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.

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

 

H-1B and Computer Consulting Company

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

H-1B lottery is upon us again. This post will deal with some common Request for Evidences for H-1Bs for computer professionals.
Let’s start by saying that the government hates Computer Consulting Company, and they in turn do commit the most amount of fraud. But measures to shore up the H-1B should come from Congress. The Citizenship and Immigration Service as an agency cannot act on its own and impose restrictions that violate the rule of law. Add to that the fact that many senior managers at all agencies have quit, and officers are left to adjudicate on their own, giving birth to a disaster. There is no rhyme or reason why Citizenship and Immigration Service makes things up, and why officers adjudicate however way they feel like.
A couple of years ago, the Citizenship and Immigration Service decreed that the title of “Computer Programmer” is not a specialty one. Even though the requirement of a Computer professional is the same as Systems Analyst, software engineer, software developer. Now they don’t like Computer Programmer and Systems Analyst.
As many of you know, new H-1Bs are filed on March 31, to reach the Citizenship and Immigration Service office on April 1. The Citizenship and Immigration Service made an ultra vires declaration on March 31, 2017 that level 1 job for computer professionals, and computer professionals only, are not “Specialized” jobs. In 2010, Citizenship and Immigration Service had held that a petitioner must “control” employees. When challenged by an ex-Congressman, now an attorney who represent nurses and wrote the H-1B law, the Citizenship and Immigration Service selective applies this control doctrine only to Computer professionals.
The Citizenship and Immigration Service also routinely denies cases on the ground that the Computer job is “vague, non specific, and not specialized.” You can give them a 10 page detailed job description, they come back with form denials, which they copy and paste. How do officers judge that a certain job, which they presumably do not understand is “vague” ? Even with expert opinions, the Citizenship and Immigration Service claims, “we don’t have to take expert advice. We can tell that this is a vague description.” These officers earn less than computer professionals. Why they stick to their Government jobs is beyond me.
As I started by saying, there is fraud in the dealings of the computer consulting that has to be remedied. But this is not the way to do it. Because after all it is our freedom that the government guarantees in our Constitution. This will only lead to a slippery slope, whereby other agencies will also make law themselves, until we cease to be a democracy.

For more information contact Banerjee & Associates

Supreme Court Denies Trump Administration Expedited Appeal – Delays DACA Termination

By | CIS, DACA, Executive Order, Immigration, Immigration Reform, SCOTUS, trump | No Comments

Today, the Supreme Court denied the Trump administration’s request for an expedited judicial appeal, in an attempt to bypass the Ninth Circuit Court of Appeals while appealing a lower Federal District Court’s ruling that the Deferred Action for Childhood Arrivals (DACA) program must continue to accept renewal applications during the appeals process. What it means is that the Supreme Court wants DACA to wind its way through the legal process before tackling this issue. We predict that it will take at least 1.5 years to go through. By then, we hope that Congress will get a comprehensive Immigration bill passed. Until such time, the Citizenship and Immigration Service will continue to accept and approve DACA application.

Last September, President Trump originally ordered DACA to end on March 5, 2018, but on January 10, 2018, California Federal District Judge William Alsup temporarily blocked the Trump administration’s efforts to end DACA, and ordered the administration to resume receiving DACA renewal applications.

Now, if President Trump wishes to continue its appeal of Judge Alsup’s ruling, it must first file an appeal with Ninth Circuit Court of Appeals, traditionally a liberal leaning court that is likely to deny Trump’s appeal.  Once that denial is issued, then President Trump may resume its appeal to the Supreme Court.  However, even then, the Supreme Court is under no obligation to  grant certiori, meaning it would agree to hear the Trump administration’s appeal.  All these appeal steps will take time, from a year to a year and a half.

While these sets of appeals are taking place, the lower court ruling by Judge Alsup forcing the Department of Homeland Security to continue to accept DACA renewals still stands.  Thus, DACA recipients (“Dreamers”) can continue to renew their work permits under DACA.  More importantly, it buys time for Congress and the President to hopefully find a resolution to allow the nearly 700.000 Dreamers to permanently remain in the United States.

