H-1B multiple Filings

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

The Policy memorandum on H-1B that came out on March 23, 2018, and a lot of you might have heard about yesterday, does NOT affect all Consulting Companies. It affects the case of Multiple filings by related companies for the SAME employee.
The case it is based on: Matter of S, there were two companies: One was names S and the other was names C-LLC. They both filed a petition for beneficiary X for the same end client.
Although Company S and C-LLC had different ownership, different Federal Employer Identification Number, different locations, both were filing the same petition for the same employee ie X for the same end client. What happened here was that S had a contract with end client. S filed for X with end client. Then S did a sub agreement with C-LLC. C-LLC then filed for X as well, to increase X chance of getting in. Both petitions got in: ie S and C-LLC. So C-LLC withdrew their petition. The AAO still ruled that this violated multiple filing rule for H-1B and denied the petition of S.

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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

Business Immigration in 2017

By | Business Immigration, Citizenship and Naturalization, H1-B, Houston Immigration, I-94, Immigration, Immigration Policy, Immigration Reform, Uncategorized | No Comments

In 2016, before the elections, my staff and I had a discussion as to what Immigration will look like in 2017, when Hillary wins. One of them asked, “what if Trump wins”. I brushed her off, saying, “oh, then we all will be annihilated, we will think survival, not immigration.” Of course, that was a joke, but here we are after a year with Trump in the White House.

I will confine myself to changes in Business Immigration during this year. In November of 2016, the US published its “final rule” on Employment based Immigration, an Obama era legacy, making life better for most business non immigrants. With a stated purpose of helping US Employers retain highly skilled individuals, the rule clarified porting, grace periods and other issues in non immigrant and immigrant business visas. So the year actually started with this gift from President Obama.

Of course that euphoria was short lived. Around March of every year, businesses get ready to file the new H-1Bs. Each year the quota for new H-1B is 65,000 +20,000 for US educated personnel. Since more than 200,000 people apply, there is a lottery held. One can file 6 months before the Government year, which starts at October 1. Therefore most petitions are mailed on March31, to reach Citizenship and Immigration (CIS) office on April 01.

On March 31, USCIS issued a “guidance memo” where they said that they do not believe that a level I wages for Computer Professionals does not qualify the employees as “professional employees.” While I do understand the Government’s concern about Computer Consulting Companies (See below), this memo is wrong for so many reasons.
1. Wage levels are set by Department of Labor, (not CIS). This memo is thus ultra vires.
2. To selectively have this for one particular industry violates the rule of law.
3. This memo is not backed up by either law or by a notice and comment period, and thus violates 14th Amendment
But then, the Constitution is not a necessary text for Trump supporters. Subsequently many if not most of those consulting company jobs, which were picked in the lottery, was denied. All those quota numbers were wasted.

Now lets look at the way big business gets its computer business needs. Lets say Macy’s wants to build a new website that would allow customers to browse on what is available in their local store and have something held for them before customers went out to shop. Macy’s will need to build a program. That is a temporary job. The Macy’s Corporation does not want to put in the time and effort to secure these temp jobs. So Macy’s will have a contract with a vendor to provide their computer needs. Sometimes these vendors are intermediary vendors, and they have contracts with sub vendors to get the computer professionals.

Now like many businesses (think Greek diners or Chinese laundromats), the business of supplying Computer Professionals were held by Indian. Not even the whole of India, it was utilized mostly by one state-Andhra Pradesh. Many Colleges there had poor standards. Many systems analysts did not know how to do the job and learned “on the job”. Companies like Macy’s are too big to monitor this. Besides many computer consulting companies were engaged in unethical business practices.

The Computer Consulting owners say that American grads don’t want to do these jobs. The lifestyle is hard—-they need to move from one location to the other with the projects. Usually they have a home base, and work long hours from Monday to Thursday. They fly home on Thursday and leave Sun day night.
Whatever the reason is I think the Government has a legitimate interest to cut back on the fraud. The Obama administration tried to deny H-1Bs with the Control issue, saying that those employees work at end client’s places (Macy’s) and are therefore not employees of the H-1B employer. However that has not had much success, since its inception in 2010.

I do think the current administration is in the correct path by insisting that Computer Consulting H-1B jobs are to be paid more. At least that will ensure that the US gets properly trained individuals. However the means which the current Government took to undertake this was underhanded and violated the Rule of Law.

