The decade in Immigration Law-2000-2009

If this decade started with a bang for immigration law, it is definitely ending with a whimper. The two influences in immigration law are economy and politics. The decade started with the dot com boom and the signing of the AC-21 bill easing numerous provisions of business immigration law, including the ability to port petitions from different employers, the increase of H-1B numbers to 195,000. Yet even before the ink dried on that bill 9-11 happened, followed by the dot com bust. The H-1B quota, although always filled before the end of the CIS fiscal year, reverted back to the original 65,000; never to be increased again.

The Bush years saw NO immigration bills being passed. We, immigration attorneys did not need to learn any new things, except for a procedure change in the filing of the PERM. The Labor filings got better, best and now its back to being late again. We have traveled a full cycle there.

For the last couple of years the buzz words "comprehensive immigration reforms" created numerous bills all dying on the floors of either the senate or the house. Amongst the earlier ones with promise and somewhat of a bi-partisan support was the McCain-Kennedy. Ted Kennedy has since died, and John McCain unsuccessfully ran for President. Also dead on the floors are the 'Dream Acts" legalizing college grads who were brought to the United States as little children by their parents illegally. These promising students are illegal through no fault of their own, studied here, went to college here, but cannot work legally.

The economic recession of 2009 saw a rise in anti immigration feelings, along with raids by Government agencies to businesses hiring illegal immigrants. This was followed by the Obama administration on the H-1B raids. Small businesses, the backbone of the American economy is seeing their H-1B petitions denied in record numbers because the CIS believes that employers want to commit fraud. Which small employer can afford to pay $1570/- filing fees for each H-1B employee just to commit fraud?

Can the two parties with their divergent political views ever be able to pass one "comprehensive" immigration bill in the next decade? The Republican with people like
Joe "you lie" Wilson conservatives want to make life harder for illegal immigrants who work as day laborers or gardeners. Amnesty is a bad word for these "religious" right wing conservatives. The Democrats don't want business immigration, and cracks down on H-1B and other programs. At a debate on immigration Nancy Pelosi wanted to increase further the H-1B filing fees (because the businesses have the ability to pay)to account for the illegal immigrants which are hired by non H-1B employers.

Can these conflicting factions ever come to together and pass a comprehensive immigration bill? Unlike the health care bill the impetus to cut deals with senators to get their vote will not be there, because the bill will benefit a non voting section of society. Hopefully we will have a brave new decade.

Contact Houston Immigration Lawyer, Annie Banerjee for more details

H-1B and the CIS

In a letter to Senator Grassley, the CIS defended their H-1B adjudication practices and their everything under the kitchen sink Request for Evidences.

The CIS is looking into revising the form I-129 to have Petitioner and beneficiary both attest that:

The beneficiary has been advised of the offsite placement and accepts the terms of the H-IB employment, including the job location and possible relocation;

Really? Does anyone working for the software industry not know that they have to work off site. These people are always traveling, the beneficiary KNOWS they have to work off site. Same with Oil Company Engineers. Its the nature of their work. Does CIS seriously think the beneficiary does not know?

2. Placement of the beneficiary offsite during the period of employment will be in compliance with the statutory and regulatory requirements of the H-IB nonimmigrant classification;
3. The beneficiary will be paid the prevailing rate of pay at any offsite
location; and,

This is in line with the question on the I-94 application on the plane, "Are you a terrorist." Has anyone ever answered yes to that question? Similarly, will anyone filing an H-1B petition ever say they will not comply with the law?

4. The work itinerary is attached.

The H-1B is given for 3 years. It is difficult to predict the itinerary for all those 3 years. If the work itinerary is for less than 3 years, then the employer has to file the whole H-1B again, with the high fees. And even if they have the work itinerary, the job may be canceled, etc. So what is the point of private employers filing job itineraries with the Government?

All of this simply penalizes the small employers who form the backbone of the American economy.

Contact Houston Immigration Lawyer, Annie Banerjee for more details

State Dinner for India

President Obama is holding a State dinner for India and this is getting a lot of media coverage in the mean stream media. This is his first State dinner. Even Fox news mentioned that GOP leader John McCain was not invited. Yes, Fox news, but Mr. Conservative Bobby Jindal (who is surprisingly very Anti Indian) is invited.

Whats important is that India is rising as a Nation, and friendship ties between India (and China) and the US will strengthen both economies.

A lot of Hollywood personalities were invited, including Stephen Spielberg. And of course AR Rahman of Jai Ho fame.

What surprises me though is that meat is not being served, but prawns are. When I left India vegetarians did not eat meat, fish or eggs. They did drink milk. And some people did eat eggs. And we have some great national meat dishes, including the Tandoori Chicken and the British National dish of Chicken tikka masala. Well, at least they were pared the tasteless, no matter how you cook it turkey.

Happy feasting Mr. Obama and Mr. Singh!

Contact Houston Immigration Lawyer, Annie Banerjee for more details

H-1B site raids revisited

Computerworld is reporting that USCIS will conduct 25000 H-1B raids up from 5191 last year.

For more details on what the CIS is looking for in these raids please refer to two of my previous blogs.

Two of my clients were "raided" and another one had somebody visit the beneficiary's job site.

In all these cases the officer did not ask for any documents. They seemed satisfied that the job location site actually existed, and that the beneficiary actually worked there. Beneficiaries were not questioned extensively at all.

According to the Computerworld article the USCIS found "various problems including fraud" in nearly one in five H-1B applications last year.

Yes it is important to combat fraud. But much of the fraud is because the USCIS (as does the DOL) does not accept the reality of workplace situations. In the IT business the end user usually contracts with someone, who then contracts with someone else to get the employee. For instance, Computer consulting Company A has an individual ready to work. Computer Consulting Company A has a contract with Consulting Company B. Consulting Company B has an agreement with say Megacorp C to perform the work. So A contracts the employee to B who then place him at C. The CIS holds that Company A cannot petition for the beneficiary, since Company A will not control the beneficiary and hence is not the proper employer. Company B is.

