The Perm Game

The Perm process is like a game. The basic proof is that there are no qualified Americans to do the job, and hence we must give permanent residency to the alien so that she can complete the job. To do this, the employer has to "test the market" by advertising and trying to recruit Americans, and if that fails then it proves that there are no qualified applicants in that area to do the job. But this recruitment process is very unlike what a real life employer would do, despite what the DOL (that is the Department of Labor, not the Dummies on Life) would say.

First there are strict requirements of who can do the job. Under the DOL guidelines Bill Gates, Steve Jobs or Michael Dell would not be able to perform a "professional" software job, because they do not possess a degree.

There are series of hoops and you negotiate through, the job title, the job description, the requirements (the all important EB-2 or 3) the OES (Obviously Enormously Stupid Department which takes every job and categorizes them arbitrarily into 4 job zones) and the prevailing wage category. None of this is natural, none of it real world. Its just your ability to play the game right. Its a great game for us, English majors who could never shoot an actual hoop.

Then you advertise in the Sunday Newspaper, who reads those anymore? Maybe the dinosaurs at the DOL still do, but when was the last time a computer professional actually looked at a newspaper?

Oh yes, and the all important SWA ads sites, the Department of Labor's job search web site. I wonder what the google ranking for those web sites are for specific search terms. I typed in "tech jobs in Texas" and did not see workintexas web site in the first page. Did anyone ever get an actual job from that web site?

Of course if you play this game right, and jump through all the hoops, you can file your case. But then comes the certifying officer. I wonder under the trickle down brain theory, what the IQs are for federal officers. The chief executive was rejected by St John's School, Houston, got into Yale through legacy, and probably has an IQ of about 100. So what does my certifying Officer have?

How to choose a lawyer

I have been practicing Immigration Law in Houston for the last 11 years, having graduated third highest from South Texas College of Law. I have seen many clients been swindled, abandoned, and left out of status for inadequate representation. So here are my tips on HOW TO CHOOSE A LAWYER. These are general tips for choosing any lawyer in general, and immigration lawyer in particular. I am assuming that readers of this blog will NOT go to a notario, or a lawyer not qualified to practice law.

HOW BRAINY IS YOUR LAWYER-----Ultimately a Lawyer is selling his/her brain power to you. The lawyer has to assess your situation and give you a creative solution. Thus his/her law school standing, how well she did in her class matters. Many lawyers practicing Immigration Law are not graduates of American Law Schools. The degree that you should be looking for is the JD degree. These foreign lawyers come over here, and do an LLM in Law. No American student does an LLM. You do not need to sit the competitive LSAT exam to get into an LLM program. Any law school, including Harvard, will take in ANYONE able to apply and afford tuition to their LLM programs, because law schools do not fill up their LLM classes. Foriegn lawyers often come from countries like India, where you do not need a brain to get into law school. (The science education in India is excellent, not law) So ask your lawyer if she/he has a JD, (and not an LLM) if so from where, and what his/her class standing was. Choose based on your lawyer's brains, not his/her ability to be nice to you.
I am sure none of those foreign lawyers could get into any law school in the US in a JD program. Law unlike medicine is NOT universal. It is specific to a country, a region. Foreign lawyers often do not have a clear picture of our body of law, our principles and constitution.

EXPERIENCE-Your Lawyer should have substantial experience (at least 5 years) in doing your type of cases. For instance if you have a family immigration case, going to a lawyer who only does business immigration law or assylum, will not help you. If you have a knee problem you go to an orthopedic specialist, not a dermatologist. So ask your Lawyer how long she has experience and in what type of cases. Do your due diligence and google search and learn what you can before engaging them.

BIG FIRMS WHERE THEY WONT CARE ABOUT YOU: So you walk into this shiny office of a big law firm, to be interviewed by a partner. He promises you that they know the "immigration Officers and have all positive results." You pay big bucks as retainer. That's the last time you ever talk to a lawyer. Your case is being handled by a paralegal, who has no brains. You leave messeges and e mails, none of which are returned. Please bear in mind, that unlike most other countries, NO LAWYER in the US has any special relationship to the Government. The big bucks that you paid just went into the lawyers pocket and his expensive upkeep. In general, turn around time is much slower in big law firms. In Immigration Law the day you file your case is your priority date and that date MATTERS. Most big law firm will take upto a month to file your case, a valuable time loss for you. So ask your lawyer about who specifically will do your case (a lawyer or a paralegal), who will return your phone calls/e mails, and when will they actually file your case.

