up American productivity. The employees have several “resumes” highlighting skills they do not possess, and placed in those jobs. That should be prohibited, and yes, penalties should be enforced for those consulting companies.
To remedy that, Citizenship and Immigration Service has said that it will target site visits and audits of these companies. It has also established an e mail address to report fraud in the system. The problem with the e mail approach is that the email might be used by hate groups to report non white employers falsely, creating a waste of government resources.
The Department of Labor has the following plan to remedy this situation:

• Rigorously use all of its existing authority to initiate investigations of H-1B program violators. This effort to protect U.S. workers will also involve greater coordination with other federal agencies, including the departments of Homeland Security and Justice for additional investigation and, if necessary, prosecution
• Consider changes to the Labor Condition Application for future application cycles. The Labor Condition Application, which is a required part of the H-1B visa application process, may be updated to provide greater transparency for agency personnel, U.S. workers and the general public.
• Continue to engage stakeholders on how the program might be improved to provide greater protections for U.S. workers, under existing authorities or through legislative changes.
The problem is that laws already exist to protect the American people. The Employers have to pay the Employee a prevailing wage, and H-1B employees cannot be paid more than American workers. Site visits wont do away with fraud, because the fraud is not that the Employee is not getting paid, but that the employee is not qualified. My proposals are:

1. DO away with an artificial H-1B quota. This quota and lottery leads to a mad dash of filings, and the lottery does not, and cannot pick the brightest and the best.

2. Change the nature of the Computer Consulting business. Right now, when big companies have a project, they contract the project out to a “Vendor”. These vendors then contracts with other vendors and staffing companies to get the necessary personnel. Instead, the companies themselves need to hire staff who will look for Employees to fill the project. These are all short time, part time projects. This staff can look for the project leader and they will be given time deadlines to get projects finished. If it is discovered that someone cannot work efficiently, and if that person is on H-1B, then their visas will be taken away, and they will not be permitted to enter USA again. Drastic, I know, but necessary to stop fraud. Google and Facebook does not tolerate this. Why should big Companies with short projects do?

For more information contact Annie Banerjee at Banerjee & Associates