CIS’s Delays and Denials

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

I am sure that most of you know by now the inordinate processing delays and Request for Evidences in almost every case, no matter what evidence we give the CIS initially. Citizenship and Immigration Service has distanced themselves from us Immigration Attorneys, and is no longer talking to American Immigration Lawyer’s Association. It has also changed its infopass system, so members of the public cannot go and ask questions.
The other thing that Citizenship and Immigration Service is doing is arbitrary denials. There is no uniformity or accountability and each officer is left to deny cases as they please.
These delays and arbitrary denials are causing needless hardship for Immigrants.
The Administrative Appeals Office, which is supposed to be a non partisan agency, who is supposed to be reviewing the case like new (ie without Citizenship and Immigration Service’s interpretation) has now rubber stamped the agency’s decision 100% of the time for the past 2.5 years.
So our ONLY remedy is to go to federal courts. Mandamus the Citizenship and Immigration Service to act, or appeal to federal courts for Citizenship and Immigration Service’s arbitrary decisions. But those of us who live in red states would probably not get a fair trial, unless we file in DC, who has jurisdiction, because that is where Citizenship and Immigration Service is located. That is of course an added time and travel expense. Especially Business Immigration, because private companies don’t work at the speed of Government.
The Citizenship and Immigration Service had always given the excuse that the delay was due to the number of petitions filed. Yet, when they published their report, it showed that there was a 13% reduction of applications filed. Simultaneously, the processing times increased by 8%.
With this knowledge in hand, the American Immigration Lawyer’s Association testified to the Congressional Immigration Committee on July 16, 2019. This is a bi partisan committee. Sharvari Dalal-Dheini, AILA Director of Government Relations, noted, “It is not hyperbole to say that the consequences of these delays are dire. In recent months, dozens of Republican and Democratic leaders in the House and Senate have demanded that USCIS address what are unacceptable low performance measures. We greatly appreciate the work the Committee is now doing to hold the agency accountable for its failure to administer immigration benefits, as Congress mandated. AILA’s more than 15,000 members have been urging USCIS to address these delays for years, only to see them worsen. Today’s hearing is vitally important, but Congress should also pass legislation to ensure greater transparency and accountability within USCIS going forward. These failures harm our economy, American businesses, families and communities. America deserves a strong, effective legal immigration system to keep businesses competitive and our families and communities prospering.”
Yesterday Forbes reported that Rep. Zoe Lofgren (D-CA) asked the Citizenship and Immigration Service about the delays and denials. USCIS Associate Director for Service Center Operations Donald Neufeld said, “I can tell you that a number of changes have been made affecting H-1B processing over the last couple of years”—-thereby admitting that changes made were a result of this administration.
I do not know if anything will change under this administration. I know I have been slower to respond to clients. But it is virtually impossible to get back to everyone at the rate we used to in 2015, because we now live in a world where Immigrants are told to go back to where they came from, even at the very top of our administration and useless Request for Evidences are the rule rather than the exception of the day. We know you are anxious. We are too. But rest assured we will fight for you as best as we can.

Fire and ICE

By | Uncategorized | No Comments

In 1985 my husband was a Medical Resident at Harvard. In 1992, we became permanent residents of the United States. I went to law school in 92, and became a lawyer. We both worked and paid taxes. We raised two children who went to Ivy Leagues and both are now MDs (A radiologist and a Psychiatrists). They will begin to pay taxes while my husband and I near retirement age. Net gain for US—substantial. My husband was a doctor. And we need doctors. But we also need Construction workers, maids, gardeners, fruit pickers, chicken pluckers. But unlike a degree in Medicine, there are no visa categories for these jobs.

                                                           Laws
There are three main ways to Immigrate to the US. They are through: Business Sponsorship, Family Sponsorship and Asylum. Business Immigration, which I have been practicing for the past 20 plus years confines itself to highly educated or high net worth individuals. And no question, America needs them. But we also need folks to clean houses, mow our lawns, etc. These are not temporary jobs, yet they are useful jobs. However the only category available right now is for temporary workers which are seasonal—-like fruit pickers or summertime restaurant workers. These visas are not for long term. My house cleaners have been working for me since 1997. It bothers me that I cannot sponsor them, because there is no Business Immigration laws for that category. Family sponsorship is limited to only immediate family for Permanent Residency Holders or Citizens.
That leaves Asylum as the ONLY option for the folks in the Southern Borders. The Asylum law states that the Alien has to prove that: “alien’s life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion” This fear has to be credible, and supported by evidence. A vague fear that “our country is lawless, and gangs could kill me” is not enough. This is extremely hard to prove. Even if the alien is personally threatened, provable evidence is not there in most cases.

