Buying the American Dream—The EB-5 visa

By | Commentary, Houston Immigration, Immigration Policy, Visa | No Comments

EB-5 Job creation and money in US

 

I know Trump makes for a great opening line in any blog, so I will start with Trump.  Trump criticized Mr. Khan, the Gold Star parent by saying that Khan, a lawyer took money from Muslims so that they could buy their citizenship.  What he was referring to is the EB-5 investor visa program which is controversial.  But before I go into any details, let me say that Trump used EB-5 foreign money to build his luxury rental apartments in New Jersey called Trump Bay Towers.

 

The EB-5 is a program where investors can invest 1 million USD (or $500,000 in underdeveloped areas) and create at least 10 jobs.

The funds have to be obtained “lawfully” and USCIS traces the source of the funds meticulously.  If for instance, one inherits a property and sells it to obtain funds, the Citizenship and Immigration Service will demand that one traces the source of funds used by the buyer to buy the property.  This requirement is very strict

The investors have to put the funds “at risk”.  That means that the investor has to invest the money into a for profit, new venture. Very often, people invest in “regional Centers”—- businesses which pool a lot of these investment and build a new project.  However they create very little interest, and the money is tied up for about 10 years.  The interest is not enough to be able to live in the US

 

Over the years investors in this program have invested billions of dollars and have created thousands of jobs.  So why is this program criticized?  .  The problem with this program is not what Mr. Trump thinks, Muslims bringing in illegal money.

 

The problem is China.  90% of the individuals and capital come from China.  At first it would seem that China sells so much goods to us, that it is wonderful for them to invest capital in the US.  But PRC is not a free country, and that’s the problem.  Ordinarily PRC does not allow money to be brought outside the country. However, it turns a blind eye to the EB-5 program.  The investors do not directly find investment opportunities in the USA. China has state run brokers who liaise with owners of Regional Centers in the US. So these state run brokerage have access to how real estate is done in the US. They also have access to computer files.  They also can invest and control flow of capital in strategic areas.  Some have criticized that China is using economic, information and technological “warfare” with us through this EB-5 program.

The program expires on September 30th, 2016. But my guess is that this Congress will simply extend the program for one year, and let this be the problem of the new administration.

 

For more information, contact Houston Immigration Lawyer, Annie Banerjee

H-1B fraud solutions

By | Commentary, H1-B, Immigration Policy, Visa | No Comments

The H-1B program has been coming under attack lately. Ted Cruz wants to put a moratorium on H-1B visa. That seems to be the Republican solution to every crisis—-stop it and put your head under the sand, and the problem will go away. Is there fraud in the H-1B program? Yes. But the way to stop it is not through a moratorium. Assuming that most frauds in the H-1B visa is perpetrated by the computer consulting industry, this blog will deal primarily with the problems pertaining to that industry.

H-1B is the visa classification given to Professional employees to come work in US Companies. Although all types of professions use this visa, the vast majority of these visas are used by computer consulting companies for computer professionals. The end user is the place that the computer professional will actually work. Usually these are big companies. These companies contract out their work, and sometimes the intermediary companies enter into contracts with others. Thus very often the company employing the H-1B worker has one or more intermediaries between them and the end client. The petitioning consulting companies (hereinafter petitioner) often change the employees resumes to suit a job, although the employee may not have that skill. This can be stopped if the end client can have a testing requirement to before accepting someone for the job. Initially it will be a burden to devise these tests, but then, that will ensure that their work is done in an efficient way.

