H-1B transfer of Employer in an age of No Premium

By | Business Immigration, CIS, Citizenship and Naturalization, Employer/Employee, H1-B, Immigration, Immigration Policy | No Comments

AC-21 (ACWIA) was passed by Congress to bring business immigration into the 21st Century. It recognized the speed of modern business and deemed that an H-1B Employee can change employer and work for the new employer, “upon filing” of the H-1B case. The AC-21 law did not define “filing” and common law dictates that “filing” is done when the petition is dropped in the mail. The law also created fees ($750 for employers under 25 employees, and $1500 for employers with more than 25 employees) to educate the American workforce to reduce foreign dependence.

Citizenship and Immigration Service has slowly chipped away at the AC-21 law. If the employee changes jobs and the subsequent petition is denied, then the employee does lose status.  Usually such petitions were filed under Premium Processing and the results were received within two weeks.

However, since September 11, 2018, the Citizenship and Immigration Service took out Premium Processing for Change of Employer and new H-1B cases.  As of now it is scheduled to start again from February 19th 2019This does put the employee at risk of losing status if the petition is denied. At the same time, business in the 21st Century does not wait for Citizenship and Immigration Service to take forever.

The Ombudsman, who is a liaison between the public and Citizenship and Immigration Service is having a conference with the public on November 01, which I will be attending (via phone) and will input my comments on this issue.

So the question becomes can an employer reasonably wait for that length of time? If the employer does not wait, the options are:

  1. Take a risk and jump ship. Usually if the offer is from a large company, the petition should get approved
  2. Stay with the present company and risk losing the job

 

The answer will depend on: TAKE RISK IF:

  • Are you working in house?
  • The petitioner is a Large Company?

 

DO NOT TAKE RISK IF:

  • Your petition is filed by a computer consulting company, and especially if the end client is not a direct client. However even in this scenario, it will depend on what type of document is produced.

Contact Banerjee & Associates for more information

Take the Agency to Federal Court

By | Business Immigration, CIS, Citizenship and Naturalization, Employer/Employee, H1-B, Houston Immigration, L-1 | No Comments

For some time now, Citizenship and Immigration Service has been acting against legal Immigration, under a “policy” expressed in 4 words by Mr. Trump, “Buy American, Hire American” (hereinafter referred to as BAHA.) However 4 words are not adequate to form a solid policy, and it has been largely left up to the individual adjudicators on how they adjudicate Legal Business Immigration.

H-1B

The Citizenship and Immigration Service has since then tried to interpret the term Specialty Occupation, with no legal authority whatsoever that (1) Level 1 wage is not good enough; (2) Systems Analyst is not a specialty occupation, (although it was fine even 1 year ago—and there has been numerous Systems Analyst approved by Citizenship and Immigration Service)

L-1A and B

For L-1A for small companies it is virtually impossible, with Citizenship and Immigration Service raising questions about “managerial position” viability and anything under the sun. For L-1B, unless you have a patent, nothing is specialized knowledge.

There are huge number of denials, and appeals to Administration Appeals Office (AAO) are 1. Taking forever; and 2. The AAO is being told to rubber stamp the agency’s decision.

Therefore the time has come for us to sue the Citizenship and Immigration Service in federal court. The law is on our side! We DO NEED to “forum shop”. However, with I-129 petitions being mainly adjudicated in Vermont and California, those federal courts are still quite liberal.

There are two types of lawsuits:

  • MANDAMUS

This one compels the Citizenship and Immigration Service to adjudicate the case. However note that Citizenship and Immigration Service can adjudicate the case and deny it. This is advisable when there is a very strong case, and the OPT or other restrictions will render harm to the employee

 

  • DECLARATORY JUDGEMENT

This is applicable for denials. Business Immigration litigation is in an early stage. And the Citizenship and Immigration Service does not have the resources to hire experts, let alone defend many law suits. If we have a strong case, we will win. A word of caution though—Bad facts+ Bad lawyering = Bad laws. Therefore these cases should be handled by attorneys who specialize in Business Immigration and practices mainly business immigration

For more information visit Banerjee& Associates