                                                                Facts
According to NPR, refugees have to pay eight thousand USD per person to come to US.  Attorney’s charge 5-8K. So there is quite a bit of expense involved. And folks who can come up with that kind of money generally do not have credible fear, because they can bribe the “bad guys.” They are mostly coming for the same reason every immigrant comes to the US—to get a better life for themselves and their families. They work very hard. They construct our houses, clean them and add value to our economy. But again, we do not have the laws for this kind of business sponsorship.

                                                           Trump
Comes now Trump a bigot, a racist and an idiot. He doles out everything with a dollop of hate. When he met with this situation, instead of diffusing the situation, he resorted to hateful tweets. What resulted was the press sensationalizing the situation, more migrants coming in on fear that US will close the doors, and scant resources. They were being housed in terrible, heartbreaking conditions. Since these folks endured so much, they would be ideal workers, able and more than willing. We need these migrants.


                                                       ICE vs CONGRESS
ICE stands for Immigration and Customs Enforcement. It is their JOB to enforce the Immigration laws. But as we already established, the law is simply not there. Yet Congresswomen like Ocasio Cortez chose to criticize ICE. Yes, Trump is a racist. Despite his tweets, Trump does NOT control day to day operations of ICE. ICE is an Organization and by far they follow rules laid out by administrative decisions. The recent conditions in the border was caused by an upsurge on the amount of refugees coming in, and the facility being inadequate. To solve the problem we needed funding. And funding is provided not by the Executive, but by the legislature.
Additionally laws are made by the Congress—-not by the executive. But just like Trump, AOC will scream, and not actually do anything.


                                            Solution vs Politics
We know that the Congress is divided. However, if the House creates employment-based categories, the Senate will most likely accept them. What the senate (with majority Republican) will not accept is a “path to citizenship.” On the other hand, Democrats will not do anything unless these migrants are given a path to citizenship, aka votes. Both parties are using migrants as pawns for their agenda.
My solution is: Forget Politics. Come together and sign employment based categories for all jobs. We need help with jobs like Maids, Gardeners, Home Health Care, Construction, etc. We baby boomers NEED that help, and we can pay for this help. Give them temporary work permits renewable if they are still employed. And then, if they can show employment for X number of years, such that their connection to their home country is dwindling, then let them apply for Green Card-Permanent Residency, and then 5 years from that time, apply for Citizenship. Democrats, by then the millennials will control, and if the Republican Party does not change, they will cease to exist.

To Premium or Not to Premium

By | Uncategorized | No Comments

As the title suggests, this is a very important question. Listed below are the pros and cons of such decisions

To Premium
1. You need to travel outside the US
2. You work for a large company, get a level 4 salary, and have documents to prove Specialized Knowledge and Control
3. Your project with which the Labor Condition Application is filed may be ending soon, and you need the documents to prove your case
4. Extension with same employer
5. It eases the employees’ minds

Not to Premium
1. New petition
2. Transfers
3. Working for a small consulting company
4. All your friends are upgrading to Premium

In other words, if your case is easily approvable, do Premium.
However, in new cases, or cases requiring additional scrutiny by the Citizenship and Immigration Service, I would advise not to premium, especially if Premium processing has just started for your category. What can happen is that a lot of folks will file in Premium and officers will be inundated with work. You may supply all evidence to prove your case, but you risk the chance of a denial. For busy officers it is better to deny a real case, then approve a false case.
Once the case is denied, it is useless to appeal, because under the trump administration, the AAO is rubber stamping all of Citizenship and Immigration Service’s decision. You can fight in federal court, but that does cost money and time.

