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

 

STEM OPT

By | Business Immigration, Citizenship and Naturalization, Uncategorized | No Comments

Employer’s obligations

If you are going to hire a trainee on her post education completion OPT (Optional Practical Training)
1 You must sign up with E Verify
2 Need to have the contact information of the student’s DSO—and report:

• Have a planned formal training program-on form I-983-Customized for each student with evaluation
• Any Material Change (like different location) on a new I-983
• Termination of employment —-report within 5 days of termination

2 EMPLOYER-EMPLOYEE RELATIONSHIP-
Kind of similar to the H-1B control issue, this is more specific. While employers maybe able to send employee to another location, it cannot be labor for hire. The employer or an employer’s representative should be there to supervise and implement the training described in the 983. For instance if Employer CCC employed OPT student X and deployed them to work for Amazon. Employer CCC must have another employee at Amazon to supervise X at amazon’s presence.

Small consulting companies, who cannot have the above or staffing companies should not hire OPT student. Employers need to make sure that they have enough resources and trained personnel available to train the OPT student.

STUDENTS

One gets 24 months on STEM for any STEM degree. For instance Student X does a Bachelor’s in Engineering—he gets 24 months. The he does a Master’s in Engineering. He gets another 24 mts.

UNEMPLOYMENT PERIOD :

Initial post completion 12 months: 90 days
24 month extension: 150 days

For more information please contact Banerjee & Associates

 

Employment Based Visa Retrogression

By | Business Immigration, Citizenship and Naturalization, Retrogression, Uncategorized, Visa | No Comments

Please note that for the month of September 2018, the Employment based EB-1, 2 and 3 are oversubscribed worldwide. This means no one can file their Employment based I-485 petitions. Additionally if anyone who had an Employment based interview starting August 8—-will not receive their Green Card (Permanent Resident Card), until at least October. This is the first time in history for this to happen.

Charlie Oppenheim, Chief of Visa Section predicts that:
From October, EB-1 both from China and India will be able to file the I-485 petitions

He predicts that EB-1 and EB-2 for all other countries will be current from October 2019. This means that applicants who were interviewed in August will be able to get their Green Card (Permanent Resident Card).

EB-2 for China will retrogress in September 2018 from March 1, 2015 to Jan 1, 2013. This means that EB-3 for China will have a faster Priority Date. However Mr. Oppenheim does predict that China EB-2 will recover from October 2018. It will stay ahead of EB-3 until at least Jan 2019.

For India, both EB-1 and EB-2 will retrogress to 2007 and 2003. But the EB-2 numbers are expected to come up to 2009. EB-3 will move slowly pending demand.

Charlie Oppenheim is the head of the visa numbers at Department of State, and is the best possible source on visas. Please note that these are mere predictions, and may not be true

 

For more information contact Banerjee & Associates

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

The current state of H-1B

By | Uncategorized | No Comments

Citizenship and Immigration Service has completed its lottery for H-1B and I think an inordinate amount of candidates got in. I would say about 90 percent of mine got in. I will also say that probably Citizenship and Immigration Service is planning to deny half of them. And yes, they are looking at Computer Consulting Companies.

The phrase of the day in the H-1B land is “Specialty Occupation” . Unfortunately the Citizenship and Immigration Service has confused this with the L-1B “Specialized knowledge” since 2017. Last year it was confined to computer jobs. This year this virus has spread to other fields like Petroleum Engineering, Bio tech research, etc. A two paragraph H-1B job description is no longer enough. We need a 3 page description following the Department of Labor code. And then the omniscient officer just denies it—-because yeah, she has to meet her denial quota.

I don’t know yet what sort of torture the Citizenship and Immigration Service has in store for computer professionals. But they have started with F-1 OPT. They ruled that F-1 OPT cannot be working on a third party site. The purpose of OPT is training. And if the employer cannot train personally, then its invalid.

The OPT is also cancelled if the student enrolls in a different program, like Masters or moves to a different school.

