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

 

The Immigration Legacy of President Obama

By | Commentary, DACA, H1-B, Houston Immigration, Immigration, L-1, Uncategorized | No Comments

On this last day of Obama’s presidency, I want to, no need to, look at all the Immigration actions he took, including ones that were the right thing to do, yet made him unpopular with his party.
DEPORTATION:
He has been called by Democrats as the “Deporter in Chief”. Yes, he deported more people than anyone else. But let’s be clear, we ONLY deport criminals. These are people who have come in illegally, or are not yet citizens of the US, and they have committed a felony. If these people get a lawyer, the process stretches out indefinitely. Do we, as a society need more felons, or drug users? I applaud Pres. Obama on standing up to his party.
DACA:
The legislature would not cooperate with President Obama and openly said that they wanted him to fail. Yet, despite that, he started the Deferred Action for Childhood Arrivals through executive action. This makes sense, because these people were educated by us, the US Taxpayers. They had to have at least a high school diploma and have no criminal records. If we don’t deport them, (we simply don’t have the resources to), you might as well let them earn and pay taxes. They get Driver’s license and car insurance. I do hope this program continues with the next President, because if this is scrapped, we will all lose.
ENDING CUBANS WET FOOT DRY FOOT POLICY
Again, breaking with the Democratic Party ideal, the ending of the absurd policy of Cubans getting Immigration as soon as they land in American soil. Unlike the 70s, when actual Cuban refugees came through, in the 80s, Castro opened Mariel Island, from where people could come by boat to Miami. Castro also opened up the jails and mental asylums. So people coming into Florida were either hard core criminal or criminally insane. Others came in from different countries and since they were born in Cuba, they were given residencies, but did not suffer any hardship from the Castro regime.
BUSINESS IMMIGRATION
The Democratic Party does not favor Business Immigration. Nancy Pelosi once said that businesses should pay the filing fees of the illegal Immigrants. But Pres Obama was hard where he needed to be, and soft in other places. In 2010, under his administration, the Citizenship and Immigration Service introduced the Control memo, which along with the Semieo case has been helpful to cut down on H-1B fraud. On the flip side, Obama with executive order has given H-1B’s spouses work permit, if the H-1B had an approved I-140. That helped save a lot of marriages. His executive order also clarified and simplified L-1 filings.

Thus the 43rd and 44th President of USA did what was fair and just despite opposition from both parties. Pres. Obama, you are my President, you always shall be.

For more information contact Banerjee& 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