Why should control of a professional matter? Do professionals with at least a Bachelor's Degree need control? Why cant the CIS look into the reality of workplace situations?

Instead the Government is using the $500 fraud fee that it collects from Employers filing for H-1b to hire workers who does not understand the complexities of the problem to act as policeman and visit sites.

Also in keeping with this fraud finding, the CIS gives out ridiculous "requests for evidence" (RFE) to small employers. They need everything under the kitchen sink. The Company's taxes, wage report, pictures, type of toilet tissue they use, coffee maker's name. I only wish I was kidding.

All this only discourages small businesses, the backbone of the US economy from filing H-1B petitions. Yet look at this year. From April 01 to November 13, only 55,600 applications have been filed. Is this not proof that the marketplace takes care of the filings, and that most employers do not file false petitions?

And lets face it, no small employer can afford just the government fees of $1570/- per H-1B candidate, not to mention attorney's fees unless they really want the foreign employee. So these employees are NOT taking US jobs, much as the democrats like to think. And true to the democratic principal, there are no more fraud investigations on family based immigration like "paper marriages", which are far more dangerous than simply not allowing H-1Bs who don't have contracts with end users not to file.

Contact Houston Immigration Lawyer, Annie Banerjee for more details

Lou Dobbs Exits CNN

Howdy,

I am Lou Dobbs. You probably heard by now, I am forced out of CNN.

And CNN claims they lost viewership because of me. Bull shit! See you popular Rush is.
Every reasonable person with an IQ of less than 100 listens to us. We along with Sarah Palin is the new face for the Republican party. Believe me, we will take down those democrats soon. If it means that every dog and cow in this country has to vote for us, we will see to it that it does. Not like Acorn, allowing illegal immigrants to vote. The dogs and cows have to be born in America and so do their parents and grandparents.

The liberal media has just gone out of hand! And I am sure that that illegal Obama personally requested CNN to throw me out. Folks, he is waging war against me, against Fox news. We are in a dictatorship folks, we are the same as Kim Jong IL. Face it, George Bush spent his time ,( when he wasn't hunting or sleeping,) working. Obama spends his time waging war against me. We are indeed in very dark days. And he is an illegal, holding the top job in this country!!!

When we take over America again, we will gather all the illegal immigrants and gas them. Yes, Hitler had the right idea. In fact, we should consider denying rights to non white people born in the US. They have no rights, their fathers and grandfathers were not born here.

Folks, rise up against that illegal bastard, Obama!

And keep listening to me.

Yours forever,

LOU DOBBS!

Contact Houston Immigration Lawyer, Annie Banerjee for more details

Health Care bill hinges on Immigration Issue

The Health care bill needs 40 democrats to vote to pass the House. According to Washington Post, 20 Hispanic democrats may not vote if the immigration language in the bill is taken out.

The Bill states that illegal immigrants cannot buy private insurance plans with their own money under the new plan.

Yes, the Obama administration is bending over backwards to pacify the anti immigrant Republicans. But these republicans, and yes, even Mr. Joe "You lie" Wilson of South Carolina have to have some amount of pragmatism.

These illegal immigrants are working here, making money. Many don't pay taxes. And guess what, they do fall sick. So they end up at Hospital Emergencies all across the United States and then we tax payers foot the bill for them. So in essence we are giving them free health care, and will continue to do so under the Republican "You lie" health care scheme.

Come on Republicans, do you want to give these hated illegal immigrants free health care? Let them buy their own out of the money they make in America.

Contact Houston Immigration Lawyer, Annie Banerjee for more details

Quotas in Immigration Law

Today's Wall Street Journal has their main front page article on how H-1B quotas have not been used up yet and argues that the market should dictate the numbers rather than Government quotas.

Arbitrary quotas have been ruled unconstitutional by all courts in every domestic affairs except for immigration law. You cannot have quotas for segregation or desegregation, for diversity in public education. You cannot have quotas at workplace. We read in Law School that quotas inherently violate due process. But I had to throw my constitution down my office window when I started practicing immigration law.

When the colonists came to America, there was no problem, no quotas. White Anglo Saxon Protestants could simply come and work. Then as more and more Italians and Chinese came in, restrictions began to be put in from 1875 onwards. Chinese were banned because they were "Coolie labor" for lewd and immoral purposes. After World War 1, the Congress restricted immigration to 2% of their nationality already settled in America. Since there were no non white people in the US at that time, most of Asia and Africa was shut out from the US. This was done to preserve the racial mix in the United States. Since then a lot of restrictive immigration Acts establishing arbitrary quotas were enacted and still valid today. The Permanent Residency Process has quotas in both Employment based and Family Immigration. So does the H-1B program for bringing in the brightest and the best.

These quotas have risen from anti Immigration and Xenophobic attitudes prevalent in America. As the Wall Street Journal points out, why should a very bright person from say India or China come to the US to be treated as a second class citizen, at the bottom of the social ladder? They would rather stay in their own country which are emerging economies. Yet, as the WSJ articles point out, 35% of Microsoft patents were developed by immigrants, and the person who developed Google News was an H-1B from India.

Those patents will just go to India, and someday the children or grandchildren of these anti immigration forces will seek immigration to India.

Contact Houston Immigration Lawyer, Annie Banerjee for more details

Foreign Labor Divison should only hire ROBOTS

In a number of recent cases the DOL has proved again that it values form over matter. It has set up rigid rules and follows the rules rather than understanding the rationale behind it. Thus it runs contrary to the philosophy of Common Law, which gave birth to our legal system. By taking out reasonableness and a humane case by case approach, the labor certification process has been reduced to at best a farce, and at worst hurting both American employers and American labor force.

The rules dictate that the PERM application be filed within 180 days of the first advertisement. In Matter of Spires Restaurant, The Board Of Alien Labor Certification Appeals (BALCA) ruled that the PERM application filed 187 days later will be denied. The 180 days is meant to be a current test of the labor market, and anything more than 180 days would be considered too old. But 7 days is de minimis and penalizing an employer for just seven days is ridiculous. There should not be a hard line rule, and each application should be judged on a reasonable standard in a case by case basis.

