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

Suggested Reforms for H-1B and L-1

By | Citizenship and Naturalization, Commentary, H1-B, Immigration Policy, Immigration Reform, L-1, Uncategorized | No Comments

Let’s face it, like many other Trump promises, the ten point Immigration plan is not going to happen. There’s not going to be a wall, not going to be selective Immigration from certain countries, not going to be a Muslim registration. Why? Because we cannot go back 2000 years when China was building walls.
As an Attorney practicing Immigration law for over 20 years, I have some suggestions for Business Immigration Reforms.
I will confine this blog to reforms in the H-1B and L-1 categories.
First and foremost, we need to overhaul our entire Immigration system. However, Immigration and Health Care is too huge to overhaul in one step. It should be done in baby steps.
For Immigration, we should start with Business Immigration first. This is because both Democrats and Republicans agree on most of the issues.

H-1B:
Eliminate the quota, but become stricter on enforcement. Make employers PROVE that the job is there, and it is real. Make site visits mandatory where the Sponsor has less than 200 employees. If an H-1B employee lose his job, he will get an automatic 6 months to stay in the US. After that time, if he has found no jobs, he has to leave. He can also switch to a dependent visa like H-4, but cannot switch to a student visa (F-1), without going back to the home country. If an Employer is found to have changed the resumes of the Employee in order to get a job for that employee, then both the Employer and the Employee will be barred from future filings for 5 years. The Employee will never be given the chance to adjust status through employment and will be deportable.

L-1A:
Focus more on viability and less on job description. If a Japanese restaurant owner has to oversee cooks and waiters who are not “Professional” employees, it’s no big deal. What matters is, is the restaurant viable? Is it making money, and will it survive? If a large multinational, foreign Company, (for instance let’s say Suzuki) wants a small office in the US, which coordinates their North American business, then they should be allowed to have an L-1. Even though they may not be creating US jobs, the fact that they are doing business means that they are helping US population in some way. When the time comes for the Company to grow in the US, they will grow. But by denying them the right to have a small office, we will actually drive business to Canada or Mexico. Whether the manager is managing a function, or doing full time managerial job is immaterial. Good managers do everything. If you are the CEO of a profitable company, you can clean a room, if it looks bad, and you have the time. It won’t kill you.

L-1B:
The focus should be on the technical aspect, and not so much on the proprietary aspect. We have a shortage of technical people in the US. So even though it’s fair to say that the job has to be proprietary to the Company, the focus should be on whether the Employer can get anyone in the US to do the job with some training. If the Company is viable and profitable, then we should let the Company prosper with their L-1B candidates. After all, they will pay US taxes.

For more information contact Banerjee & Associates

EAD Extensions

By | Commentary, Immigration Policy, Uncategorized | No Comments

A common pitfall for Employment Authorization Document Card is that

  1. The Employee applies.
  2. The Citizenship and Immigration Service takes a long time to adjudicate the application
  3. The Employment Authorization Document expires
  4. The Employee cannot work legally after this day, and loses the job.

I have had individuals leave the country on this issue. There is no way to expedite this, and although Citizenship and Immigration Service is required, by regulation to adjudicate the card within 90 days, sometimes that does not happen.  Understandably, the Citizenship and Immigration Service is inundated by large volumes of Employment Authorization Document Extensions.  Nationals from India and China have long wait lines before they get their Green Card (Permanent Resident Card), so they need to renew their cards frequently.  The same is true for DACA, TPS etc.

This problem has been solved by the recently enacted changes to the Immigration code.  Enacted on November 18, 20165, it goes into effect on January 17, 2017, 8 CFR § 274a. 12 (c) (35-36) states that due to “compelling circumstances” Employment Authorization Document will be extended for 180 days if:

  1. The individual files a request to renew his Employment Authorization Document prior to the expiration date
  2. The individual is requesting an extension under the same category as before, for example DACA, I-485 pending, TPS, Dependent visas, like H-4, L-2, or J2.
  3. However, the underlying status needs to be valid. This means for example if someone is divorced and does not have the H-4 or L-2 status anymore, then this provision does not apply

The receipt notice of the Employment Authorization Document serves as proof of such extension for 180 days

Hopefully the Citizenship and Immigration Service will adjudicate these cases by 180 days

 

Please call 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.

