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

 

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

Creating Hopes that wont Materialize

By | Citizenship and Naturalization, Houston Immigration, Immigration, Immigration Policy, Uncategorized, Visa | No Comments

From time to time, our lawmakers meet with lobby groups, with Constituents or with other interest groups and promise them the moon. They of course are given gifts and campaign contributions. In return, these lawmakers introduce bills in the Congress or the Senate. The bills might be debated or might be killed immediately. But most of them don’t make it out to the other House, and some that do, might die in the next house. During my career, I have seen countless bills die. Yet for a fleeting moment, they bring hope to people.
Whenever such bills are introduced, we lawyers get a flurry of calls. Can this be true? Can we get work permit? Can we get the green card soon? And as an Attorney, it becomes our duty to crush these dreams.
Good attorneys crush dreams. Bad attorneys sign on clients. For instances, when DAPA was introduced by the Obama administration, giving dreams of working and driving legally, to parents of children born in the United States who entered illegally, many attorneys took retainers and signed on clients. Clients think, they engaged an attorney and will get their dreams realized. But that executive action died in the Supreme Court.
Today, I got calls from Indian tech employees. They are legal residents, working in the tech sector, being productive. Yet, they have to wait 12 to 18 years after they file their petition, to ultimately get their green card. Most are Master’s degree holders and many times, their employers abuse them. They work hard. They make the best of their situation.
How does a lawyer tell them, that bills to alleviate their wait times will probably die?

 

For your Immigration needs call Banerjee & Associates

Travel Ban-Take 3-The Supreme Court Episode

By | H1-B, Immigration, SCOTUS, Travel, trump, Uncategorized, Visa | No Comments

Suppose you have a petulant child who hates your brother Jim and does not want him to visit your home. You have shut the child down, but the child just whines and screams. You know reasoning does not work. So you just say, OK, Jim cannot come for no reason. But if Jim has a reason, he can come. You are giving your child a lollipop. The child shows off his lollipop. The next time, Jim comes, you tell the child, but Jim wants to visit family. That’s a reason. And he will not come for no reason. I promise. Give the child another lollipop and hope the child forgets about this in 120 days.
That sums up the Supreme Court’s decision to lift the temporary restraining order against Trump’s travel ban. It has no substance, does not really impact anyone, and gives Trump his lollipop.

As I have said in my blog before, there is no justification for the travel ban on 6 countries: Syria, Iran, Yemen, Somalia, Sudan and Libya. Are there terrorist cells in these countries? Yes, of course. But the procedures in place already have the US Consulate performing extreme security checks before an individual is granted visa to enter the US. At one point in time, during the Obama administration, some suspected terrorists entered the US. They were deported and Obama suspended travel for these countries until a more thorough vetting procedure was implemented. But that was done, and no suspected terrorists have entered since. So clearly Trump just want to appease his intolerant base with the travel ban

The Supreme Court removed the temporary restraining order with a lesser temporary restraining order. The people not impacted are:

1. Anyone with a current visa—even a visitor’s visa issued before June 14, 2017
2. Anyone with a work visa-H, J, L, O,P, R I, F
3. Anyone with an immigrant or non Immigrant (K) family based visa
4. Diplomats

The Only group that is NOT covered are foreign tourists who are coming to USA for visiting sites in the United States. But seriously, how many tourists from these 6 countries do we find, just visiting the Grand Canyon or Disney Land? They have enough problems on their hand to think about expensive vacations. And the super-rich, who can afford to, does have either business or family connections.

B visa holders should bring with them documents showing family ties or business ties. Attending a conference, or lecturing is a valid business tie, and “mother in laws” are valid family relation. (Supreme Court said this, not me). Other visa holders should bring their visa related documents just to be sure.

So in effect, it’s a useless ban. It does affect Muslims, because Muslims are a majority in these countries. Trump said he had “clear victory”,  and the ACLU vowed to fight it.
This ban creates fear among many Muslim legal travelers. Attorney’s make money playing into that fear.