FEES: Last but not least is the money. I would choose the middle of the road fees. The lower end fees are generally charged by incompetent lawyers, who may take your money and may not even file your case. The higher end fees go towards a shiny office for your affluent lawyer. Generally the middle of the road fees are the best.

Naturalization in an Election Year

Naturalization (ie making permanent residents citizens, and thereby voters) is always a big issue with politicians in an election year. Last July USCIS received about 1.4 million applications for naturalization, because starting August 01, 2007 the fee went up from about $400/- to $695/- Obviously the processing of all these applications would take time, and Mr. Gonzales had to answer to the Congress (particularly the democrats, who somehow think that most naturalized citizens will vote for them) explaining the delay.

The CIS has provided an estimate of the time it takes for their district office to complete the process. For instance, it will take 7.2 months in Albany, NY, and 10.1 month in New York, NY. It takes anywhere between 14.5 months to 5 months. However the time listed for Houston is 14 months, but we are getting all ours (ones with no problems) in 8 months . In any case, it is well before the November general election deadline, which should make our politicians happy. If only they could use the same resources for other cases as well.

Visa Numbers

Every country has a set amount of immigrant visas (green cards) that they get per year. (The DHS year starts on Oct 01). Thus a visa number must be available at the time when you get your green card. Naturally countries with huge populations (like India and China for Employment based, and Mexico for Family based) use up their visa numbers quickly and thus the people born from those countries have to wait longer. The USCIS gives visa numbers based on "Priority dates." Priority dates is the on which the USCIS receipts your case, ie the I-140 for Employment based and I-130 for Family based applications. This ensures that the first come application gets served first.

Immigration Laws have also devised categories. The Employment based categories are as follows:

Employment Based (EB) 1: No labor certification required. File only I-140 and I-485
Available for
L-1A Managers
Outstanding Professor or Researcher
Extraordinary Ability Aliens

EB-2 Labor Certification required
Available for
Advanced Degree Holders (at least a Master’s Degree)
Exceptional Ability

EB-3 Labor Certification required
Members of a Profession (at least Bachelor’s Degree)

EB-4 Religious Workers

EB-5 Investor (No labor certification or I-140 petitions. Instead file I-526)
Must invest $1 million in cities Or
$500,000 in areas of “Targeted Employment” and
Employ 10 full-time U.S. workers

The Family Based numbers are as follows:

NO WAIT: US Citizens’ spouse, parents and children under 21 have no wait time, and can come over or adjust status immediately

First Preference: Over 21 unmarried children of citizens

Second Preference-2A: Spouses, minor children (less than 21) of permanent residents (green card holders)

Second Preference 2B: Unmarried sons and daughters over 21 of permanent residents (green card holders)

Third Preference: Married sons and daughters of US Citizens

Fourth Preference: Brothers and sisters of adult citizens

Thus the wait time depends on your priority date, Preference Category and of course your country of birth.

For Employment based visas you can use either your country of birth or your spouse's country of birth.

The visa bulletin, published by the Department of State every month gives the dates/Preference category/country. To see the visa bulletin, click here:

http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html

H-1B lottery done

The USCIS has finished conducting the H-1B lottery for both the 20,000 and the 65,000 cases.

They have also "wait listed" certain cases, ie if the any chosen case is withdrawn or denied, these wait listed cases will fill their place. These cases will be held at the CIS office for now.

The CIS will now begin fee receipting and sending out the receipt notices. The cases not chosen will be returned. Since this involves a huge volume, the CIS stated that this process can take upto June 2nd. So this process will take about 6-10 weeks.

We will inform our clients immediately upon receipt of the receipt notices or the petitions back. Keeping our fingers crossed....

