Hurry up and file

By | Business Immigration, CIS, Citizenship and Naturalization | No Comments

Dear Client,

This is a letter addressed to you, and all it contains is my opinion. So please read this like you do an opinion piece in a newspaper. However, I have been practicing business immigration law for the past 24 years, and this opinion is based on things I have perceived over the years.

On 10/16/2020 the Citizenship and Immigration Service announced that effective immediately the filing fee for Premium Processing would be increased from $1440 to $2500/- The fee was increased from $1225 to $1440. In October 2019 the Citizenship and Immigration Service raised that fee from $1410 to $1440/- When Premium was introduced in 2010, the fee was $1225/- Venture to guess what the next increase would be?

The reason for this increase is that apparently Citizenship and Immigration Service is short of money. Citizenship and Immigration Service does not receive US funding and it is entirely funded by the filing fees. It had worked so far. Why then, all of a sudden are they short of money? The answer lies in the fact that fed up with arbitrary denials and blatant disregard of the law, lawyers have taken to sue the Citizenship and Immigration Service. When we file lawsuits, Citizenship and Immigration Service does not receive any fees. They have to defend themselves with their own money.

Folks who know me, know that I only advocate for Premium filing if the employee needs to go outside US urgently during the pendency of their case. I spend time talking clients out of Premium, some listen, some don’t. This stems for the desire to end the anxiety of waiting to get the result. I do feel for you. But this is what happens on both ends of the spectrum when you want to do a rush filing.

In our law firm we always strive to do the very best job we possibly can. In an ideal world we would work fast and do the same job. But we live in the human world. Sometimes it is simply not possible to do our best job fast. But when you pressure us, we do the best job we can under pressure.

Similarly let’s view this from the Citizenship and Immigration Service Officer’s perspective. When you file Premium, the officers are also rushed. So, they flip through the petition and hit the pre-made Request for Evidence button. And then, once it is answered, you get an approval, depending on the officer’s mood or quota or experience. The more experienced officers tend to make rational decisions.

Now let’s explore the history of Computer Consulting Company’s H-1B immigration petition. Since about 2007 Citizenship and Immigration Service had conducted fraud investigations on Computer Consulting company and there is no doubt that fraud is rampant in that industry. In an attempt to control the fraud, the bright minds at Citizenship and Immigration Service instituted the control memo in 2010. When that failed they harped upon Specialized Knowledge. When tRump came to power, he espoused that H-1B employees need to be the most highly paid employees. This was also struck down by the court. All this led to inconsistent adjudication resulting in decisions all over the place. Lots of petitioners sued and the court consolidated a bunch of those cases in the IT Serve case. That case took away the whole specialized knowledge and control issues.

The Citizenship and Immigration Service is thus looking for ways to deny these cases. Their most recent attempt is to deny those individuals whose underlying degree is not in computer science, never mind that the law states otherwise. I am copying and pasting the law:

“For purposes of determining equivalency to a baccalaureate degree in the specialty, three years of specialized training and/or work experience must be demonstrated for each year of college-level training the alien lacks. For equivalence to an advanced (or Masters) degree, the alien must have a baccalaureate degree followed by at least five years of experience in the specialty.”

There will be more lawsuits, which would not have happened if Citizenship and Immigration Service had only followed the law. But generally, less experienced officers in Premium tend to make hasty negative decisions. And within Citizenship and Immigration Service there are no consequences for the officer, even if the decision gets overturned by a court of law, and Citizenship and Immigration Service wastes money defending these illegal decisions. There are other proposals on the books, like getting the Labor Condition Application signed by both employer and end clients. I don’t want to discuss these proposals until they are passed.

And now let’s get to the real cause of writing this letter. You, my dear client is worried, and justifiably so. I would be too, if this was my case. And I know its extremely hard to work when your status in this country is nagging you.

I hear you.  Like many of you, I grew up in India and it was not until my daughter became a psychiatrist that she diagnosed that I have what is called in this country, “anxiety disorder.” She prescribed medicine and it has helped me tremendously. By no means am I belittling your anxiety. All I am saying is that paying $2500/- to get a swift denial is not prudent.