Both parties can agree on Immigration Reform

By | Commentary, Immigration Policy, Immigration Reform, Uncategorized | No Comments

My recommendation for the next President regarding Immigration Reform:

1 Unless the same party is in charge of the legislature and the executive, Comprehensive Immigration Reform is NOT going to happen. Reform Immigration piecemeal
2 Tackle Business Immigration first—-both Republicans and Democrats love this. Silicon Valley and fruit pickers jointly agree. Construction Companies and Chicken Processors agree
3 Concede to Trump’s agenda to reduce the Business Immigration backlog
4 Take away H-1B quotas and let market place dictate demands. If an employer does not have a valid job offer and files for anyone, make employer pay a fine and bar them from sponsoring anyone for 5 years
5 Introduce legislation where ordinary folks can sponsor cleaning ladies, pool cleaners, lawn maintenance guys as Guest workers—-with visas renewable every 2 years. Everyone needs to receive a fair salary. Everyone has to pay taxes
6 If guest workers can prove continuous employment after 10 years, make them pay a fine and become legal residents. Then they have 5 years and the exam to become citizens
7 Reduce the quota for family Immigration, unless it’s a spouse of USC or a Permanent Resident. If Immigrants want family connections, they can go back. This issue is hotly challenged by Republicans and it stands to reason. Parents are usually older and tax our already falling apart health care system.
8 I feel that if the above rules are implemented, then illegal immigration will slowly diminish. People won’t stay in the US, unless they have a job offer. After 2 years of implementation, the border issue can be tackled.

Written by Annie Banerjee, for Banerjee & Associates

Immigration and Assimilation

By | Assimilation, Citizenship and Naturalization, Commentary, Immigration Policy, Uncategorized | No Comments

My US born children have often been asked, “Where are you from?” Houston, is often not an acceptable answer to the questioning party. Its usually followed by, “Where are you really from, or where are your parents from.” This probably happens to US born non white children. I remember that American Immigration Lawyer’s Association had a blog about how important immigration is when Jeremy Lin had his “Linsanity” moment. Yet Lin was born in the US. However, the question still arises, does Immigration demand assimilation?
Color cannot be changed to “look” American. However assimilation was a big question since our country’s history. The Immigration and Naturalization Act of 1906 limited Immigration to “Caucasian” descent only. US v Bhagat Singh made a case that Mr. Singh was Caucasian of Indo European descent. The SCOTUS held that even though he might be of Aryan race (which they said was probably intermixed with Dravidian blood) Immigration was still impossible because he would not be able to “assimilate” into the American society. That made all people of Indian descent, including the father of Amar Bose, the creator of Bose Speakers, illegal.
However with successive waves of immigrants from England, France, Germany, Ireland, Italy, all brought their culture and their food, and assimilated into the melting pot of American society.
The US has a melting pot philosophy, while countries like Canada or France have a Cultural Mosaic. The difference is whether the country considers itself homogenous vs heterogeneous. Proponents of Multiculturalism decry Melting Pot theory, yet the Mosaic system has been shown to cause more discrimination. In a Mosaic system, the majority always think they are better than other groups. Yet, in modern times, it can be argued that assimilation is difficult, because the world is more connected. Immigrants can easily keep in cultural contact with their homeland via the internet, and thus create more of a mosaic society living in their own cultural world, and not embracing the “American” culture.
Whatever the case may be culturally Immigrants have made USA very diverse. You can get superb food from practically all major countries in your own city. Birth of fusion culture arises everywhere, from food trucks, to rock music. This year more than 1 million people applied for Citizenship, proving that most Immigrants are happy and love America.