Other than that, it’s just sound and fury, signifying nothing

 

For more information call Banerjee & Associates

Travel Ban II

By | Commentary, Terrorism, Travel, trump, Uncategorized, Visa | No Comments

The second travel ban executive order, expected to take effect today has been halted, by two federal courts in Hawaii and Maryland. Trump had recrafted the travel ban to exclude Permanent Residents and US Citizens, originally hailing from the seven countries. He has also halted the processing of refugees from those seven countries.
Although the second travel ban is not, on its face unconstitutional, it does have desperate impact on persons of Muslim faith. Since Customs and Border Patrol officers have wide discretion as to who to “suspect” and “admit” their innate biases do play a factor. Report of abuses in recent times are rampant. Even Mohammad Ali’s parents were detained simply because they were of the Muslim faith.
“There is nothing “veiled” about this press release: “Donald Trump is calling for a total and complete shutdown of Muslims entering the United States,” Judge Watson of Hawaii wrote. And one may also argue that there has not been any recent incidents of terrorists trying to enter the United States from those seven countries.
Thus this useless travel ban encourages discrimination towards certain religion. If we weigh whether America can be safer with the travel ban vs. whether discrimination towards Muslim is a legitimate State interest, the travel ban becomes clearly unconstitutional. The purpose of enacting it is nothing more than fulfilling Trump’s campaign promise to ban Muslims and serves no more than fueling hatred towards Muslims. The budget cuts to the Department of State will only enhance and prolong this process.

For more information visit Banerjee & Associates

Trump’s Immigration Enforcement

By | Citizenship and Naturalization, Commentary, trump, Uncategorized, Visa | No Comments

I do not do removals (Deportation) and thus I do not have any financial stake in Trump’s massive deportation project. I do not object to a President enforcing a law, whatever it is. My objections are entirely based upon my Centrist fiscal views.
1. By detaining individuals, we are simply feeding, clothing and paying all expense (including medical) for the illegal immigrants. And that is our Tax payer dollars
2. They are given a bond hearing, and when most of them can’t pay the bond, we have to keep them detained.
3. Do the Math: there are 5000 Immigration and Customs Enforcement (ICE) Officers in the US. There are a total of 242 Immigration Judges in the US. There are 11 to 13 million illegals in the US. So to get a hearing will take a long time, during which, us, Taxpayers will house, feed and pay medical expenses for them.
4. Lawyers can further delay the process by filing appeals. This process can go on for years
5. Once we do deport them, if there is no Comprehensive Immigration plan, and there are jobs in the US, the individuals will come right back in. They just earned a plane flight back to their home country on the US Tax payers.
Solutions:
1. Create a Comprehensive Immigration Plan. If there is employment available for the people, they should be given a guest worker status. That status should be renewed every year, and if there are no jobs, they need to return to their home country. This will be applicable even if they have US Citizen wives or children. There is no reason why a family cannot survive in their home country. (Yes, I know this is easier said than done)
2. These guest workers should be able to buy their own health care, and be treated accordingly.
3. There are a lot of people from Mexico, who cross the border to get free health care in the US. They have to pay for such care in Mexico. Allow hospitals to refuse such care and send them back. Once we do this for a few time, the flow will stop
4. Do what Obama did. Deport all criminals.
5. Stop thinking about a wall. There will inevitably be tunnels under the wall.

For more information, please contact Banerjee & Assoiates

Travel Ban take 2

By | Commentary, Immigration, Immigration Policy, Travel, trump, Uncategorized, Visa | No Comments

No Current Plans to Expand Travel Ban Beyond Current Countries (Updated February 2, 2017)

We have been hearing rumors that no one is allowed to get into the plane in Karachi, Pakistan. There are also rumors that other countries will be added to the ban. Thus American Immigration Lawyer’s Association asked Department of State to clarify.

In response to rumors of plans to expand the travel ban to other countries, DOS informed American Immigration Lawyer’s Association that there is no addendum, annex, or amendment now being worked on to expand visa revocations or the travel ban to countries other than those currently implicated in the Executive Order entitled, “Protecting the Nation From Foreign Terrorist Entry into the United States.” This includes Columbia and Venezuela which have been widely rumored to be under consideration and Pakistan. DOS confirmed that there is no information that supports such a rumor and asked that AILA members help end the spread of this false information.

So as of now, only people holding passports of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen are being detained. Green Card (Permanent Resident Card) holders and visa holders from these countries are also being put to secondary inspection which is taking at least 6-7 hours after they come to US from foreign travel. Some officers might be prejudiced and worse than others. The Green card holders might even be asked to give up their green cards. Never do that. Resist and ask for an attorney

So far, if you were born in these countries, but have other passports, then you are not stopped.