 

For more information contact Banerjee & Associates

Recent Trends in Business Immigration

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

Much has been said about undocumented Immigration, Sanctuary cities etc; but we hardly hear about business Immigration. The recent trends in Business Immigrations are:

H-1B
The recent Request for Evidence are given for Wage level 1 rates.
Pro: We do need higher level Professionals in the US instead of entry level professionals.
Con: Employers for New H-1B don’t know who they are getting and how they will work. Its difficult to promise them higher wages without seeing their performance
Solution: Do the lottery before we apply. That way we know how much to pay or whether to even employ that person
However for petitions with a higher wage, are getting approved.
L
Although the standards are same, the burden of proof (which the applicant has) seems to have increased. Again small Companies are at a disadvantage compared to large companies. However Requests for Evidence are also being doled out for larger publicly traded Companies

PERM-Labor Certification

Right now, if one applies correctly, perms are getting certified in about 5-6 mts. Same with I-140. Not seeing increase in audits.

I-485 Adjustment of status

Although not more difficult, Adjustments both Employment and Family based are taking a lot longer to process.

For more information call Banerjee & Associates

Request for Evidence in New H-1B cases

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

The season for new H-1B Request for Evidence is approaching. Because we cannot control who will make it to the lottery, petitions are often filed in bulk. And Citizenship and Immigration Service looking at small company H-1Bs, issues Request for Evidences, and very often a denial after that.
Its always the small companies that get these insane Request for Evidences. They state:

1. This is not a specialty occupation: Commonly given for Computer professionals, there is no objective criteria to define this. We have had the exact same complex job go through with one adjudicator, and not with another. Generally though, if the pay is high, the petition does go through. The problem is that while filing, the petitioner does not know who will get in, and does not want to promise a lot of money for someone who they may not like.
2. The Beneficiary is not qualified: Recently the Citizenship and Immigration Service has been holding that anyone with a Bachelors in anything other than computer science is not qualified. Unless they have more than 12 years of experience.
For both these above types of Request for Evidence, one can give expert opinions. But often, especially with small Computer Consulting Company, the officers have already made up their mind, and will deny, no matter what evidence you give.
I know small Computer Companies are very often fraudulent, and I am not defending them. I do wish though that the Citizenship and Immigration Service would give objective criteria and also allow substitution in the lottery process.

For more information, contact Banerjee & Associates

Travel Ban-Take 3-The Supreme Court Episode

By | H1-B, Immigration, SCOTUS, Travel, trump, Uncategorized, Visa | No Comments

Suppose you have a petulant child who hates your brother Jim and does not want him to visit your home. You have shut the child down, but the child just whines and screams. You know reasoning does not work. So you just say, OK, Jim cannot come for no reason. But if Jim has a reason, he can come. You are giving your child a lollipop. The child shows off his lollipop. The next time, Jim comes, you tell the child, but Jim wants to visit family. That’s a reason. And he will not come for no reason. I promise. Give the child another lollipop and hope the child forgets about this in 120 days.
That sums up the Supreme Court’s decision to lift the temporary restraining order against Trump’s travel ban. It has no substance, does not really impact anyone, and gives Trump his lollipop.

As I have said in my blog before, there is no justification for the travel ban on 6 countries: Syria, Iran, Yemen, Somalia, Sudan and Libya. Are there terrorist cells in these countries? Yes, of course. But the procedures in place already have the US Consulate performing extreme security checks before an individual is granted visa to enter the US. At one point in time, during the Obama administration, some suspected terrorists entered the US. They were deported and Obama suspended travel for these countries until a more thorough vetting procedure was implemented. But that was done, and no suspected terrorists have entered since. So clearly Trump just want to appease his intolerant base with the travel ban

The Supreme Court removed the temporary restraining order with a lesser temporary restraining order. The people not impacted are:

1. Anyone with a current visa—even a visitor’s visa issued before June 14, 2017
2. Anyone with a work visa-H, J, L, O,P, R I, F
3. Anyone with an immigrant or non Immigrant (K) family based visa
4. Diplomats

The Only group that is NOT covered are foreign tourists who are coming to USA for visiting sites in the United States. But seriously, how many tourists from these 6 countries do we find, just visiting the Grand Canyon or Disney Land? They have enough problems on their hand to think about expensive vacations. And the super-rich, who can afford to, does have either business or family connections.

