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

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