IT Serve Alliance vs Cissna

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We all knew that Citizenship and Immigration Service was acting in an arbitrary and capricious manner in adjudicating H-1B cases. What we needed was a case and a Judge to tell them so. IT Serve Alliance vs. Cissna (hereinafter IT Serve) is that case.
Before we get into the case, let’s get the politics out of the way. This problem with IT consulting companies was happening from 2010—with the Neufeld memo on control. This was in response to a huge number of fraudulent cases being filed by computer consulting companies. This case does not give IT Consulting Companies a carte blanche to file whatever they want. The employee still needs to qualify in a IT related specialty, although now, I do think that an Engineering Degree in certain specialties might qualify—-depending on the degree’s nexus to IT. I still don’t think, for instance, a degree in chemical engineering will suffice for just an IT consultant.
Procedurally, the case is a combination of 30 cases. We will not deal with other procedural matters discussed in this case since it has no bearing on Employers or Employees. This blog is written to help H-1B petitioners and beneficiaries.
Jurisdiction:
This case came from the DC Circuit Court. Since Citizenship and Immigration Service is headquartered in DC, all offices of Citizenship and Immigration Service is bound by this decision. That stuff is for lawyers, and I can tell you its great for us. It takes away the way Citizenship and Immigration Service handled matters as a supreme dictator.

ISSUES
CONTROL:

We do not require the utterly stupid control letters up the chain to the end client. The court upheld the 1991 regulation which states that the employer must show the
1. The ability to hire, OR
2. Ability to fire, OR
3. To pay, OR
4. To Supervise, Or
5. To Control.

The Court noted that OR does not mean AND. Therefore some document showing the ability to do any one of the following will suffice. For a new or transfer, I think just an offer letter and acceptance will be enough. So say Adios to the 2010 Nuefeld Control Memo.

Specialized Knowledge:

The court held that Specialty occupation, as defined in 8 USC § 1184.1 is
Specialty Occupation is an OCCUPATION that requires theoretical and practical application of a highly specialized body of knowledge in the fields of human endeavor.
Therefore it is NOT the Job Description, not the JOB, but the OCCUPATION. The Court says, “Specialized Occupation would likely encompass a host of jobs, from trainee to expert, along with expert along with concomitant but different personal job duties.

As you know, there are four prongs for Specialty Occupation:
1. Baccalaureate of higher degree or its equivalent is normally the minimum requirement for entry into the particular position,
2. Requirement of such Degree is Common in the Industry
3. Employer Normally Requires a Bachelor’s Degree or equivalent in a related field OR
4. Job is Complex
This would take away the inane percentage of time that we would put into our job description.
The Court also did away with Defensor v. Meissner in a single footnote, (FN 13) so we would NOT require any bullshit from end client

ITINERARY
An Itinerary is not required. The court basically told the Citizenship and Immigration Service to give the required three years. The court says that benching employees is OK, as long as the employer continues to pay for that employee.
H-1B regulations do not address furlough. Therefore one can argue that the State Employment Law controls.
WHAT IT SERVE DOES NOT ADDRESS:

1 IT Serve does not address “Material Change” for Amendment, so Simieo is still good law. One have to file an amendment, but in doing so, would require less burden of proof
2 IT Serve does not address why some SOC Codes are better than others—-ie why Systems Analyst is suddenly not a specialized SOC. However a lawsuit will be filed regarding this issue, so stay tuned for future development

We will change our petitions to reflect this case. The Citizenship and Immigration Service should have new memos after this case, but I doubt that will happen under this administration, or until Steven Miller loses control.

Visitor’s Visa Extension due to CoronaVid

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Travelers enter the United States for visits either through a visitor’s visa or under a Visa Waiver Treaty (also known as ESTA, since they have to register online before travelling). In either case, everyone got stuck (Stung? ) by Covid and travel restrictions beyond their visa’s allotted time. What does this do to their status?
Here is my perspective:
Timing:
CoronaVid, travel advisory and airplane schedules are changing every day. So I would wait until closer to the the visa expiry date.
The Law:
B-1 visitors are advised to file an extension on form I-539
VWP and Satisfactory Departure: According to 8CFR § 217.3 9 9 (a) “If an emergency prevents an alien admitted under this part from departing from the United States within his or her period of authorized stay, the district director having jurisdiction over the place of the alien’s temporary stay may, in his or her discretion, grant a period of satisfactory departure not to exceed 30 days. If departure is accomplished during that period, the alien is to be regarded as having satisfactorily accomplished the visit without overstaying the allotted time.”