Written by Annie Banerjee, for Banerjee & Associates

DAPA/EXTENDED DACA DEAD

By | Commentary, DAPA, Immigration Policy, SCOTUS, Uncategorized, Visa | No Comments

Since Comprehensive Immigration Reform was not likely to pass, President Obama passed a series of Executive Actions to remedy some of the harm caused by immigration inaction. Originally DACA (Deferred Action for Childhood Arrivals) was published in 2010, which basically said that Kids brought over into United States before their 16th Birthday and before 2007, and graduated from High School or are in school, would not be deported. They would also receive work permits which would enable them to work, get Driver’s Licenses, etc.

In November of 2014, President issued another Executive order granting the same benefit to DAPA (Deferred Action for Parents of Americans). He also extended the DACA to include individuals who came before 2010, and under the age of 31. However that executive action also had other provisions, which both Democrats and Republicans relating to Business Immigration. Most notably H-4 spouses of H-1B holders who has an approved I-140 can apply for work permit. Other Business Immigration visas adjudications would standardize adjudication by Citizenship and Immigration Service memorandum. Please note that these Business Immigration provisions are in place and both Democrats and Republicans agree on these provisions.
State of Texas sued on grounds that DAPA and DACA exceeded the President’s authority. The Supreme was deadlocked 4/4 on the case in June of 2016. The Obama administration filed for another certiorari, but SCOTUS has refused to hear it this coming year when the new Justice is presumably appointed.
The SCOTUS did not give any reason for this refusal. Maybe the SCOTUS thinks that President Obama will not be in office, any Executive Actions he could have taken would be moot. Maybe the Court wants Congress to tackle Comprehensive Immigration Reform. Whatever the case might be, we will be left with people driving without a license or insurance, people falling sick with no health insurance, and people earning without paying taxes. Yes, it makes no sense. This is not a Green Card (Permanent Resident Card), it’s just a work permit so that undocumented aliens can pay their fair share for living in our midst.
For more information contact Banerjee and Associates

H-1B lottery

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

Every year as winter starts to fade into spring, the Citizenship and Immigration Service receives thousands of petitions for H-1B visas. 236 thousand petitions last year to be precise. H-1B visas are used by US Employers to get highly qualified professionals, mainly in Science and Computer fields, from other countries. The Congress has imposed a quota on new H-1B visas of 65K every year (plus 20 K for US Master’s Degree holders). So every year in mid-April, the Citizenship and Immigration Service does a lottery and only the lucky 65K + 20 K get in.

The chances of getting into the lottery in 2016 is a little more than one in three. As our country grows, its needs grow resulting in more and more petitions and less chances for petitions to be selected. If an attorney prepares the H-1B file, the employer loses the attorney’s fees if they do not get into the lottery. Thus big companies like Google, Facebook, Microsoft and other Silicon Valley Billion dollar company can afford to lose money and file thousands of petitions every year. Google for instance filed 9280 petitions last year. That’s like buying 9280 lottery tickets rather than one that the small employer can afford. And although the lottery probably is random, the probability for winning it is higher if you buy more lottery tickets. And yes, we business Immigration attorneys earn a lot of money during that process as well.
The Citizenship and Immigration Service always maintained that the lottery process was fair. However, two companies in Portland Oregon—-Tenrec Inc. and Walker Macy LLC has filed a lawsuit against the Citizenship and Immigration Service to make the lottery process more transparent. A federal judge has ruled that the plaintiffs have standing to sue. What the plaintiffs’ are asking for though, is to not close the accepting of Petitions for the first 5 business days in April, but prolong it year long. That might actually be worse in creating log jams and increasing processing times for H-1B petitions. And American Immigration Lawyer’s Association has also filed a FOIA suit to make the lottery process more transparent.
Although greater transparency is desired from any Governmental organization, mere transparency will not solve the H-1B problem. The market place works on a supply and demand theory. The artificial quota system demands that employers project their need in the beginning of the year, think about the lottery and apply as many petitions as possible. Similarly highly educated tech employees in India and elsewhere seek out employers and in many cases pay them to file their cases. But doing away with the quota requires a Congressional Act, and as we all know, Congress does not act.

For more information call Banerjee& Associates.