 

For more information contact Banerjee & Associates

Institutions for Non Cap H-1B

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

Institutions of Higher Education
H1B petitions filed by institutions of higher education, as defined in Section 101(a) of the Higher Education Act of 1965, 20 U.S.C. 1001(a), are exempt from the H1B cap.
Under the definition, an institution of higher education is one which:
• Admits students who have completed secondary education;
• Is licensed to provide education beyond secondary school;
• Provides educational programs for which the institutions award bachelors’ degrees or provide programs of not less than 2 years that are acceptable for full credit toward bachelors’ degrees;
• Is a public or non-profit institution; and is accredited or has been granted pre- accreditation status by a recognized accrediting agency.
Non-Profit Entities Related or Affiliated To A Higher Education Institution
H1B petitions filed by non-profit entities that are related or affiliated to an institution of higher education are exempt from the H1B cap.
1. The nonprofit entity is connected to or associated with an institution of higher education through shared ownership or control by the same board or federation;
2. The nonprofit entity is operated by an institution of higher education;
3. The nonprofit entity is attached to an institution of higher education as a member, branch, cooperative, or subsidiary; or
4. The nonprofit entity has entered into a formal written affiliation agreement with a institution of higher education that establishes an active working relationship between the nonprofit entity and the institution of higher education, and a fundamental activity of the nonprofit entity is to directly contribute to the research or education mission of the institution of higher education.—generally Hospitals qualify
Note: Other non profits might be ACWIA fee exempt, but not cap exempt.

For more information please contact Banerjee & Associates

 

Asian-American WWI Veterans Faced Difficult Path to Naturalization

By | Uncategorized | No Comments

Asian-American veterans of WWI faced great difficult in both attaining and retaining U.S. citizenship via naturalization for many years after the war ended in 1918.  Even as U.S. citizens, many Japanese-American vets were interned during WWII.

Congress passed the first law regulating naturalization in 1790 (1 Stat. 103). In general, naturalization was a two-step process that took a minimum of 5 years. After residing in the United States for 2 years, an alien could file a “declaration of intent”  to become a citizen. After 3 additional years, the alien could “petition for naturalization.” After the petition was granted, a certificate of citizenship was issued to the alien. An alien could be naturalized by any court of record.

There were two notable exceptions to the “two-step, 5-year” general rule.  First,  “derivative” citizenship was granted to wives and minor children of naturalized men.  Second,  special consideration was given to veterans. An 1862 law allowed honorably discharged Army veterans of any war to petition for naturalization–without previously having filed a declaration of intent–after only 1 year of residence in the United States.  Under the Act of May 9, 1918,  aliens serving in the U.S. armed forces during “the present war” were allowed to file a petition for naturalization without making a declaration of intent or proving 5 years’ residence.  Over 192,000 aliens were naturalized between May 9, 1918, and June 30, 1919.

The Act explicitly made clear that Filipinos who had served in the military were eligible for citizenship.  However, its continued use of the term “any alien” was ambiguous as to the eligibility of other Asian groups for military naturalization. When Congressman Moore of Pennsylvania asked whether the term “may not apply to Japanese or Chinese who may be engaged somewhere in the Navy or the Army?”‘, the Chairman of the House Committee on Immigration and Naturalization, John Burnett, replied that the Act made other “Asiatics” ineligible to naturalize.  Even the Bureau of Naturalization adopted the position that other Asians did not qualify under the Act.  In contrast, Judge Horace W. Vaughan, of the U.S. District Court of Hawaii, interpreted the law to include all Asian immigrants serving in the military and began issuing naturalization orders, bypassing the Bureau of Naturalization.

Being able to claim naturalization was critical to many Asian-American veterans, who otherwise would have to leave the United States. Ko Fuk, a Chinese-American citizen who served on a U.S. Navy battleship, used his WWI naturalization certificate as proof of right to remain in the U.S. in 1922.

With all three branches of the government issuing conflicting interpretations of the Act, the case of Hidemitsu Toyota, who was naturalized at Federal Court in Boston in May 26, 1921, eventually made its way to the Supreme Court.  While Toyota’s case was still waiting to be heard,  the Supreme Court ruled in 1923 against Bhagat Singh Thind, also a WWI veteran, retroactively denying all Indian-Americans born abroad citizenship for not being a white person “in accordance with the understanding of the common man.”  Indian-Americans were considered a separate category from “Asiatics” or “Orientals”.  Unfortunately, on May 25, 1925, the Supreme Court ruled that non-Filipino Asians were not included in the Act of May 9, 1918 and Toyota’s Certificate of Naturalization was cancelled.