B visa holders should bring with them documents showing family ties or business ties. Attending a conference, or lecturing is a valid business tie, and “mother in laws” are valid family relation. (Supreme Court said this, not me). Other visa holders should bring their visa related documents just to be sure.

So in effect, it’s a useless ban. It does affect Muslims, because Muslims are a majority in these countries. Trump said he had “clear victory”,  and the ACLU vowed to fight it.
This ban creates fear among many Muslim legal travelers. Attorney’s make money playing into that fear.

Other than that, it’s just sound and fury, signifying nothing

 

For more information call Banerjee & Associates

How to cut waste for the H-1B program

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

We went through hectic preparation and filing in March; held our breath in April for the lottery results. And now we have finally come to the very painful end of the H-1B process. We are getting the actual petitions filed by us, which did not make the lottery; being returned to us by Citizenship and Immigration Service.
Because H-1B have a high burden of proof, the files are big, and it costs the Citizenship and Immigration Service a lot of money to send it back to us by Propriety mail. Although tax payers don’t have to pay for it, it’s still a waste of resources.
What Citizenship and Immigration Service should do to make the process more efficient is:
1. Take names of the employer/employee, Date of birth, evidence of education and do the lottery. We had one client who got selected twice, thereby taking two visa numbers.
2. Once the lottery and the alternative list is done, we need to file before September 30.
I realize that this is not in the interest of Immigration Attorney’s pocket book. But the above is the best solution. However, if Citizenship and Immigration Service wants to enrich our, (Attorney’s) pocketbook, then it could just send the rejection letter and the checks. They could actually e mail it to us, Attorney’s or to Employers.
To see a tear, (a rejected petition) enclosed in a jewel (expensive Priority mail boxes), makes it that much harder.

For more information contact Banerjee & Associates

You did not get into the H-1B lottery. Now what?

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

By now the Citizenship and Immigration Service has stopped giving receipt notices to the lucky few who got into the lottery.  If you have not received a receipt notice by now, chances are that you did not make it to the lottery

Please note that it is extremely important to maintain your non immigrant status. You can continue in your F-1 or H-4 visas. You may extend your OPT for the allotted time

If you (or your spouse) are not born in India or China and you have time left on your OPT, the Employer has the option to jump straight into the PERM-Labor Certification and Green Card (Permanent Resident Card) process. You might not need to change status, and might get the Green Card (Permanent Resident Card).

If you want to work, an H-3 Trainee visa may be possible. But your job needs to provide details of such training, including course materials. This is better if your job already has a training program on hand

Many nationalities (except Indians) can have a E treaty visa. If you are a Canadian or Mexican Citizen, a TN is possible. Other non immigrant categories like L, or O might be possible.

Also note an academic institution of higher education, (like a college) or a non profit research organization can sponsor you on an H-1B visa any time because they are not subject to the cap.

You can still file the H-1B next year.

For more information, call Banerjee & Associates

Sound and Fury signifying Nothing

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

The president came out with an executive order “to Buy American and hire American” It calls for changes to be made in the Department of Labor’s Labor Condition Application system. The Labor Condition Application system ensures that foreign workers are paid equivalent to US workers. But Trump presumably wants only the “brightest and the best” making a high salary.
While that is a good policy, it will be seen if the free market system can handle that. The Computer Consulting business, usually pays their employees over 100K. The problem is that their jobs require a lot of travel. The employee moves from project to project from location to location. While we do have Computer Professionals in the US, they want a lifestyle driven job that will allow them to stay in one place. We simply do not have enough Computer professional in the US. Just like picking fruits, it’s a hard life. But the crackdown might result in more outsourcing thereby reducing our tax base.
So in the end this Executive action sounds great, but may not benefit Americans. And definitely not the kind of Americans who voted for him wanting jobs.
For more information contact Banerjee & Associates

H-1B Cap Count

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

On April 11, 2017 the Citizenship and Immigration Service did the lottery of the 2018 H-1B visa cap. Citizenship and Immigration Service announced today, that it had received 199,000 petitions for the 65k+20k cap quotas. Citizenship and Immigration Service has begun sending receipt notices.

If prior years is a guidance, we get receipt notices until about mid May. Then we start getting the rejections in the mail.

Keeping fingers crossed

For more information call Banerjee & Associates