But the real problem is that there is a quota of 65,000 visas per year for H-1Bs (plus 20K for those who have US Masters) and there are more than 233,000 petitions filed on the first day in 2015. So the Citizenship and Immigration Service does a random lottery and the lucky 85 K get in. Then the Citizenship and Immigration Service takes a long time to adjudicate these cases, and often it’s January of the following year that the employee can get in and start working Thus employers have to calculate their need and apply with projected rather than actual figure. Since these visas lead to Green Card (Permanent Resident Card), they are coveted by employees. Thus many employees seek employers to enter the lottery. The employees often pay money to the employers to enter the lottery, which is of course against the law. The employers then file for the H-1B lottery for these employees. By the time the employee can make it to the United States, the project that was originally applied for has already been completed.
Do H-1B employees take American jobs? Please note that the Government fees for H-1B is 1575 to 4325 USD- per individual. Add attorney’s fees to that. The Employer has to pay the employee at least the Prevailing Wage, which is often higher than local employees’ pay. And even if it’s the same wage for three years, its still the same as an American worker. But we do have computer science graduates in this country. They do not want to lead the lifestyle of the computer consultant. The computer consultant is like a travelling Computer guru, who moves from project to project. They may stay in Memphis for 6 months, followed by Iowa City for 3 mts, followed by Houston for 5 mts. You get the picture. They cannot have roots anywhere. If they have families, the family has to be positioned in some place, and they usually go back for the week end. But to make up for it, they work 12 hour days from Monday to Thursday. It’s just a hard life that Comp Sci grads from this country simply do not want.

Thus the solutions to these problems are:
1. Do away with the H-1B quota and let the market dictate need:
The market is a much better predictor of demand than an artificial quota. The quota forces employers to project their need for a whole year and file accordingly. It also creates uncertainly because of the lottery and creates artificial demand. Very often the petitioner just has one or two big project and file 20 cases, even though the need maybe 5. They hope that at least 5 people get picked. This of course leads to fraudulent practices. And there can be no guarantee which employee will be lucky enough to get in. Without the quota the optimally qualified available personnel, rather than the lucky personnel will get the job.

2. Create a system whereby the HR director of the end user has to verify the employment of the employee
The Department of Labor, to end fraud in the Labor Certification program established a system where the Company has to verify that the Labor certification is a real job that does exist in the Company. The Citizenship and Immigration service is testing an employer verification system. But they need to create a simple program whereby the system sends out an e mail asking if this job exist. The adjudication (which needs to be done fast) will proceed upon a yes answer. If the e mail is fraud, then the petitioner will be barred from using the H-1B program again, and the end user will pay a fine.

3. Do Away with Control and Simeio issues:
The Obama administration created complex and useless rules to curb H-1B fraud which do not work. In 2010, the Citizenship and Immigration Service issued a memo that said these professional employees need to be “controlled”. The Government tried to say that if the petitioner does not control the employee, then they are not the Employer. The Government then proceeded to introduce this requirement ONLY to the computer consulting industry, and not to the healthcare industry, which employ the same model. Just a simple e mail from the end user should suffice. The “control” issue goes into the business model of this industry, over which the Citizenship and Immigration Service does not have jurisdiction.

Similarly in a 2015 case, Simeio, the ruling was that if an H-1B employee changes job location, the employer has to file an H-1B petition. As mentioned above these H-1B employees change job locations very frequently. Thus the Immigration Service is inundated with the H-1B petitions. The Government is taking almost a year to adjudicate these petitions. By then the employee has moved three times, making the adjudication of two of these petitions moot and a waste of time.
These two measures are quixotic and serve no purpose other than to harass employers and make attorneys rich. In order to curb fraud, the system should be made simple, hassle free and fast to keep pace with the for profit industry. Otherwise the Immigration code will quickly grow into something like the tax code, complex and filled with loop holes.

For more information contact Houston Immigration attorney, Annie Banerjee

Due Process at Consular Posts

By | US Consulate, Visa | 154 Comments

Stories of unfair US Consular Decisions abound. People meet all the requirements of getting a particular visa, and the consulate officer denies the visa based on his or her innate prejudices. The denied applicant can almost always do nothing.