For more information, contact Banerjee & Associates

DACA Rescind

By | CIS, Citizenship and Naturalization, DACA, DAPA, Immigration, Immigration Policy, Immigration Reform, Travel, Uncategorized | No Comments

FACTS:
1. If your Work Permit expires March 5, 2018, you can file DACA extension for 2 more years—–but the application has to be received by Citizenship and Immigration Services before October 5, 2017
2. If your application is pending, the Citizenship and Immigration Services will continue to process them. Do your fingerprinting and answer all Request for Evidences
3. Anyone else cannot apply. It is advisable not to travel, even if you have a valid advance parole

Trump has asked the Congress to come up with an Immigration plan within 6 months

MORAL OBLIGATION:
The Republicans are not going to hear “emotional stories” of family unity. The only explanation is a logical one: We educated the children brought in without intention of coming illegally. They can work and pay taxes. They have already proven to be productive. Besides, they have no ties to their home country.
POLITICAL AGRUMENT:

I think both Democrats and Republicans would be open to extending DACA —-although the Obama era name might go. But if Democrats push for Citizenship, ie votes, then the outcome might get harsher. Republicans control the Legislative, Executive and Judiciary, and Democrats need to be prudent

 

For more information visit Banerjee & Associates

Canadian Visitors need to check I-94

By | Canada, Canadians, CIS, Commentary, I-94, Immigration, Immigration Policy, Uncategorized | No Comments

Canadians historically have crossed the border and have not been issued an I-94, nor have their passport been stamped. Snowbirds came to Florida or Arizona, and stay the entire winter, which might stretch more than 6 months. The Customs and Border Patrol (hereinafter CBP) has recently, without any warning whatsoever, started issuing I-94.  Since the I-94 is issued electronically, the Canadian nationals may not even know about it and thereby have illegal stay.

Moreover under 8 CFR §214.2(b)(2), Canadian visitor’s with a B visa has to be given a minimum of 6 months. I-94s might be given for shorter duration.

This procedure, done very quietly by CBP, might put a lot of Canadians in illegal status. Then depending on the length of their illegal stay, they may be barred from entering the United States for 3 to 10 years. This bar means no cross border shopping or even visiting your winter home down south.

Please go here to check your I-94 and get the date by which time you will need to leave USA.

For more information, please contact Banerjee & Associates.

 

USCIS Case followup

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

The USCIS generally gives processing times in Month. For instance, the Nebraska Service Center is processing H-1Bs that were filed in July 2016. However, they have said that from July 4th, will give a specific date. For instance, Nebraska Service Center is processing H-1Bs filed on July 02, 2016. If the processing time exceeds by 1 month, then you can follow up with CIS> Therefore if the date on your receipt notice is July 01, 2016, and you have not heard from the USCIS by Feb 04, 2017. The processing times are available here.

For more information contact Banerjee and Associates

DUI/DWI and Immigration

By | CIS, Employer/Employee, H1-B, Immigration Policy, Uncategorized, US Consulate, Visa | No Comments

With Thanksgiving approaching, I hope you all stay safe and don’t drink and drive.  But if you are a non immigrant (ie with say a H, E, an L or a TN visa) and you get caught (not convicted, just caught), you may receive a letter in the mail, cancelling your visa.

But, you say, you thought that you were presumed innocent until proven guilty in America.  And you are right.  Yet, the Department of State has the right to suspend your visa.  Because this is not a legal ground of inadmissibility, it’s a medical ground of inadmissibility

If your I-94 (here) is still valid, you can continue to work in the USA.  However, if you go outside the USA, you will be required to revalidate your visa.  The post will send you to a medical doctor, who will evaluate whether you are “medically fit” (read not an addict) to do your job.

So have fun, drink, but don’t drive if you do drink.  Or at least, don’t get caught

 

Please contact Annie Banerjee at Banerjee & Associates for more information

 

How to handle the Department of State

By | CIS, Commentary, Uncategorized, US Consulate, Visa | No Comments

Useful tips

1. Go dressed well for the interview
2. If you get a 221 G –con tact your attorney. Consulate decisions are final, and if you are denied, you will not be able to reenter
3. After you submit your answer for a 221G, please have patience.
4. The posts tell you to wait at least 60 days before inquiring. We actually advise 90 days. The posts are busy, so if you make yourself or your attorney a pest, the post will simply deny the visa.
5. Once you get your visa, you buy your tickets. We advise that you enter during working hours on week days, even if those tickets cost a bit more. This is because on week days and working hours the Customs and Border Patrol personnel are more senior, hass more experience and has seen your type of case before
6. Please note that if you do get into Secondary Inspection, this is not an adversarial encounter. Yes, it is difficult to wait hours after arriving from an International destination. However the visa officer is simply doing her job.
Also please note that Canadians are given I-94s. Please check your I-94 status here. Please do not overstay your visa.

Please contact Annie Banerjee at Banerjee & Associates for more information.