In another case, the DOL rules that the prevailing wage request exceeded the job requirement mentioned in the PERM form. If anything, that would generate a higher Prevailing Wage. The DOL, whose job it is to see that Americans get the job before it is given to aliens, should not mind if the employer posts a higher wage than is required for the position. In The Matter of Florida Restaurant group, LLC

The last one is equally inane. In The matter of EDWARD J. TIERNEY the position was that of a DOMESTIC worker. This was a family. The DOL required a FEIN number instead of a Social Security Number. I wonder if the family of Bill Carlson has a FEIN, and if it does, what type of business do they conduct? With all his contacts at DOL, I would not be surprised.

Of course, the DOL continues to advocate publishing in major Sunday newspapers. That really is a good thing for Employers seeking to hire Aliens. No one reads those anymore, and in a matter of time, the only major newspapers will only exist in NYC and LA areas. The rest of the country will be left with community newspapers. But the DOL will not change!

We have now a ton of personnel working at Foreign Labor division of the DOL. These people will never loose their job. Why then are they doing the work that a computer system will do just as well. I say, replace them, from Bill Carlson down to the lowest level with ROBOTS. Lets use that money for health care instead.


Contact Houston Immigration Lawyer, Annie Banerjee for more details

H-1B Auditers, what they have to fill out

The following is a simplified version of the instruction sheet that the H-1B Audit inspectors have to fill out:

1. Does the facility visually appear to be that of the organization? (Take pictures if possible of the building with Number of building.

Include in narrative box:
1) Description of the location:
• Commercial office unit;
• Apartment or condominium complex;
• Single family residence;
• Mail center/postal location; or
• Virtual office (a business with multiple small workstations leased to numerous entities).
indicate if any other businesses are sharing the site location and the names

2. Was an organizational representative authority present?

In cases where contact cannot be made
Inquire with neighboring businesses and/or residents to determine:
• . If the business actively engaged in business activities.
• The business' normal hours of operations.
• It they are familiar with the benefic1ary and/or petitioner.

3. Did results of site visit suggest the presence of a legitimate organization?

Include In narrative:
1) Indicate the product end/gr service the company provides.
2) Number of employees.
3) Number of H1B employees that work full time.
4) Number of H1B employees that work part time.
5) Number 01 employees working on-site at this location, verses off site.
6) Number of clients the company has where their H1B employees are working.
7) Number of employees how that are non immigrant aliens.
8} Number of employees that are lawful permanent residents.
9) Length of time the organization has been in business.
10) Number of other locations the organization is located. List other.locations.

4. Did the organization have knowledge of the beneficiary and the petition filed on Please note that even if the employer's secretary has knowledge of who the beneficiary is, and the signatory of the petition is not present, the secretary should only state that, and not try and guess on answers that the Auditors are asking

5. Was the beneficiary working for the organization
behalf of the beneficiary?

Include in the narrative:
1) Whether or not the beneficiary is employed by the organization and what supporting documentation was reviewed (i.e., recent pay stubs, business cards, Employee ID).
2) If the beneficiary is not currently employed by the organization:
• Indicate where the beneficiary is currently working; and
• Why the beneficiary Is not employed by the organization.
3) The hours the beneficiary works.
• Full-time or part-time position.
4) If the beneficiary Is employed somewhere else:
• Where?
• What type of work?

6: Were you able to identify and speak to the beneficiary

7. Was the beneficiary knowledgeable, cooperative, and forthcoming with questions

8. Was the beneficiary being paid the salary as indicated?
posed?

9. Was the beneficiary performing the duties as indicated

10. Do you recommend further inquiry?

Contact Houston Immigration Lawyer, Annie Banerjee for more details

Mojave Cross, Scalia and Religion

Dear Justice Scalia,

How can you say that the Cross is not a religious symbol? Is it really the "most common symbol of the resting place of the dead? "

How many Christian die in ratio of the addition of Muslims, Jews, Hindus, and all other religions?

You have not lived your life as a non Christian, especially in the South. When I first came into this country, I came with a commodity lacking in the US, a brain. My children were enrolled in River Oaks Baptist School in Houston, Texas.(ROBS) There, they were probably the best students (they subsequently went on to Yale and Duke while the majority of ROBS students have IQs like Mr. G W Bush), they were severely discriminated against because of their race and religion. They were given bad evaluations, put in lower level classes, and constantly put down.

Once when we were seeing a Japanese dance, my six year old daughter commented that "mom can I paint my face white when I go to school." When I asked why, she replied that , "then kids would play with me, and teachers will love me."

She was told to expand on a bible verse that said that people who believe in images are like dogs. We are Hindus.

When I went to law school at South Texas College of Law quite a few teachers thought that I was not smart because of my skin color or ethnic origin. I graduated third highest from that school. I also studied on a full academic scholarship. Oh yes, grades were blind, profs did not know whose papers they were grading.

When I go to Court, the many judges do the same thing, look at me as if I don't know anything. And yes, in Texas Courts, the Judges have bibles on their desk. Its a chilling reminder to me that me and my faith are outsiders to this country.

We have to decide, whether we will be the open country for all religions, like we were when the pilgrims came, or be pro one religion, like Iran.

Look at the list of Nobel Laureates in Science in 2009. How many of them are American Citizens? All but one. How many of them were born in America? None but one.

Justice Scalia, unless we create a tolerant society, we will loose our standing in the world. Do you really want to go back to the 50s America?



Contact Houston Immigration Lawyer, Annie Banerjee for more details

H-1B raids increase

Office of Fraud Detection and National Security (FDNS)is conducting raids to H-1B business in an effort to detect and deter immigration fraud. The following blog is borrowed from an article by American Immigration Lawyer's Program, and is meant to advise employers as to what to expect.