The petitioning entity in the US can usually appeal to a Congressman or Senator, who can demand the reason for the denial. However previously the Consulate did not have to give a reason for that denial under the Consular non reviewability doctrine. Under the 14th Amendment of the US Constitution, The Government cannot deny any person in the United States any rights without due process. This usually means a hearing from the applicant and a right of the applicant to defend himself. This due process was denied to individuals who were not “in” the United States. Furthermore, a Consulate decision, no matter how egregious, was not reviewable by a Federal Court in the United States.

The Appellate Court in New York (2nd Circuit) changed that in Ramadan v Napolitano. The Court held that Federal Courts have the right to review Consulate decisions, and that Consulate posts need to provide an opportunity for individuals to explain their case. This case involved a Muslim Scholar, Mr. Ramadan who was denied a visitor’s visa on the basis of the fact that he contributed money to a terrorist group that had ties to Hamas. However the contributions were made between 1998 and 2002. The US did not designate this group as a terrorist group until August 2003. Therefore Mr. Ramadan could not have known that he was making contributions to a terrorist group.

It is yet to be seen what influence this case will have in Consulates such as Chennai, which has the distinction of having the highest visa denials. Will they provide the applicants with a hearing, and if so, is this hearing going to be of any length of time to be meaningful? Additionally, many people applying for visas all over the world have limited English knowledge, and may be made to sign papers which does not state the truth.

The Rule of Law is a high ideal and although most consulate officers follow it, many are still governed by innate prejudices against little people, little corporations. Yet these are the very people that the Constitution seeks to protect. Additionally these little individuals will not have the resources to appeal their case in an US Court of Law. At the very least, maybe the documents required to prove that an applicant has the “facially legitimate and bona fide” rights to a visa, will be the same for employees of big Corporations and little start up corporations. At least this is a step in the right direction.

Contact Houston Immigration Lawyer, Annie Banerjee for more details

The Reentry Permit

By | Houston Immigration, Visa | 168 Comments

The Permanent Resident Card (Green Card) is for living permanently in the United States. If after getting the green card, you want to live for more than six months outside the United States, there is a presumption that you do not want to live permanently in the United States, and therefore have abandoned your Permanent Residency Status.

In order to preserve your Permanent Residency status, you need to file the Reentry Permit (Form I-131) BEFORE you leave the United States. After filing you have to have a fingerprinting done, so it’s advisable to file at least 1-2 months prior to departure. Also please include a valid reason in the cover letter as to why you are leaving. The reentry Permit can be mailed to you or be picked up at the US Consulate near the foreign country that you are in. Please note that if you have committed a crime or are otherwise excludable from the United States, you cannot use the reentry permit to enter the US.

The Reentry Permit is usually valid for 2 years, before which time you have to come back to the United States. Of course you can come back and file the reentry permit again, for another two years, but you have to have a valid excuse. Usually it is not a problem if an US business transfers you to their foreign location, or if you leave to study under any particular program of study in another country. However if you are just working for a foreign company in their office in your home country, you probably will not get the reentry permit and have to forfeit your green card.

Please also bear in mind that using the Reentry Permit may not prolong your continuous residency requirements for your citizenship. Therefore getting the citizenship will be delayed beyond the normal times.

Contact Houston Immigration Lawyer, Annie Banerjee for more details

When an H-1B looses his Job

By | H1-B, Houston Immigration, Visa | 5 Comments

With the economic situation worsening, many H-1B employees are loosing their job. What should they do?

By law the H-1B status terminates the day the employee looses their job. However, the CIS has usually given a one month grace period. That means that if you can find another job sponsor and file the H-1B within one month, the CIS seems fine with that. You of course have to submit copies of your last pay stub with this new transfer.

If not, you should consider either filing for a visitor’s visa or go back to your home country. A Visitor’s visa may be necessary to extend your stay to be able to settle your financial affairs here. You file the Form I-539 and explain the situation.

If you have time remaining in your H-1B (ie, you have not used up the six years), you can go back to the H-1B status any time that you find another H-1B sponsor. Even if you are back in your home country, you can file for the remaining period on your H-1B, and do not have to go back on the lottery again. Please see December 05, 2006 memo by Michael Aytes, Acting Director of USCIS.

