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

Current Issues in Business Immigration Law

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

Stem OPT:
Status: Students cannot have more than 90 days if the OPT is for 12 months
Students cannot have more than 120 days if the OPT is for 17 months
Students cannot have more than 150 days if the OPT is for 24 months
Make sure that the job is in the area of your subject

OPT extension-Third party: There is a fight between Citizenship and Immigration Service and Immigration and Customs enforcement about whether third party placement is allowed on the Stem extension. The problem is not who is wrong or right. The problem is that if using this excuse the Citizenship and Immigration Service denies the H petition, then the F student might get out of status.

CPT: Be very careful with the day one CPT. The Citizenship and Immigration Service will ask to prove that : 1 Your course needs you to have practical training. Also note that the schools MUST have classes as well. You cannot have a job say in a different city as the schools. Very often these are problematic and Citizenship and Immigration Service will rule that you do not have status. If you are out of status for
General advice: Keep in touch with the DSO at ALL times.

H-1B –Request for Evidence : Specialty Occupation-–The key to winning this is Expert opinion. However in third party placements, the Citizenship and Immigration Service wants an expert who has knowledge of the end project. We use folks employers know, rather than pay for stock expertise letters
H-1B Request for Evidence : Pay Level: This was more of a last year’s issue. We had an amazing brief that we wrote and won most of our specialty occupation Requests for Evidence. General advice: Stick to whatever the Employer states in the Labor Condition Application. Be careful for certain SOC codes.

For more Information visit Banerjee & Associates

Visa and Security checks.

By | Business Immigration, Houston Immigration, Immigration, Security, Travel, Uncategorized | No Comments

A huge power company client of mine told me that one of their vendors have a policy of not hiring non immigrants. However with the low employment rate, US Citizens or Green card holders cannot be found to fill the positions. The current administration has created this fear of immigrants. This is the process of how much screening goes into getting a US visa, and it is more stringent than any screening done for USCs.

1. In most types of visa the first process is filed with the Citizenship and Immigration Service. I tell my client that they are omniscient, because they can see expunged criminal history, which a State police cannot.

2. When a visa applicant goes to US consulates to get a visa, the Department of State does various types of checks. Apart from all 10 fingers and facial recognition, the Department of State also does various types of name checks, etc. These checks have various names: NCIC, Condor Sao, Mantis SAO, etc. They have intelligence that we will not have. Again, they work with various intelligence agencies, and the process has become extremely stringent since 9/11. If there is any doubt whatsoever, then visas are refused. This might explain why we have not had legal entrants entering with visas since 9/11 have not committed any crimes.

Look these up: https://en.wikipedia.org/wiki/Security_Advisory_Opinion
https://www.fbi.gov/services/cjis/nics
State govts do not have access to these

3. At their Port of Entry, the Customs and Border Patrol does another security check with all 10 fingerprinting and facial recognition. The database that all 3 agencies use are secret and private citizens do not have access to this.

4. It is a violation of employment law to discriminate against someone who the federal Govt has authorized to work. Companies can only discriminate if an individual is not qualified to do the work.

For more information, contact Banerjee and Associates

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.

For more information visit Banerjee and 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

A Very Republican solution to DACA/DAPA

By | Business Immigration, DACA, DAPA, Houston Immigration, Immigration, Immigration Policy, Uncategorized | No Comments

Let me be completely honest with you—-I am not an emotional person. I am hard on everyone and operate on pure logic. So I am not going to argue that folks bought here illegally or entered illegally cannot assimilate into their home country. If Americans of any race can live in Mexico, so can they. I am not a bleeding-heart democrat nor am I an evangelical, looking for extra followers for my religion. What I say is just the rational thing to do.