Employers should right now have the public access files for their H-1B employees ready. This file should contain the wage determination, the LCA, and a note on when the LCA was posted. It should also contain a copy of the H-1B petition.

The Government raids are conducted without warrants, and without prior notice. The Officer usually carries a copy of the H-1B petition. The officer then inspects the premises (and can take pictures). They will request to speak to the person signing the petition, but since the visits are unannounced, the officers are fine if the person who signed is unavailable. They may ask for copies of the beneficiary's pay records, W-2 and also the employer's tax records, quarterly wages, etc to prove that business is being conducted.

Then they also interview the beneficiary. They may ask details about the job description, employment dates, position, dependents etc. After this they might also want to speak with the beneficiary's supervisor or colleague.

Here are some suggestions from AILA if the Government shows up:

1. Call your attorney, they can be present over the phone while the raids are being conducted.

2. If there is no designated official in the Company at that time, who is knowledgeable about the petitions, the officials should be told about that. Company Employees should not guess and say answers if they don't know about the petition. Also if your company has strict policies against photographing, etc, please advise the officials accordingly.

2. File amended petitions, LCAs as necessary to keep files updated with changing situations. Wrong information could lead to a denial of the H-1B, even though the initial adjudication was an approval.

3. Request the name, title, and contact information for the site investigator. Ask for a business card and phone number. Multiple agencies are doing these visits, and it is important to determine which one is doing the site visit.

4. Don't speak to the investigator without a witness present. Make notes of what transpired as soon as the meeting ends. Keep a list of all documents submitted.

5 If the beneficiary has been placed at a client site not controlled by the client, the client should notify the end user about the current FDNS H-1B assessment program and the possibility of a site visit. If there are multiple companies between the H-1B employer and the end user, the end user should be made aware of the identity of the H-1B employer and review the terms of the assignment. The employer should request that the end user company contact the employer at the beginning of an FDNS site visit so that the employer and/or its representative may be present either in person or by telephone during the site visit at the end user’s location.

Vermont Service Center has sent about 20,000 companies to be audited, and California would also send about the same.

Contact Houston Immigration Lawyer, Annie Banerjee for more details

Health Care and Immigrants

Last night during Pres. Obama's speech on health care to the joint session of Congress, when President Obama said that the new plan would not cover illegal immigrants, Republican Senator Joe Wilson fro South Carolina could not hold back and shouted "You lie." Without going into the fact that this was totally disrespectful, and not the way any US Congressman should behave, and reminiscent of those town hall meetings where conservatives just wanted to shout down any debate, we can safely assume that Mr. Joe Wilson hates illegal immigrants.

For the record, Obama's administration is much harder on illegal immigrants than Bush'.

The E verify program has been extended in Obama's time to encompass ALL federal contractors. The ICE crackdowns on illegal workers are much harder and frequent than the previous regime. For the first time, the money used to prevent fraud on H-1B categories is being utilized to see if any employer is violating the terms of the H-1B visa. And the health care bill in Congress now SPECIFICALLY prohibits illegal immigrants from the bill.

Yes, illegal immigrants are here. They work for us. Many pay taxes and get sick. Most of them wind up in emergencies when they have something serious. The price tag for that is staggering? So what does Republicans like Joe Wilson want to do? Make the illlegal workers work in out kitchens, our gardens, and as soon as they become sick, deport them post haste? Are we becoming Nazis ?

Contact Houston Immigration Lawyer, Annie Banerjee for more details

Killing the Innocents in Texas

Today I am ashamed to be a lawyer from Texas. The recent issue of the New Yorker had a story about one confirmed case where the State of Texas put an innocent man to death. Mostly because the Texas Board of Parole and Pardon did not READ a forensic report in the man's file!

Cameron Todd Willingham woke up one December morning in 1991 to his house burning in fire. He was found by a neighbor in the porch with soot on his chest, screaming, "My babies are burning up." Even though by fireman's accounts, he tried disparately to run into the burning house and save his three children, he could not. The fire was too intense and the firemen restrained him. His children died. The forensic report from Texas said that the fire was intentionally caused by Mr. Willingham. The Defense Attorney wanted him to plead guilty for a life sentence, but Mr. Willingham said he would not plead guilty to a crime he did not commit. This was taken by the Court to be a sign of unrepentance, and he was, like so many others in Texas put on death row.

However the forensic report was based on witchcraft and had NO scientific merit. Dr. Gerald Hurst, a Nationally acclaimed forensic expert studied his file pro bono and concluded that there was NO WAY the fire could have been started intentionally. He concluded that the forensic evidence in Wigginham's trial was based on "junk Science." But the members on the Texas Board of Pardon and Parole did not even bother to read the Hurst report!

Texas has the highest death penalty rate than any other democracy. We put God knows how many innocent people to death. How are we different from North Korea, Iran or China? And if we are the same, how can we morally criticize those countries?

From all over the world people come to the United States as a beckon of freedom and liberty. We don't hesitate to lecture to other countries whenever we see any breach of freedom. Yet we put innocent people to death! Shame on Texas and shame on all the lawyers who are licensed to practice in this State. And that includes me.

Contact Houston Immigration Lawyer, Annie Banerjee for more details

Due Process at Consular Posts

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

icert gripe

Employer: I got this contract to start work in 1 week. I have the perfect H-1B guy. Can you have the petition to me by tomorrow?

Attorney: No can do

Employer: Why? You always do that.

Attorney: That was before July 1. iCert will prevent me from doing that now.

Employer: iCert?

Attorney: Yes, the new LCA system. We file it, then wait 4-5 days. Then hopefully if the DOL can identify your FEIN, we may get an approval. If not, you submit FEIN documents to DOL, wait 4-5 days. DOL verifies it, then you need to file again. Then wait 4-5 days again...... This is a song that never ends, it goes on and on my friend

Employer: Stop singing, you have no tonal sense. So wait, wasn't the purpose of AC-21 to increase competitiveness in the workplace with Employers being able to hire and get work done more quickly? Has Obama changed the century on us as well? Do we have a new AC-18?