Many Field Offices and CBP offices are stamping the passport for 30 days extension.

Problems with the Law:

Obviously the law did not anticipate the Covid pandemic. The extension of B-1 visa via I-539 form is expensive and takes forever for the Government to decide. There is a chance, however unlikely at this stage, of a denial, impacting future travel. Note: File online, Citizenship and Immigration Service is relaxing those blue ink signature requirements

Satisfactory Departure is good for 30 days only and making an infopass appointment is very hard.

We have been hearing that Citizenship and Immigration Service might grant status without any filing until this crisis is over. We have not heard anything from Citizenship and Immigration Service yet

CoVid Updates

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Here are the recent updates for Covid:
1 The USCIS has suspended all interviews and naturalization ceremonies until at least April 1
2. USCIS has suspended Premium Processing
3. USCIS WILL accept scanned signatures and is not mandating “actual” ink signatures.

New H-1B registration

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1. Is the Citizenship and Immigration Service going to have the lottery first before submitting H-1B application?

Citizenship and Immigration Service said that New (FY 2021) H-1B registration will be available from March 1 to March 20, 2020. From what we understand, these dates are etched in stone, ie Employers will not be able to add, subtract or modify anyone/anything after March 20, 2020. (Note: this deadline is before the March 31-April 1st deadline in previous years).

2. Where will the registration be held?

Registration will be on an online portal on USCIS.gov. We are already registered and can register your employees.
Current Citizenship and Immigration Service fees is $10/- per employee-Only Employers can pay this fee

3. What information do you need:

If you are my client, I already have employer information. However, employer information required by Citizenship and Immigration Services includes:

Employer Information:

1. Legal name of the prospective petitioning company or organization
2. Doing Business As
3. Employer identification number (EIN) of the prospective petitioning company or organization
4. Primary U.S. office address of a prospective petitioning company or organization
5. Legal name, title, and contact information (daytime phone number and email address) of the authorized signatory

Employee Information:

1. Legal Name
2. gender
3. Does the Employee have a master’s or higher degree from a U.S. institution of higher education? If so, what institution, what subject
4. date of birth
5. country of birth
6. country of citizenship
7. passport number
Please note though that we will also need the following information:
Job Title:
Job Location:
For third party vendors: Job duration
Employee’s educational documents

4 Why do we need this additional information?

1. We want to pre screen individuals
2. The registrant (us) has to certify that we are aware that all information is true and correct
3. The Citizenship and Immigration Service might sanction employers for filing frivolous (ie candidates who do not qualify or jobs don’t exist) registration
4. Having practiced Immigration law for 25 years, we have dealt with many instances of Citizenship and Immigration Service going back on promises. If its March 10th, and the Citizenship and Immigration Service website is still malfunctioning, that might be a problem. Therefore, ideally we would like to file the Labor Condition Application. If Citizenship and Immigration Service says they will not conduct the lottery this year, we will be ready with an approved Labor Condition Application.

Moreover, we think the Citizenship and Immigration Service will allow us to include the Labor Condition Application during registration, along with our G-28.

5 What time is good to start the process?

We strongly suggest you let us know the information by February, so that we can be well prepared on March 1st.

6 When will the registration be held?
Citizenship and Immigration Service says it “intends” to notify registrants of the lottery results by March 31, 2020. So the lottery will probably be held between March 21 and March 31.