By filing for a conversion to the B visa, or by leaving the US, you actually stop the running of the clock on your H-1B and preserve the remaining time. So when the economy picks up again, and trust me, it will; you do not have to enter the H-1B lottery again, and simply convert or come over on the H-1B visa.

However be careful, B visitor’s visa is NOT indefinite, and after about 6 months on the B visa, if you are still unable to find a job, you need to leave the US. You cannot accrue illegal presence. Also the visitor’s visa adjudication at the CIS is in a mess. They may not adjudicate the application until 7-8 months, at which time they may deny it because it has already been 6 months. However, if you intend to stay for a little longer to take care of your financial affairs, (let the kids finish the school year) that’s the best option you have.

Contact Houston Immigration Lawyer, Annie Banerjee for more details

Please leave this country, Please?

By | Houston Immigration, Visa | 3 Comments

The Department of Homeland Security is really out of touch with reality. In a Program called Operations Scheduled Departure, they are asking illegal immigrants who already have their final order of deportation to surrender and depart the United States. It has been started as a pilot program in California, Chicago and Phoenix on August 5. Immigration and Customs Enforcement (ICE) is advertising in local media in those places. However, only 6 of thousands of immigrants have departed so far.

Of course ICE is calling this a success. Which means that it will continue to use your tax dollars for this program. Mr Hayes, the Acting Director of Detentions at ICE, said he is disappointed at the lack of support of community based organizations.

Mr Hayes, if illegal immigrants wanted to leave the US, why would they be here illegally in the first place? Like you and us, they have children to feed, many of those children are US Citizens. And unlike “welfare bums” they have to actually work to feed their children.

TN to Green card

By | Houston Immigration, Immigration Policy, Visa | 2 Comments

TN visa is given to Canadian and Mexican Nationals under the NAFTA treaty. These individuals qualify for and work in jobs specified under a specific Schedule enumerated in the NAFTA Treaty with Canada and Mexico.

Unlike H and L visas, TN visa holders could not apply for Permanent Residency, (green card) because this visa was temporary and did not allow for dual intent (ie intent to hold both temporary and permanent visas) in the US. However, unlike visitors visa, the TN visa holder did not have to maintain foreign residency abroad. Also, a June 1996 letter by Yvonne LaFleur, Chief of Business and Trade branch at INS, said that the TN worker could do consular processing of their permanent visas. Although this letter is not binding, it has been followed by most Consular Posts.

Logistically, this was not possible earlier, because TNs were given for 1 year and most green cards took more than 1 year. So the TN visas would not be extended after that year if one applied for the Permanent Residency. However now TN visas are being given for 3 years. So many TN nationals can now probably apply for their Permanent Residency and able to do consular processing of their green card during this time. With only 65,000 H-1B visas available, it worth a shot for many desperate employers and employees.

J-1 Student Internship

By | Immigration Policy, News & Press, Visa | 3 Comments

The USCIS released final regulations regarding J-1 Student Intern visa. This new visa will allow a student, enrolled in post secondary education, to intern with private or Government sector employers for training. This will provide much needed work experience to foreign students. Previously the students could only work on CPT or OPT, and the length of time was highly restrictive. In contract, USC students could enter into any number of internships. Thus US students could have a competitive advantage in graduate studies or the job market.

It is nice to note that ALL students (and not just STEM students) can avail of this situation. The OPT extension, l by contract is ONLY available to STEM (Science, Technology, Engineering and Math) students. I still fail to realize how technology cannot include Engineering. Also I am appalled by the cold world era emphasis on Science in this day and age. If one looks at great works of literature, movie, music, it is primarily produced by hyphenated Americans, (like Chinese-American, Indian-Americans, etc.) Scan the Pulitzer or Oscar list. Same is true of any Management Degree holders, whose international experience is greatly necessary for global business. Yet the government only recognizes the need for STEM students. This is so reminiscent of the Cold War. But then, so is the War on Terror.