Attorney: Ummm, the only thing that Obama wants fast is that health care reform. He said immigration has to wait. Besides the DOL is terrified that we are all trying to pull one over them. All of us trying to file fraudulent LCAs, our Government doubts everything we do

Employer: Thats bullshit! This is not fucking North Korea. This country was built on trust, where we elect our Government and have mutual trust. Besides illegal people don't file H-1B. H-1Bs are professionals who will go back to their country if they don't have a job. So this Computer program that DOL has, was it even beta tested?

Attorney: Calm down Sir. You just have to be patient. I quote from DOL's stakeholder's meeting on 07/31:"iCERT Program has only been operational for 3 months at this time, so bugs are to be expected at this point." Also Sir, If we file an LCA, and it is denied, the notice will only go to you, not us. Can you kindly forward it to us?

Employer: I am not dealing with this. I'll just outsource the work. Maybe the DOL should have hired H-1B professionals to design a better program.



Contact Houston Immigration Lawyer, Annie Banerjee for more details

Obama Administration and Immigration Enforcement

In an article published on August 3, in the New York Times, the Obama Administration, contrary to their campaign promise is pursuing the same policy as its predecessor, President Bush on Immigration Enforcement. They are increasing the I-9 audits, the E Verify program, and has introduced a program to check the immigration status of every person held for any crime. While these policies are meant to deter illegal immigration, the potential for civil rights violation especially of Hispanic Americans in any one of these programs is very great. In any of these programs racial profiling occurs routinely.

The New York Times article quotes Senator Charles Schumer (D NY) as saying that this stance is in preparation for the immigration legislation to be introduced later in the legislature. "Democrats have to “convince the American people there will not be new waves of illegal immigrants” after an overhaul passes," Senator Schumer told the New York Times.

While that might be the case, a significant amount of Hispanic supporters are not happy with this policy. And Hispanics are the fastest growing segment of the American population.

Additionally, no matter what the Democrats do, the hard core republican will always perceive the democrats as soft on immigration.

Immigration enforcement should be left up to the harsh realities of the marketplace. If there is a need for foreign workers, businesses will get them. No one will cross illegally into the United States, risking life and limb, leaving behind their families, if there is no jobs in the United States for them to do. That way it satisfies the Republicans in their Laissez Faire economic policy and satisfies the Democrat's pledge to restore the civil rights of every American which was taken away by the Bush Government.

Contact Houston Immigration Lawyer, Annie Banerjee for more details

The New iCert LCA

This blog is not about how the DOL took something that was instantly certified, so that business could move forward, and slowed it down. Yes, there's much to gripe about there. Our H-1B process will become much slower, but then, why should the Government aid is speeding up business? We have slowed down as a nation, we are just standing and smelling the non existent roses.

No, this blog is about DOL's use of the English language in the Prevailing Wage section of the LCA. Bear in mind this form is to be used not by attorneys, but mostly by Employers when they move H-1B employees from one location to another.

The first question (G-7) is Agency which issued Prevailing Wage. Most Employers just look at the Online Wage Library which is maintained by Foreign Labor Certification Data Center. This is overseen by the Department of Labor. Agencies are little orgs inside a Department. Just because the FLC Data Center does not end with an A, an US Employer should know its not an agency, right? I don't see why the question asked in the previous LCA (ie What is the source of the prevailing wage?) is not adequate. Why ask 20 questions to get to the right answer? Wait, its probably a game.

Next (G11b) is this wonderful English crafted by the PhDs at the DOL. It says:

If “OES”, and SWA/NPC did not issue prevailing wage OR “Other” in question 11,
specify source

Yeah, this means If you used OES or Other, (AND you DID not use SWA/NPC) then write down the obvious answer FLC Data Center.

Can you use a comma before AND?

This reminds me of Lynn Truss' book Eat, Shoots and Leaves - The Zero Tolerance Approach to Punctuation. The story goes like this: A panda walks into a bar. He asks the bartender for some plant shoots and leaves and a beer. He eats, shoots the bartender with a gun and leaves. The owner looks up the definition of Panda in Wikipedia. It says a Panda eats shoots and leaves. The difference between the two is a comma between eats and shoots.

What University gave Bill Carlson his PhD?

Contact Houston Immigration Lawyer, Annie Banerjee for more details

I-9 Audit

Every Employer in the US has to fill out a valid I-9 form for every employee. The form addresses whether the employee has the legal authority to work in the United States. The Employer is supposed to keep copies of documents like H-1B approval, or Green card, etc in their file, and update them as it becomes necessary. It has so far been an honor driven system, and the Citizenship and Immigration Services rarely audited them.

However the Immigration and Customs Enforcement (ICE) announced on July 01, 2009 that it will step up its audit for the employers. It has already issued 652 notices of Inspections to businesses. The Employers will have to surrender all I-9s within 3 days. For large employers there may be many instances that the I-9 has not been updated. Small employers may not even know about the requirement to keep I-9s.

The US Government has instituted the E-verify system, where the employer has to input the Social Security numbers of their new hires into the Government computers, and they will know if the employee is legal to work. However, if the employee used false IDs and SS Numbers, and the employers knew about it, they will not be immune, simply because E verify passed it.

Recently Krispy Kreme Doughnut Company was fined $40,000/- for I-9 valuation.

All Companies should do their own audits of their I-9 and update everything as soon as possible.

Contact Houston Immigration Lawyer, Annie Banerjee for more details

The Non Immigrant in this economic downturn

Loosing a job is never easy. Each and every one of the 14.7 million people who lost their jobs in this economic downturn has felt the sinking feeling in their stomach, the worry of uncertainty, and the stigma of failure. But United States citizens can survive. Yes, its hard for an accountant to deliver pizza, but its some money as opposed to nothing. It’s an entirely different story with the non immigrants.