Issues for Foreign Students

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Today is 09/11/2019—-18 years from that fatal day when students crashed their planes into the Wall Street Center. This blog will deal with issues that now occurs, under the Trump administration. In context I would like to point out that Trump Administration under the guidance of Stephen Miller is actually pursuing a policy of hatred rather than one of rationality and thus many of these issues have no logic behind them.
The number of students coming to the US has dropped precipitously and there are denials galore, way more than denials during the 09/11 days. This blog explores the general state of Student Visas issues. Note: Students from China and the Middle East face increased scrutiny. Also F-2 spouse and child are denied visas if the consulate believe that they will work illegally. This creates additional hardships on students.
There are some MUST do caveats for STUDENTS on F-1 visas. They are:
1. Check with the DSO and keep your Sevis alive at all times, including during the OPT stage and until you get the H-1B visa.
2. If your F visa is taking long, check with the DSO and ask them to defer admission if visa is not obtained on time. This might be a problem especially for graduate studies where semester begins in the fall only. But keep Sevis alive no matter the cost.
3. After you get the visa, please take actual courses, FULL TIME in the campus. Please go to class.
4. Take out health insurance. If you have any health concerns or you have a baby on taxpayer’s money you will have a problem with Adjustment of Status later
5. Do NOT get into any criminal activities, including drugs. Do NOT drink and drive.
6. Do not accept side cash business, like driving uber, or working for anything with cash. You may however continue to do any internet based business you might have in your home country and get paid in your home country.
7. Do not post any political messages on social media. This will not prohibit you from getting a visa, but it might delay the application in an atmosphere where most applications are delayed or denied

Common reasons for Students to lose F status:
• Dropping below full load
• Dropping out of school
• Working without authorization
• Transferring without proper sevis requirement
• Unemployment or inappropriate work on CPT or OPT

Converting to Student Visa from Visitor’s Visa—–This is not advisable anymore.
• First you have to stay for 90 days before you can apply;
• Second they have an extremely high rate of denial.
• And third, if you ever go out of the country for any reason the consulates are not giving visas anymore. So you are virtually imprisoned here in the US.

For OPT:
• For Stem OPT—-Please note that the I-983 needs to have a detailed plan. Contact your DSO every six months. Note that there are site visits to your place of employment these days, so have the employer go through the plan and implement it
• DO NOT travel on CAP GAP

For CPT
CPT is not very well regulated now, but regulations are coming in. CPT creates a lot of problems for any future benefits including H-1B and potentially Adjustment of Status
• Students need to attend school physically.
• If CPT optional it Work HAS to be for credit. If required—has to be required for ALL students
• Work has to have academic oversight
• The CPT work has to be directly related to their major and integral to the program of study. This is problematic especially with business administration—where a person can work in the field of Software or Engineering this can prove extremely difficult to justify. Foir a general MBA-unless you work for a Business Consulting Company that does business related work only, you will be denied a subsequent H-1B. However, if the course you are studying has to do with ONLY Software business Admin (like MIS) or Engineering Business, only then can you work with a software or Engineering Company. But these industries will NOT work for a general business degree.
• CPT has to be on a higher level than their last degree. If you have a Master’s, the CPT generally needs to be a PhD
• CPT will be different for each school.
• Be especially careful of Day one CPT. These will most probably not allow you to maintain status

For more information visit Banerjee&Associates

CIS’s Delays and Denials

By | Business Immigration, CIS, Citizenship and Naturalization, Employer/Employee, H1-B, Houston Immigration, Immigration, Immigration Policy, Uncategorized | No Comments