Beware of Fraudulent Phone Calls

By | Uncategorized | No Comments

Dear Clients,

I just received a call from some fraudsters that my nomorobo app did not catch. It left a voice message which said, “There is a Legal Enforcement Action filed by our department (Social Security) on your social security for fraudulent activity. So before this matter goes to the State Court or you are arrested, please call us.” The message came on my phone from 347-651-0991, but this call could come from any number.

Please do not fall for these fraudsters. And whatever you do, Please do NOT give them your social security

1. No Government agency calls you—they snail mail you
2. There is no such thing as a Legal Enforcement Action
3. Social Security is a Federal Agency and State Court has no jurisdiction——I was almost tempted to call them back and tell them that they should do some research before making robocalls

For all your Immigration needs please call us at Banerjee & Associates

Fairness for High Skilled Immigration Act-HR-1044

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

Many of you who are in some way connected to Employment Based Immigration know that Visa Numbers are set per country, and all countries get the same amount of quota. Since China and India are large countries with inordinate amounts of highly qualified individuals, the quotas for folks born in these countries fill up. As a result these Highly Skilled Legal Immigrants have to wait an inordinate amount of time to get their Permanent Residency. At present a Master’s Degree Holder who just happened to be born in India has to wait for 10 years before they can file for their Green Card. All the time, they pay taxes and maintain legal status.
This is simply unfair. A BIPARTISAN Bill was reintroduced in the House by Zoe Lofgren (D-CA) and Ken Buck (R-Co). The same bill was introduced in 2017 by Rep Kevin Yoder (R-Kan).
At the heart of this bill is FAIRNESS. Is it fair for folks to wait undue amount of time to get their Permanent Residency? People don’t CHOOSE the country they were born in.
Also, would it not be great to pass a bipartisan Immigration Bill in this divided country of ours?
Please contact your representatives and tell them what you think:

https://www.house.gov/representatives/find-your-representative

Please contact Banerjee & Associates

The Proposed changes to H-1B lottery

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

Please note that Citizenship and Immigration Service has been talking about changing the lottery system for years. Nothing was done until December 3, 2018, when Citizenship and Immigration Service published a notice and comment period with the intention of doing the lottery first with some information. Then, after the employee gets selected, the Citizenship and Immigration Service would require the whole petition.
While most attorneys, including American Immigration Lawyer’s Association, do not want this change, (hurts lawyers’ pocket books) I actually am in favor of it. However, the only thing I am concerned about is employers using it to file for numerous employees, many of whom will not qualify, thereby skewing up the lottery. The proposed rule also makes it easier for U.S. Master’s Degree Holders to score a lottery number.
When an agency like Citizenship and Immigration Service propagates a rule, the law demands that the agency propose the rule and gives the public 30 days’ notice to comment on the process and then make a rule after reading all the comments. Given the fact that this comment period ended on Jan 2, 2019, we doubt very much whether the new rule will be promulgated by March 2019. Agencies typically take at least 90-180 days to act.
Citizenship and Immigration Service also realizes the time crunch, and has said that it might not be possible to implement the new process this year. However, as we await the Citizenship and Immigration Service to release how many comments it received and its ability to act on the process, we are going to send out questionnaires for the employees, as well as a list of documents. I am just waiting on my questionnaire and forms program to be updated by software engineers with new questions that I designed myself. I was supposed to have that delivered last Friday, however I will wait one more week before sending out the previous questionnaires and document list.
Also note: that our fee structure will be based on the type of filing procedure, but will not exceed the current rate for this fiscal year. With the new procedure, the rates for entering the lottery is expected to be significantly lower.

For more information, visit Banerjee & Associates

What to do if your H-1B gets denied

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

As most of us know by now, Citizenship and Immigration Service is being arbitrary in denying H-1B visas. They have stock denial letters written out, and depending on the officers, are just sending them out without regards to what was sent to them in answering the Request for Evidence.