Employees in non immigrant visas like H-1b and L-1 are the first to let go off by companies. Since their visas depend on one particular employer, they cannot get any job any where. If they are not lucky in getting another Employer sponsor within a month, they have to convert to either student status, visitor status or go back. The Citizenship and Immigration Service is denying significant amount of visitor’s visa for laid off employees. And the cost can be far reaching

I had a client who worked for 25 years for an oil company in Saudi Arabia and 1 year in the United States. And then he got laid off. He is an Indian national, and his only option is to go back to India. He has a house in the US, which he will loose money on selling. But the real cost is that his teen age children had never studies in India and will be hopelessly lost in the Indian education system. He will not have money to provide for private schools.

Another client was coming back to work after visiting India for his father’s death and was informed by the Customs and Border Patrol in the airport that his employer fired him and revoked his H-1B visa. In many cases non immigrants have postponed scheduled visits to their home country for fear of being laid off. Some women are not taking maternity leaves after their babies are born for the same reason. Thus the human cost for a non immigrant who is laid off goes far beyond finances.


By law a non immigrant looses their status when they loose their jobs. 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. They of course have to submit copies of their last pay stub with this new transfer.

If not, one should consider either filing for a visitor's visa, student’s visa or go back to their home country. A Visitor's visa may be necessary to extend their stay to be able to settle their financial affairs here. One should file the Form I-539 and explain the situation. They should also show sufficient resources in the United States to stay here. Very often the Citizenship and Immigration Service is asking for proof of ticket purchase to return. Also the reason to stay here has to be compelling. Citizenship and Immigration Service is afraid of people staying here illegally, and thus there is a high rate of denial of these change of status applications to a visitor’s visa.

The employee can also seek admission to a school and convert to a F student status. School benefit from foreign students and foreign students benefit from the education. However one has to actually study. Just registering is not sufficient.

After converting status, if one has time remaining in their H-1B status (ie, they have not used up the six years), they can go back to the H-1B status any time they find another H-1B sponsor. They do not have to enter the crazy H-1B lottery again. Even if they are back in their home country, they can file for the remaining period on their H-1B. Please see December 05, 2006 memo by Michael Aytes, Acting Director of USCIS.

By filing for a conversion to the B or F visa, or by leaving the US, they actually stop the running of the 6 year H-1B clock and preserve the remaining time. So when the economy picks up again, and trust me, it will; they do not have to enter the H-1B lottery again, and simply convert or come over on the H-1B visa.

Whatever one does though, they have to be careful not to accrue illegal presence. According to that infamous law acronymed IRAIRA, if one has a 6 month illegal presence they are barred for 3 years, and if the illegal presence is 1 year or more there is a 10 year bar.

On the plus side, there is still H-1B numbers available. As of July 03, the Citizenship and Immigration Service received 45,000 of the 65,000 per year quota for H-1B visas. Businesses are slow in hiring, and that is true especially of non immigrants. So for those lucky enough to find an employer sponsor, there is no lottery unlike previous years.

Hopefully we will all emerge from this economic downturn without too much scarring. Hopefully the US will still be looked upon as a kinder gentler nation, and will continue to draw the brightest and the best to maintain our top position in the world marketplace.

Contact Houston Immigration Lawyer, Annie Banerjee for more details

What is a Company for Immigration Purposes?

A Company is defined as its Federal Employment Identification Number (FEIN) for Immigration issues. When a Corporation seeks to hire a foreign national under a federal Immigration Law, it stands to reason that the Company should have a FEIN in order to hire that individual.

In a recent decision, In the Matter of Ornelas Inc, The Board of Immigration Appeals verified that the Company's yellow page listing, or business licenses does not establish a bona fide Company.

Additionally, if two related companies have two different FEIN numbers, and the alien has worked for one entity, and the other entity is sponsoring the alien, the alien can use that experience and it will not be counted as experience from the same Company. Usually the alien cannot use the experience from the same company for labor certification, with the rationale being that the company can easily employ and American and train that person as well. But if say XY has two FEIn numbers, and the alien has worked for a division of Company X, and the petitioner is Y, then that expiration can be counted, even though the two companies are in the same location.

Thus if the two related companies have two different FEIN numbers, the Labor Dept treats them as two separate companies. Does not make sense, but then, the Dept of Labor never lives in a real world.

Contact Houston Immigration Lawyer, Annie Banerjee for more details

Naturalization Interview In the Houston District Office

In the Houston District Office this is a three step process.

First you will go with an Officer in a little cubicle and be administered the test of English and Social Science. The exam consists of about 10 written questions from the Citizenship and Immigration Service list. After that the Officer will test your English by asking you to read something, or write down a sentence or two. For a copy of the list please go to http://www.visatous.com Go to Links and click on New Naturalization test.

Provided you pass the test, you will then proceed to the next step. This is the actual interview with an Officer. The officer will go over the factual elements of the case. These include whether you had continuous residence, physical presence and whether you have good moral character (ie not convicted of a crime). They might also ask you whether you affirm the Oath Requirements of Section H on Page 9 of the N-400 Form. They are:

Do you support the Constitution and form of government of the United States?
Do you understand the full Oath of Allegiance to the United States?
Are you willing to take the full Oath of Allegiance to the United States?
If the law requires it, are you willing to bear arms on behalf of the United States?
If the law requires it, are you willing to perform noncombatant services in the U.S. Armed Forces?
If the law requires it, are you willing to perform work of national importance under civilian direction?


Provided you pass the Second Step, you proceed to the third step. The Citizenship and Immigration Service will schedule you for the oath ceremony and hand you the necessary papers for the oath ceremony.

After you take the oath, you become an US Citizen.

Contact Houston Immigration Lawyer, Annie Banerjee for more details

Judge Sotomayor-Can anyone overcome heritage?

Mr. Obama's nominee for Supreme Court Justice Judge Sotomayor has lived the American dream, from a poor household in the Bronx, to Suma Cum Laude Graduate in Princeton, to Yale law school. Yet there has been a lot of criticism about the fact that she said that her experiences as a hispanic will lead her to have a different world view than say a white male. The conservatives have labeled her a racist. Yet, can we ever be race neutral? Stephen Colbert aptly points that out when he says he does not see color.