US Citizenship

By | Citizenship and Naturalization, Commentary | No Comments

Today the United States Constitution was signed into existence by our Founding Fathers. Thus Sept 17 is celebrated at Constitution Day and Citizenship Day. But what does American Citizenship mean? American Citizenship, like citizenship in most countries is a bunch of rights and obligations, derived from the Constitution to people who are subject to the jurisdiction of the United States. USA ensures that the people are protected and lead a happy life. The citizens elect the Government to run the State, and serve in the jury.
Citizenship in the United States is derived either through birth or by Naturalization, when one lives a certain length of time in the United States as a legal permanent resident. Naturalized citizen have to take a test of English and knowledge of Civics, and prove that they have good moral character.
Yet USA is a nation of Immigrants. As each wave of Immigrants came into this country, they settled down and became Americans. They developed a deep nationalism, and looked down upon the next wave of Immigrants. We have had waves of Germans, Irish, Italians, Asians, and South Americans. Each wave blaming the next for being “un-American”. Yet the general population has been very accepting of immigrants and they have assimilated quickly. Unlike countries like Canada and Europe who have the mosaic system, United States’ Melting Pot system creates better assimilation and a sense of nationalism among immigrants.
Citizenship also comes saddled with popular notions of patriotism. If someone does not stand up for the national anthem, someone protest a flag, are they being unpatriotic and hence not a worthy citizen? Similarly, a large group of people think that good citizens need to speak English and eat hot dogs and apple pie to be “real” Americans. And good citizen in that notion is completely subjective. It’s your own to make, whether it’s the notion of protecting the liberty that’s guaranteed by the Government, or whether as some put it, their forefathers have died for the country, the flag and the anthem.
For more information contact Banerjee & Associates

Entrepreneurs Visa

By | Commentary, Immigration Policy | No Comments

In 2014, President Obama issued an Executive order making it easy for Entrepreneurs to get visas. However until this past Friday, the Citizenship and Immigration Service (hereinafter CIS) did not issue any guidance as to how this could be achieved. For instance, a computer science major foreign student, studying in the USA, might come up with an idea that would revolutionize current thinking. They might want to build a startup. Right now the only option is an H-1B visa, which is restricted to only 65,000 per year and subject to a lottery. But even if an entrepreneur manages to win that lottery number, the CIS will frown upon the fact that the entrepreneur will own the company that is petitioning for him. They also want the US entity to show capital to demonstrate the ability to pay the Entrepreneur/Employee the proposed H-1B salary. The problem is that banks/venture capitalists won’t lend capital to an entrepreneur without legal status. So it’s a catch 22 situation that doesn’t work.
Under this proposed rule, DHS may parole, on a case-by-case basis, eligible entrepreneurs of startup enterprises:

Who have a significant ownership interest in the startup (at least 15 percent) and have an active and central role to its operations;
Whose startup was formed in the United States within the past three years; and
Whose startup has substantial and demonstrated potential for rapid business growth and job creation, as evidenced by:
Receiving significant investment of capital (at least $345,000) from certain qualified U.S. investors with established records of successful investments;
Receiving significant awards or grants (at least $100,000) from certain federal, state or local government entities; or
Partially satisfying one or both of the above criteria in addition to other reliable and compelling evidence of the startup entity’s substantial potential for rapid growth and job creation.

Under the proposed rule, entrepreneurs may be granted an initial stay of up to two years to oversee and grow their startup entity in the United States. A subsequent request for re-parole (for up to three additional years) would be considered only if the entrepreneur and the startup entity continue to provide a significant public benefit as evidenced by substantial increases in capital investment, revenue or job creation. The notice of proposed rulemaking in the Federal Register invites public comment for 45 days, after which USCIS will address the comments received.

Note:
1. The proposed rule does not take into effect immediately. It typically takes the Government quite a few months after the comment period to adopt the rule. I personally don’t think this will happen before 2017
2. The rule does not grant permanent status as of now. It just gives temporary stay of up to 5 years
3. Both the Democrats and the Republicans support this rule.
4. This would have been law, due to bipartisan support, but the Democrats wanted “Comprehensive” Reform and not the piecemeal legislation
5. Thus I expect this rule to continue no matter who our next President is.

For more information contact Annie Banerjee