In 1933, Japanese WWI veteran, Tokie Slocum, began his campaign to allow Asian-American veterans the ability to naturalize.  Slocum was naturalized in 1921 and believed that his naturalization was cancelled by the Toyota Supreme Court Order.  He began writing literally everyone he could think of, including the Immigration and Naturalization Service, members of Congress, state legislators, local politicians, and attorney generals.  Slocum testified in front of Congress and became the driving force behind the Act of June 24, 1935.  This new Act allowed (1) Asian veterans of WWI to naturalize, (2) allowed Asians naturalized during the war to have their certificates validated, and (3) allowed new certificates issued to those who lost them.

As a result, at least 700 Asian-American soldiers/veterans naturalized during and after WWI.  Bhagat Singh Thind, who previously lost his Supreme Court case, was able to naturalize under the Act of June 24, 1935.  Since Thind was now an attorney, having citizenship allowed him to practice in his state.  But, many WWI vets, including Tokie Slocum, were interned during WWII.  Racial bars on naturalization did not end until 1952.

8,600 Vietnamese Immigrants in the U.S. Subject To Imminent Deportation

By | Uncategorized | No Comments

Very little media attention is being paid to the plight of approximately 8,600 Vietnamese immigrants in the U.S., who are subject to final orders of deportation.  Many of these immigrants are refugees who fled to the U.S. after the Vietnam War ended in 1975 and became green card holders.  However, due to changes in the law during the Clinton administration and aggressive enforcement by President Trump, these immigrants may find themselves either deported to Vietnam or stuck in indefinite detention in the U.S.

7,821 have these Vietnamese immigrants have criminal convictions, many of these convictions are for misdemeanor petty theft or minor drug offenses.  In 1996, President Clinton signed a law that made green card holders “automatically deportable if convicted of what is termed an ‘aggravated felony’ under immigration law.” The 1996 law also made these crimes apply retroactively.  In the past, these convictions would not have resulted in deportation.  But, under President Trump, this decades-old law is now being aggressively enforced.

Under U.S. immigration law, an “aggravated felony” requires the crime to be neither “aggravated” nor a “felony” in any jurisdiction.  Rather, this is an all-encompassing term that Congress has defined to include many non-violent misdemeanors such as filing a false tax return or missing a court date.  Unfortunately, not only is an immigrant with an aggravated felony automatically deportable, there is not even a hearing for a judge to hear potentially mitigating circumstances such as “having fled as a kid on a boat from a homeland devastated by the U.S. military and having grown up in poverty in a strange country.”

In 2008, the U.S. and Vietnam agreed not to deport Vietnamese immigrants who had arrived in the U.S. prior to July 12, 1995.  However, President Trump’s strong desire to change that agreement has been met with fierce political opposition within the State Department.  Last year, Ted Osius, the U.S. envoy to Vietnam resigned in protest after the Trump administration pressured him to ask Vietnam to accept these 8,000+ potential deportees.  Moreover, many of these immigrants were loyal to South Vietnam (which lost the Vietnam War and no longer exists), and opposed North Vietnam, which became the present-day communist regime of Vietnam.  Mr. Osius bitterly surmised, “I feared many would become human rights cases, and our government would be culpable.”

Most damaging, while the U.S. and Vietnam are still deciding whether to accept the Vietnamese deportees, increasing numbers of Vietnamese immigrants are being detained in U.S. government facilities.  Some, like Hoang Trinh, have been detained indefinitely by Immigration and Customs Enforcement for at least 7 months, due to a previous drug charge in 2015.  Trinh arrived in the U.S. with his family when “he was 4 years old, fleeing postwar communist Vietnam in 1980. Trinh became a legal U.S. resident, married and raised two American children in California’s Orange County.”

Now, stripped of his green card, Trinh faces imminent deportation to a country he barely remembers.  If deported to Vietnam, Trinh’s only hope of returning to the United States is to obtain the unlikely consent of the U.S. attorney general, Jeff Sessions.