Business Immigration in 2017

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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

President Trump Tightens Visa Waiver Program

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Starting Friday, December 15, 2017, the Trump administration’s tighter rules for the Visa Waiver Program will go into effect.  The Program affects 38 countries who citizens are permitted to travel without visas to the United States, including its closest political and military “allies” such as Australia, Germany, United Kingdom, Japan, South Korea, and Taiwan.

The three new grounds of scrutiny include:

  • The countries must screen all travelers entering their country against databases provided by the U.S. of known terrorists and others who may pose a national security threat.
  • The U.S. will assess the safeguards used by each country against “insider threats” at their airports.
  • The U.S. will require that no more than 2% of travelers from each country end up staying in the U.S. past the expiration date of their visa.

The last requirement refers to “visa overstays”, which represent roughly 40% of the 11 million undocumented immigrants living in the United States.  Countries whose visitors  exceed the 2% threshold of overstays will be required to conduct public information campaigns to raise awareness of the consequences of overstays.  Using 2016 data, this third requirement currently affects Hungary, Greece, Portugal and San Marino.

For more information contact Banerjee & Associates

Is Trump’s Travel Ban Permanent?

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On Monday, December 4, 2017, the Supreme Court ruled that President Trump’s latest immigration travel ban against eight countries can take full effect, despite two ongoing legal challenges in lower courts.  Six of the eight countries are Muslim-majority: Chad, Iran, Libya, Somalia, Syria, and Yemen.  The two other countries are North Korea and certain citizens of Venezuela.  The lower courts ruled that travelers who had a “bona fide” relationship to the United States, such as grandparents, could still come in.  The latest Supreme Court order overrides these lower court rulings.  By allowing the travel ban to be fully enforced now (equivalent to a temporary stay from lower court challenges), some legal analysts believe it portends that the Supreme Court is likely to uphold the ban’s merits at a later date.

The latest ban does allow certain exceptions to travelers from the eight countries on the list.  For example, student exchange citizens from Iran can still travel to the United States, albeit under enhanced scrutiny.  Somalis may also visit the U.S. under enhanced scrutiny, but will no longer be allowed to emigrate.

In essence, the Supreme Court is waiting for a three-judge panel of the U.S. Court of Appeals for the 9th Circuit in Seattle and the full U.S. Court of Appeals for the 4th Circuit in Richmond to issue their verdicts within the next two months.  The losers of those verdicts are expected to appeal to the Supreme Court.  If those cases are heard by the Supreme Court, it is anticipated that a final ruling on President Trump’s travel ban will be made by the end of June 2018.