I am sure that most of you know by now the inordinate processing delays and Request for Evidences in almost every case, no matter what evidence we give the CIS initially. Citizenship and Immigration Service has distanced themselves from us Immigration Attorneys, and is no longer talking to American Immigration Lawyer’s Association. It has also changed its infopass system, so members of the public cannot go and ask questions.
The other thing that Citizenship and Immigration Service is doing is arbitrary denials. There is no uniformity or accountability and each officer is left to deny cases as they please.
These delays and arbitrary denials are causing needless hardship for Immigrants.
The Administrative Appeals Office, which is supposed to be a non partisan agency, who is supposed to be reviewing the case like new (ie without Citizenship and Immigration Service’s interpretation) has now rubber stamped the agency’s decision 100% of the time for the past 2.5 years.
So our ONLY remedy is to go to federal courts. Mandamus the Citizenship and Immigration Service to act, or appeal to federal courts for Citizenship and Immigration Service’s arbitrary decisions. But those of us who live in red states would probably not get a fair trial, unless we file in DC, who has jurisdiction, because that is where Citizenship and Immigration Service is located. That is of course an added time and travel expense. Especially Business Immigration, because private companies don’t work at the speed of Government.
The Citizenship and Immigration Service had always given the excuse that the delay was due to the number of petitions filed. Yet, when they published their report, it showed that there was a 13% reduction of applications filed. Simultaneously, the processing times increased by 8%.
With this knowledge in hand, the American Immigration Lawyer’s Association testified to the Congressional Immigration Committee on July 16, 2019. This is a bi partisan committee. Sharvari Dalal-Dheini, AILA Director of Government Relations, noted, “It is not hyperbole to say that the consequences of these delays are dire. In recent months, dozens of Republican and Democratic leaders in the House and Senate have demanded that USCIS address what are unacceptable low performance measures. We greatly appreciate the work the Committee is now doing to hold the agency accountable for its failure to administer immigration benefits, as Congress mandated. AILA’s more than 15,000 members have been urging USCIS to address these delays for years, only to see them worsen. Today’s hearing is vitally important, but Congress should also pass legislation to ensure greater transparency and accountability within USCIS going forward. These failures harm our economy, American businesses, families and communities. America deserves a strong, effective legal immigration system to keep businesses competitive and our families and communities prospering.”
Yesterday Forbes reported that Rep. Zoe Lofgren (D-CA) asked the Citizenship and Immigration Service about the delays and denials. USCIS Associate Director for Service Center Operations Donald Neufeld said, “I can tell you that a number of changes have been made affecting H-1B processing over the last couple of years”—-thereby admitting that changes made were a result of this administration.
I do not know if anything will change under this administration. I know I have been slower to respond to clients. But it is virtually impossible to get back to everyone at the rate we used to in 2015, because we now live in a world where Immigrants are told to go back to where they came from, even at the very top of our administration and useless Request for Evidences are the rule rather than the exception of the day. We know you are anxious. We are too. But rest assured we will fight for you as best as we can.

Fire and ICE

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In 1985 my husband was a Medical Resident at Harvard. In 1992, we became permanent residents of the United States. I went to law school in 92, and became a lawyer. We both worked and paid taxes. We raised two children who went to Ivy Leagues and both are now MDs (A radiologist and a Psychiatrists). They will begin to pay taxes while my husband and I near retirement age. Net gain for US—substantial. My husband was a doctor. And we need doctors. But we also need Construction workers, maids, gardeners, fruit pickers, chicken pluckers. But unlike a degree in Medicine, there are no visa categories for these jobs.

                                                           Laws
There are three main ways to Immigrate to the US. They are through: Business Sponsorship, Family Sponsorship and Asylum. Business Immigration, which I have been practicing for the past 20 plus years confines itself to highly educated or high net worth individuals. And no question, America needs them. But we also need folks to clean houses, mow our lawns, etc. These are not temporary jobs, yet they are useful jobs. However the only category available right now is for temporary workers which are seasonal—-like fruit pickers or summertime restaurant workers. These visas are not for long term. My house cleaners have been working for me since 1997. It bothers me that I cannot sponsor them, because there is no Business Immigration laws for that category. Family sponsorship is limited to only immediate family for Permanent Residency Holders or Citizens.
That leaves Asylum as the ONLY option for the folks in the Southern Borders. The Asylum law states that the Alien has to prove that: “alien’s life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion” This fear has to be credible, and supported by evidence. A vague fear that “our country is lawless, and gangs could kill me” is not enough. This is extremely hard to prove. Even if the alien is personally threatened, provable evidence is not there in most cases.

                                                                Facts
According to NPR, refugees have to pay eight thousand USD per person to come to US.  Attorney’s charge 5-8K. So there is quite a bit of expense involved. And folks who can come up with that kind of money generally do not have credible fear, because they can bribe the “bad guys.” They are mostly coming for the same reason every immigrant comes to the US—to get a better life for themselves and their families. They work very hard. They construct our houses, clean them and add value to our economy. But again, we do not have the laws for this kind of business sponsorship.