Sentient human beings believe in things, shaped by their experiences in life. A republican may have a pro life, pro second Amendment, anti gay views. A democrat may have the opposite. yet each individual can argue and give rational explanations for their beliefs.

Yet, someone of Sotomayor's intellectual capability can dissociate their private beliefs and look at the facts of a case. Can Scalia, Roberts or Alito ever rule for, lets say a gay couple, no matter how compelling the facts of the case are? Are they then not being prejudiced as well?

Contact Houston Immigration Lawyer, Annie Banerjee for more details

Immigration Enforcement By Local Police

Local Law Enforcement Agents have increasingly tried to enforce immigration laws. Everywhere from Arizona to Texas, local police routinely ask to check immigration documents, and most times do not even understand what those documents mean.

A 256 page report that came out of the Police Foundation today concludes after a year long National research that Immigration Enforcement by Local Police is detrimental to the Core Mission of Local Police.

Very often the enforcement begins as a form of discrimination. For instance when a Houston Police Officer was killed by an undocumented alien, the Police Department started working actively with ICE, to hunt for illegal immigrants. I sympathize with Policeman killed in the line of duty. They are protecting us and risking their lives, and it is indeed very unfortunate. However, the Police Department cannot single out killers based on their race, national origin, color, etc. I am sure at least one Policeman in Houston was killed by a white male. Do we now work towards vilifying all white males? Of course that ridiculous.

Then there is a perception that most crimes are committed by undocumented aliens. The Report by the Police Foundation concludes that, "These perceptions, however, are not supported empirically; in fact, they are refuted by the preponderance of scientific evidence.

The Bush Era of denigrating the US Constitution has ended. Lets return to the rule of law, where every individual has civil liberties.

Contact Houston Immigration Lawyer, Annie Banerjee for more details

Knowing stealing your identity

On May 4, 2009 the Supreme Court in an unanimous decision declared that in order to be a crime for identity theft, the person must know that he is stealing the identity of another person. Flores Figueroa V United States No. 08-108.

Mr. Ignacio Flores Figueroa entered the US illegally from Mexico and presented his employer with a false social security card, and green card bearing his name. He did not know that the numbers belonged to real persons. The Government charged him with aggravated identity theft crime. But in the US, a crime must have a mental (mens rea) component to it. For instance, if a person is insane and does not know right from wrong, and commits a murder, she cannot be held criminally liable. In order to commit a crime, a person should must have the intention to commit the crime.

The Supreme Court pointed out that in most cases proving that the user knew the identity of the person stolen is not difficult. But the documents that Flores produced had his (Flores') name on it. He did not know, that the number belonged to a real person in the United States.

People who had their identity stolen will obviously be outraged. But we have a long standing tradition in this country that a crime has to have a mental component. If we let this tradition slip, we will have to jail people who unintentionally commit a crime. The State has no moral authority to take away the liberty of people for their unintentional act. Stolen identity can be restored, although this may be a painful process. But taking away the liberty of a person violates the very principle of life, liberty and the pursuit of happiness that the United States was founded upon. I applaud this unanimous decision by the Supreme Court.

Contact Houston Immigration Lawyer, Annie Banerjee for more details

DOL's Emphasis of Form over Matter shot down

The Department of Labor, Foreign Labor Certificate Division had always been emphasizing form over matter. The Perm form (and to an extent even the LCA form) is all about form, not much about substance. You have to do things just a certain way, or you get denied. Such was the case of the Kellogg language which needed to be inserted if the employee qualified for a job in an alternative capacity. For instance, if the job is for software engineer and the employer will accept software degree holders or say MIS or any combination of that; then the PERM form should have the magic language that was mandated by a case called Kellogg. As long as the employer (or attorney) put in the magic language,"“any suitable combination of education, training or experience would be acceptable", you are good to go. This requirement does not have to be in the advertisement, or anywhere except the PERM form. When it is apparent that the employer will accept alternatives, what good will sprinkling the magic language into the form achieve? Thankfully the Board of Labor Certification Appeals recently ruled that it would be fundamentally unfair to deny certification based solely on the fact that the employer did not sprinkle the magic language into the case.

Our legal tradition had always emphasized matter over form. But thats not the case in immigration law where still form is emphasized over substance of a case. Already this field of law does not attract the top law students. I think in the future immigration law (unless of course it changes)will be performed by robots.

Contact Houston Immigration Lawyer, Annie Banerjee for more details

The NEW LCA (iCERT) Portal

The Department of Labor has just introduced a new spiffy internet portal called iCERT. http://icert.doleta.gov

Employers and Attorneys have to sign on to the new portal, and cannot file new Labor Condition Application (for filing H visas) on the old system anymore after May 15.

The new portal looks great. It has everything in one site--- wage determination, LCA, PERM, etc. But most if not all attorneys and employers have a huge database of clients who they represented over the years, and that data is stored in what they call the legacy sites. The new site has a link to the old site, but data from the old site will not transfer to the new portal. Which means a lot more unnecessary work for us. Neither does data transfer from one part of the portal like wage determination into another part, like ETA 9035, the LCA form. So why then have everything under one portal?

I don't know how much tax payer dollars went into building this new site. But I think whoever designed this just did not think and thinking is of course not part of any Governmental job.

Other minor irritations with this site is that every time you log in, a screen pops up saying ALL data will be "monitored, intercepted, recorded, read, copied, or captured and disclosed in any manner by authorized personnel." Yes, we know this is public record. We dont mind. But must we have to click it EVERY time! Why can they not have it only the first time.

The secret questions which you submit to DOL, the answer to which you have to recall if you should forget your password or have any problems, all deal with "your favorite....." I (and most users of this database) are not TWEENS. I don't have, Oh my God, my favorite food, my favorite movie, and of course those vampire books, and I'll always love Zac Efron. I didn't even know who Zac Efron was until he came on SNL last week. The DOL does not realize that the world for us has variety, and we have multiple favorites.