No refugees form these seven countries will be allowed in from these seven countries for at least 90 days

However please note that when Trump made the Executive Order the Department of State was not informed about it. They learned it just like all of us.

Written by Banerjee & Associates

DUI/DWI and Immigration

By | CIS, Employer/Employee, H1-B, Immigration Policy, Uncategorized, US Consulate, Visa | No Comments

With Thanksgiving approaching, I hope you all stay safe and don’t drink and drive.  But if you are a non immigrant (ie with say a H, E, an L or a TN visa) and you get caught (not convicted, just caught), you may receive a letter in the mail, cancelling your visa.

But, you say, you thought that you were presumed innocent until proven guilty in America.  And you are right.  Yet, the Department of State has the right to suspend your visa.  Because this is not a legal ground of inadmissibility, it’s a medical ground of inadmissibility

If your I-94 (here) is still valid, you can continue to work in the USA.  However, if you go outside the USA, you will be required to revalidate your visa.  The post will send you to a medical doctor, who will evaluate whether you are “medically fit” (read not an addict) to do your job.

So have fun, drink, but don’t drive if you do drink.  Or at least, don’t get caught

 

Please contact Annie Banerjee at Banerjee & Associates for more information

 

How to handle the Department of State

By | CIS, Commentary, Uncategorized, US Consulate, Visa | No Comments

Useful tips

1. Go dressed well for the interview
2. If you get a 221 G –con tact your attorney. Consulate decisions are final, and if you are denied, you will not be able to reenter
3. After you submit your answer for a 221G, please have patience.
4. The posts tell you to wait at least 60 days before inquiring. We actually advise 90 days. The posts are busy, so if you make yourself or your attorney a pest, the post will simply deny the visa.
5. Once you get your visa, you buy your tickets. We advise that you enter during working hours on week days, even if those tickets cost a bit more. This is because on week days and working hours the Customs and Border Patrol personnel are more senior, hass more experience and has seen your type of case before
6. Please note that if you do get into Secondary Inspection, this is not an adversarial encounter. Yes, it is difficult to wait hours after arriving from an International destination. However the visa officer is simply doing her job.
Also please note that Canadians are given I-94s. Please check your I-94 status here. Please do not overstay your visa.

Please contact Annie Banerjee at Banerjee & Associates for more information.

DAPA/EXTENDED DACA DEAD

By | Commentary, DAPA, Immigration Policy, SCOTUS, Uncategorized, Visa | No Comments

Since Comprehensive Immigration Reform was not likely to pass, President Obama passed a series of Executive Actions to remedy some of the harm caused by immigration inaction. Originally DACA (Deferred Action for Childhood Arrivals) was published in 2010, which basically said that Kids brought over into United States before their 16th Birthday and before 2007, and graduated from High School or are in school, would not be deported. They would also receive work permits which would enable them to work, get Driver’s Licenses, etc.

In November of 2014, President issued another Executive order granting the same benefit to DAPA (Deferred Action for Parents of Americans). He also extended the DACA to include individuals who came before 2010, and under the age of 31. However that executive action also had other provisions, which both Democrats and Republicans relating to Business Immigration. Most notably H-4 spouses of H-1B holders who has an approved I-140 can apply for work permit. Other Business Immigration visas adjudications would standardize adjudication by Citizenship and Immigration Service memorandum. Please note that these Business Immigration provisions are in place and both Democrats and Republicans agree on these provisions.
State of Texas sued on grounds that DAPA and DACA exceeded the President’s authority. The Supreme was deadlocked 4/4 on the case in June of 2016. The Obama administration filed for another certiorari, but SCOTUS has refused to hear it this coming year when the new Justice is presumably appointed.
The SCOTUS did not give any reason for this refusal. Maybe the SCOTUS thinks that President Obama will not be in office, any Executive Actions he could have taken would be moot. Maybe the Court wants Congress to tackle Comprehensive Immigration Reform. Whatever the case might be, we will be left with people driving without a license or insurance, people falling sick with no health insurance, and people earning without paying taxes. Yes, it makes no sense. This is not a Green Card (Permanent Resident Card), it’s just a work permit so that undocumented aliens can pay their fair share for living in our midst.
For more information contact Banerjee and Associates