CAP and Name Check issues

H-1B cap

The CIS issued a preliminary report today that nearly 163000 H-1Bs have been filed for the ordinary cap, and 31200 for Master's Degree Candidates. The CIS will do the lottery of the Master's Degree Cap next week. The 11200 advanced Degree Holders not selected by that lottery will be put into the general lottery for the 65,000 people. For more on the OPT extensions, please see BLOG below

FBI-Name Checks

The CIS and FBI have reported that they have already eliminated all name checks pending for more than 4 years ago. Their goal is to eliminate:

For Name Checks pending more than 3 yrs------- May 2008


For Name Checks pending more than 2 yrs-------July 2008


For Name Checks pending more than 1 yr-------November 2008

98% of all Cases --------------------------------June 2009

The date for the name check is your receipt date for your 485 or N-400 petitions

US Master's Cap

The announcement by CIS yesterday that they have exceeded the 20,000 US Master's Degree holders for new H-1Bs was probably a big blow to many of us, because this is the first year that this has happened. Last year numbers were available until late April. Thus there will be a lottery for the US Master's Degree holders, and those that do not get in, will have their name put into the general category and have a second chance at the lottery. Yes, they also exceeded the 65K general quota.

While our Congress is determined to NOT pass any immigration legislation, the CIS has been trying to dangle a carrot (or should I say a poisoned apple) before the US Master's Degree holders' noses. Their OPT will be extended from 12 to a maximum of 29 months, provided the following condition precedents are met:

• Currently be participating in a 12-month period of approved post-completion OPT;
• Have successfully completed a degree in science, technology, engineering, or mathematics (STEM). Therefore if you have a BS- (even in say for example fine arts), you will be covered. But for the liberal arts majors, there is no hope. The Bush govt never patronized the arts anyways.
• Be working for, or accepted employment with, an employer enrolled in U.S. Citizenship and Immigration Services’ E-Verify program. E-Verify is a free, internet-based system operated in partnership with the Social Security Administration that helps employers to determine the employment eligibility of newly-hired employees;

This interim rule is effective April 08, 2008. CIS will accept comment until June 09, 2008 and thereafter issue the final rule.

Though this looks very promising, this is also a veiled attempt to get employers to enroll in the Bush Government E verify program. This program is voluntary still and attempts to make it mandatory has failed several court challenges. The reason behind this is that the E verify program is flawed, and result in discrimination against US Citizens of non white colors.

CONSTITUTIONAL DEFECT:

Under the 14th amendment of our Constitution the Government must give due process before curbing the rights of "any person" present in the United States in terms of their LIFE, LIBERTY AND PROPERTY. A US Master's Degree is a property right. The Government is denying the property right to work for graduates who are majoring in Business, Humanities, Arts, and Law. (Does Medicine fall under Technology?) These people are not STEMS, they are the seed to our economic development.

But then the Bush Government NEVER cared about the Constitution anyways!!!

A far better way to bridge the status gap issue of the OPT students would be to extend their status and enable them to work is simply to make the entire OPT system last for 29 months, no questions asked, for US Master's Degree Holders. Just ask any University how hard they have to try to get Master's Degree candidates in the first place!

H-1B Cap

Hopefully the last petitions have reached the Vermont and California Service Centers by now. Stay tuned for more on the lottery in this blog. I'll post them here as soon as they become available.

I cannot help but reflect on the CAP. In a year where the dreaded R word is echoed through out USA, when unemployment is at a record 5 year high, more H-1B s are being filed in 2008 than it was in 2007. Why? Because of the lottery. The employers know that only a portion of the petitions they file will statistically get in. This creates an artificial employment situation, one that is created by the Government rather than the free market economy. Employers have to project their need for the full year (until September 30, 2009) and calculate what chances they want to take with finding employees. This situation creates an artificial demand and supply.

Yet America was founded on the Laissez Faire system, and because of this system we have prospered, while Capitalism and then Socialism tumbled. We have let the market dictate our economy, whether its a bear or a bull market. Why then don't we just do away with the CAP, and let market forces dictate our employment based immigration? This is because the anti immigration forces, the very people who does not want a Government Controlled Economy, champion a restrictionist immigration policy. The net result is that Companies, without these professional workers, will just out source more work out of the US, resulting in less economic activity at home.

If we do not let free market economy dominate the US job market, can we then turn around and criticize Governments like Cuba who control every aspect of their economy?