Very few people come to the USA without papers, looking for something illegal to do. They come here because they find work in the US, rather than in their country of origin. If they did not get jobs, they would go back to their home country, simply because cost of living is higher in US. So we depend on them to clean our houses, cut our grass, etc. I pay about $22/hr per person to clean my house. I am willing to pay more. But I want to come home to a clean house. I had some American maids, but their quality of work was poor and in fact horrible in comparison to what I get from the undocumented workers. American Citizens simply don’t work hard.
If I wanted a foreign nanny, I could get an Au pair. But there are NO visa categories for maids, cooks, gardeners, construction workers. There are limited quantity of fruit pickers and restaurant workers. On a side note, it is important to note that when there was a waiter shortage in Mar A Lago, the number of H-2Bs were increased just to accommodate that shortage.

The immigrants working here with no visas, should be given visas because (1) They have a job; (2) They need to pay taxes. Although many do pay taxes, they don’t have to. Would anyone pay taxes if they did not have to? (3) they need to get auto and health insurance. Otherwise they are just draining our resources.
The undocumented came here to work. They do not need Asylum, or Family Immigration (or the recent term coined by the current administration being “chain” migration.) They work. So unless the US can give us citizens who can construct our houses, clean them, care for our lawns, they have to create visa categories for these types of jobs. If Mar A Lago needs foreign waiters, we need foreign workers to do these jobs. If you create sufficient number of these visa categories and folks still come in undocumented, then yes, call them illegal.

For more information call 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

P-1 Athletes

By | Business Immigration, Immigration, Uncategorized | No Comments

1. Who Qualify?

1) Individual Athletes
2) Athletes who are members of a team or league has to:
3) Amateur Athletes and Coaches

2. Requirements:

1- An individual has to be internationally famous
Coming to USA to compete in competitions

2 Athletes who are members of a team or league has to:
Be a member of a team that is affiliated with 6 or more sports teams. These teams total revenue should exceed 10 million

3 Amateur Athletes and Coaches
If they are part of a team or franchise that is located in the US, and is also a member of a foreign team in their country that is affiliated with at least 15 teams.

3 Documents:

1. Contract with the US team

And at least two of the following:

Participated significantly in prior season’s sport team or College team
Participate in the National or International Event
A letter from a member of a governing body; member of sport media or a person recognized in sport about how the athlete or the team is internationally recognized
Evidence of a high rank
Evidence of a significant win, or award

 

For more information contact Banerjee & Associates

Employment Based I-485 Interviews

By | Employer/Employee, Immigration, Immigration Policy, Uncategorized | No Comments

Who will get the interview?

Anyone who filed the I-140 application after March 17, 2017

What is the process?

The Service Center, ie Texas or Nebraska Service Center will send the case to National Benefits Center. The NBC will send the files to the various field offices.
Will the field offices Adjudicate the I-140 ?
According to Citizenship and Immigration Service, the field office will not adjudicate the I-140. But the service center will check for:
• Authenticate documents—ie Actual educational documents, Employer’s taxes, or Beneficiary’s paystub proving “ability to pay.”
• Family member’s relationship to the principal beneficiary, ie spouses will be interviewed for whether it’s a valid marriage—Take Original marriage certificate, birth certificate, joint documents like joint children/mortgage, financial documents
• Eb-1 and NIW will have to take all their original works.
• Take all status documents—–ie original H-1B approvals, and/or Employment Authorization Document cards, Sevis cards, etc.
• Valid Passport and I-94
• Paystubs and W-2—- a letter from the Employer and the Supplement J
• New Medical, if original medical is a year old

Interviewing Officer:

Field Officers adjudicate family petitions. They are used to adjudicating relationships. In our previous appointments with Employment cases, we have found the interviewing officers do not have knowledge of any employment law. I have had to point out the law on several issues. American Immigration Lawyer’s Association concurs. Although Citizenship and Immigration Service is saying that they have “trained” their officers, American Immigration Lawyer’s Association is recommending a lawyer be present, at least for the first few months.

Field officers may not get the concept of “future employment”, and definitely wont be able to define NIW or EB-1.

 

For More information, contact Banerjee & Associates