                                                           Trump
Comes now Trump a bigot, a racist and an idiot. He doles out everything with a dollop of hate. When he met with this situation, instead of diffusing the situation, he resorted to hateful tweets. What resulted was the press sensationalizing the situation, more migrants coming in on fear that US will close the doors, and scant resources. They were being housed in terrible, heartbreaking conditions. Since these folks endured so much, they would be ideal workers, able and more than willing. We need these migrants.


                                                       ICE vs CONGRESS
ICE stands for Immigration and Customs Enforcement. It is their JOB to enforce the Immigration laws. But as we already established, the law is simply not there. Yet Congresswomen like Ocasio Cortez chose to criticize ICE. Yes, Trump is a racist. Despite his tweets, Trump does NOT control day to day operations of ICE. ICE is an Organization and by far they follow rules laid out by administrative decisions. The recent conditions in the border was caused by an upsurge on the amount of refugees coming in, and the facility being inadequate. To solve the problem we needed funding. And funding is provided not by the Executive, but by the legislature.
Additionally laws are made by the Congress—-not by the executive. But just like Trump, AOC will scream, and not actually do anything.


                                            Solution vs Politics
We know that the Congress is divided. However, if the House creates employment-based categories, the Senate will most likely accept them. What the senate (with majority Republican) will not accept is a “path to citizenship.” On the other hand, Democrats will not do anything unless these migrants are given a path to citizenship, aka votes. Both parties are using migrants as pawns for their agenda.
My solution is: Forget Politics. Come together and sign employment based categories for all jobs. We need help with jobs like Maids, Gardeners, Home Health Care, Construction, etc. We baby boomers NEED that help, and we can pay for this help. Give them temporary work permits renewable if they are still employed. And then, if they can show employment for X number of years, such that their connection to their home country is dwindling, then let them apply for Green Card-Permanent Residency, and then 5 years from that time, apply for Citizenship. Democrats, by then the millennials will control, and if the Republican Party does not change, they will cease to exist.

To Premium or Not to Premium

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As the title suggests, this is a very important question. Listed below are the pros and cons of such decisions

To Premium
1. You need to travel outside the US
2. You work for a large company, get a level 4 salary, and have documents to prove Specialized Knowledge and Control
3. Your project with which the Labor Condition Application is filed may be ending soon, and you need the documents to prove your case
4. Extension with same employer
5. It eases the employees’ minds

Not to Premium
1. New petition
2. Transfers
3. Working for a small consulting company
4. All your friends are upgrading to Premium

In other words, if your case is easily approvable, do Premium.
However, in new cases, or cases requiring additional scrutiny by the Citizenship and Immigration Service, I would advise not to premium, especially if Premium processing has just started for your category. What can happen is that a lot of folks will file in Premium and officers will be inundated with work. You may supply all evidence to prove your case, but you risk the chance of a denial. For busy officers it is better to deny a real case, then approve a false case.
Once the case is denied, it is useless to appeal, because under the trump administration, the AAO is rubber stamping all of Citizenship and Immigration Service’s decision. You can fight in federal court, but that does cost money and time.

Beware of Fraudulent Phone Calls

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Dear Clients,

I just received a call from some fraudsters that my nomorobo app did not catch. It left a voice message which said, “There is a Legal Enforcement Action filed by our department (Social Security) on your social security for fraudulent activity. So before this matter goes to the State Court or you are arrested, please call us.” The message came on my phone from 347-651-0991, but this call could come from any number.

Please do not fall for these fraudsters. And whatever you do, Please do NOT give them your social security

1. No Government agency calls you—they snail mail you
2. There is no such thing as a Legal Enforcement Action
3. Social Security is a Federal Agency and State Court has no jurisdiction——I was almost tempted to call them back and tell them that they should do some research before making robocalls

For all your Immigration needs please call us at Banerjee & Associates

Fairness for High Skilled Immigration Act-HR-1044

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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