OPTIONS for EMPLOYERS:
If you need this employee, your best option is to sue Citizenship and Immigration Service in Federal Court. Requesting the Citizenship and Immigration Service to reopen and readjudicate the case is futile. The Citizenship and Immigration Service will take forever, and then grant you a denial. In a lawsuit, the bullshit reasons the Citizenship and Immigration Service gives for a denial falls apart.
If you win the case, the Employee gets reinstated. However, during the pendency of a lawsuit, the employee does not receive status, and if the employer loses in the suit, the employee may be subjected to penalties for unauthorized stay. Whether the employee wins or loses, depends on how the Employer has answer the Request for Evidence.
If the employee is on your current H-1B and wants to return back to her home country, you would have to pay for her return ticket back home. This is ONLY for the employee, who will not come back to the US, and not for any dependents thereof.
If the employee is on OPT, you can continue to hire her if her OPT is still valid and until such time as her OPT is still valid.

OPTIONS for EMPLOYEES:
Assuming the employee wants to stay in the US, her options are:
1 Converting to a B (Visitor’s) Visa: This might or might not buy the employee some time to resolve her affairs before leaving the US. However, beware, B visas are granted at the discretion of the adjudicating officers. A denial can have consequences for unauthorized stay

2 Converting to an F (Student) visa: If you want to further your education in the US, you can convert to an F Visa. Potential issues:
• You intent to leave the US (esp if you have an I-140 approved). The F Visa requires a strict NON IMMIGRANT intent, and the officer may deny the visa on that issue
• Having to reinstate out of the country: This is available if you are out of status, and you can go to a consulate (Canada, Mexico or your home country). This option is available, however——the Department of State might refuse if the school is not a good one, or they see it as just maintaining status. Also note: Government shutdown may affect Department of State’s budget
• Show sufficient funds to pay for the education—–This depends on how much money you have saved or do you have an affidavit of sponsorship

3 Converting to a dependent Visa—–like H-4, L-2 etc. If your spouse is in the US on a separate visa, this is a safer option

4 Marriage to US Citizen—–You might be able to get your Green Card, provided the MARRIAGE IS REAL. This should ONLY be used if you already have a US Citizen fiancé/fiancée

Whatever you do, make sure you do not have unlawful presence for more than 180 days at most. I would not advise of any unauthorized stay at all

For more information contact Banerjee & Associates

 

H-1B denials

By | Employer/Employee, H1-B, Houston Immigration, Immigration, Visa, Visa denials | No Comments

So you got your H-1B denied

If you read the denial and feel you ARE being denied on grounds that are flimsy and for documents already submitted—-we feel your pain. Unfortunately Officers are not even reading petitions and denying it with stock material that the officer is simply copying and pasting.  The problem is there is no leadership at the top, and each officer is left to deal with 4 words given by Trump: Buy American, Hire American.

We have to deal with this unfortunately. Please note that NONE of these remedies provide status to your employee, and your employee NEEDS to maintain status if he/she is in the US independently.  He/She can also go back to their home country and not accrue any unlawful presence. If the remedy is successful, they can come in with their H-1B visa.

The BEST WAY to deal with this is to sue Citizenship and Immigration Service in federal court. The court will:

  • Look at your initial filing
  • Request for Evidence
  • Reply to your Request for Evidence

If the reply to the Request for Evidence looks good (hereinafter referred to as the Record) the Court will rule in your favor.  Note though that you cannot add any other material to the record

The Positives in this scenario are:

 

  • Citizenship and Immigration Service has not been sued for business immigration before and does not know how to deal with it
  • The Citizenship and Immigration Service does NOT have the resources to hire their own expert, so your experts rule.
  • The venue is quite liberal, in CA and VT

Thus if your record is good: Multiple experts, letter from competitors, end client attestations, etc.  re recommend suing Citizenship and Immigration Service in federal court. If you choose this, please call us for costs/fees

Note: there is no time limit for this action.

 

The NOT SO GOOD WAY is following what the denial recommends, ie file a Motion to Reopen and reconsider/Appeal to the Administrative Appeals Unit (AAO)  Please note that this should be only attempted if your record is not good.  You can add other expert opinions, etc.

Our experience and American Immigration Lawyer’s Association recommendation suggest that these can be useless, since most AAO is rubber stamping the Citizenship and Immigration Service decision. These have to be filed within one month of the denial.  These take a long time, 2-4 years  for adjudication, during which the employee needs to be in status if present in the United States.  You cannot pursue Federal Court (as in above) unless this process ends.

 

We really think its better to refile the case with next year’s quota and more documents, but of course the decision is yours.

 

For more information, contact Banerjee & Associates

 

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