I-140 Portability

By | Visa | 119 Comments

You filed your I-485 under the July 2007 Visa Bulletin (VB No. 107). It has been more than 180 days. You cannot stand your employer, and have found a new employer who will continue the process. Can you Port your I-140 under AC21?

Below are some pointers to consider before you switch employers:

1. Is your I-140 approved?

If your I-140 is not approved yet, you need to decide if that case will be approvable. You have to decide if your first employer who sponsored you have the ability to pay, a valid job offer, etc.

If your first I-140 is approved already then porting becomes much easier

2. Is the new job same and similar?

The new ported job has to be same and similar. Both those jobs have to have the same DOT Code (for RIR and traditional cases) or SOC Code (for PERM cases), and the salary range offered in the underlying Labor certification has to be within a similar range. It is much better to have a copy of your original labor certification and the I-140 approval or receipt notice, to determine if the new job is same and similar.

  1. What if my first Employer withdraws the I-140?

It is not a problem if your first employer withdraws the I-140 after 180 days of the filing of the I-485.

  1. Can you port to a different Geographical location?

Yes, you can take a new job anywhere in the US and port the I-140

5. Should the new employer have the ability to pay?

Although technically the only factor that counts is whether the two employments are same and similar, the question of whether the new employer has the ability to pay can be a factor in adjustment of status

  1. What’s the worst case scenario?

If the I-140 Portability is denied for some reason, you can always retain the Priority date of the old labor for the adjustment under 8 C.F.R 204.5(e). But you have to start with a fresh PERM filing. This means if your 6 years of H-1B are over, you might have to go back to your home country until you can get your green card.

Treaty Visas

By | Visa | 3 Comments

The US Government signs treaties with various countries for nationals of those countries to come over temporarily.

These are strictly non immigrant visas and do not lead to Permanent Residency.

They can be filed either with the United States Citizenship and Immigration Service in the United States (as an extension or change of status) or with the Consular Posts

Note: India does not have any of these treaty benefits.

E-1 (Treaty Trader)

REQUIREMENTS:

  1. The applicant must be a National of the Treaty Country
  2. The Company in the US must have more than 50% of ownership in the foreign country
  3. Must be engaged in TRADE ie, international exchange of goods, services, and technology
  4. The Trade must be SUBSTANTIAL
  5. The Trade must be principally between the US and the Treaty Country (ie more than 50%)
  6. The Applicant must be employed managerial position or possess essential skills-similar to L-1 Requirements

E-2 (Treaty Investor)

REQUIREMENTS

  1. The applicant must be a National of the Treaty Country
  2. The Company in the US must have more than 50% of ownership in the foreign country
  3. The Investment must be substantial—- We will need to trace the source of that investment from the foreign country
  4. The Investment cannot be marginal- (a) must generate a net profit and (b) Create US Jobs
  5. The investor must have control of the funds, and the investment must be at risk in the commercial sense. Loans secured with the assets of the investment enterprise are not allowed
  6. Investor must be in a supervisory/managerial position

Caveats

  1. Both these visas continue until such time as the business continues
  2. The dependent wife and children can live in the US
  3. Please see list of necessary documents at the end of this page

E-3- for Australians

Given to 10,500 Australian Nationals. Very similar to H-1B visa, except that these are Temporary and cannot convert to the Green Card

The Procedure and Requirements are the same as the H-1B, ie Certified LCA, Educational Requirement, Professional Job, etc. Please read those requirements in the H-1B section of this web page.

VWP

Citizens of certain nations (Mostly European nations, Japan, and Singapore) do not need a Visa to visit the US. The allowable time limit for this Visa Waiver is a maximum of 90 days. This cannot be extended from the US, nor be converted to any other type of visa. Applicants must have a machine readable passport