And yes, we cannot at present think of any other useful thing to do with tax dollars than building a new spiffy web site for the DOL.

Contact Houston Immigration Lawyer, Annie Banerjee for more details

The Reentry Permit

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

H-1B Numbers

Please note that as of today, 42,000 H-1B new cases have been filed out of the 65,000 cases. For the Master's Cap they have received an additional 20,000 cases. So the US Master's Cap is almost full, but the ordinary quota remains. Please note that US Master's Degree holders can file under the ordinary CAP.

USCIS will continue to accept cases, until they fill the quota. On the last day, when the quota is reached, they will hold a random lottery for that day only.

So good news for people who already filed, they will get in. Of course the approval is another matter.

Contact Houston Immigration Lawyer, Annie Banerjee for more details

H-1B numbers

This year, like the last two years, we all filed the H-1B petitions by Fedex or Express Mail on March 31 to reach Vermont or California by April 01. Some were filed for the next five days. And we all know the number of filings were not as high this year. And then we waited, hoping praying that we will get in.

Its now April 07. And the CIS is totally silent as to the numbers. We presume that if there was to be a lottery, they would have announced it. The only thing they said was that a small number of Petitions were receipted in error. (I did not have any erroneous receipts).

We don't know how many numbers are remaining or when the numbers will be exhausted. The USCIS has a twitter account. At the very least they could have twitted something to the effect that the H-1B numbers are not reached yet. It was hard enough for beneficiarys this year to get a job sponsor, and its not fair that they keep wondering whether they have to face the lottery or not.

And on the twitter note, I wonder when I'll get the twit from USCIS saying that "today we are not feeling like approving any cases." Welcome to the hip and cool Obama Administration USCIS.

Contact Houston Immigration Lawyer, Annie Banerjee for more details

My Predictions for NEW H-1B this year

The Government year starts on October 01 and each year the Government dishes out 65,000 new H-1b visas . Employers can apply 6 months before the start date, so each year the first day that they can apply for new H-1Bs is April 01.

In 2007 and 2008 significantly more than the 65,000 quota applied on the first day, ie April 01. As a result the CIS held a lottery as to who could get in, and only those lucky enough to win the lottery got in.

This year will be different. This year it will probably not be a lottery. For the first time, we are seeing a significant reduction in the number of Employers seeking new H-1Bs. Many H-1B s are out of jobs, as are many Americans. Employers are not hiring. The only sector still hiring are renewable energy industries and they are mostly employing Master's Degree holders from US Universities.

So Beneficiaries lucky enough to find an Employer to sponsor them will probably get in this year.

However there will be intense scrutiny on the H-1Bs from the Government. The CIS will scrutinize the Company's ability to pay and the beneficiaries' qualifications very minutely. There probably will be significant amount of RFEs and significant amounts of denials. If the beneficiary is from a foreign country, the Consulates will provide another layer of hurdle to overcome.

Part of the reason for this is that the Government knows of the dire employment situation and does not want to permit fraud. Also the Government uncovered a lot of fraudulent practices by several small consulting companies, including falsifying beneficiaries' resume to place them in jobs they do not have skills for, not keeping LCA promises, etc.

Therefore this year's H-1B will be a mixed blessing.

Contact Houston Immigration Lawyer, Annie Banerjee for more details

Irrational Thoughts on Immigration

I had been brought up to think Rationally. But the stock market has gone completely irrational. My attempt to understand it rationally has just left me confused, muffled, despairing. So in order to make sense of this crazy world, I am attempting to think irrationally. Maybe then I'll be in sync with the CIS thinking. Try calling them and asking why your case was not adjudicated, even though similar cases filed months afterward were adjudicated long before. Below are my thoughts on immigration.

Crazy Conspiracy Theory:

I think Obama is actually conspiring with Lou Dobbs and Rush Limbaugh to expel all immigrants. Mexicans are leaving the US by hordes. Maybe they are being water tortured. Come to think of it, my neighbor's lawn sprinklers were on when their Mexican gardener was working.

Crazy Religious Theory:

God must have told the Employers to not hire immigrants. That is why it is March, and my H-1B clients are strangely silent. God must have hacked into the E verify system or something, because that system does not work. Why does God not want immigrants? Because these immigrants have to first sacrifice their first borns to the God in their home country. Or maybe that Scientology God has repossessed the souls of all immigrants.

Crazy Remedy:

Obama needs money. Immigrants want to come here. So Obama should sell lottery tickets for different positions. Kind of the same concept like the rational world's Diversity Lottery. Except here the immigrants also need to buy stocks in GM, AIG and Citi. And buy up a defaulted mortgage. This will be in lieu of their first born sacrifice.


Disclaimer: No I have not gone completely mad. This is my attempt to cheer myself from the doom and gloom since September 08. If you want my services, I can still perform rationally.

Contact Houston Immigration Lawyer, Annie Banerjee for more details

Economic Nationalism

Professor Jeffrey Garten from Yale Univerisity published an article in The Wall Street Journal (The Dangers of Turning Inwards, Feb-28-Mar 01) and coined the term Economic Nationalism. With rising unemployment, Governments are understandably becoming more and more protectionist, and anti immigration when it comes to employment. The doors to trade and immigration are being closed.

We are seeing this with increased denials of employment based visas, especially treaty visas like the TN. And the US is not the only culprit. UK, Japan, Germany, France, are all becoming more protectionist starting a deglobalization trend. However this could hurt commerce massively. We need to export goods to other countries. If wee cannot export our goods to the emerging markets, we will not be able to prosper. Additionally the article argues that if markets turn inwards, we will not be able to take care of the global issues.

The we might also have what happened in the 1930s. Global nationalism led to political nationalism and the rise of the Nazi party.

The article argues for a new global banking regulator, whereby the US and European banks will take similar action and be governed by similar laws.

Similar movement should be happening to immigration. Until we get out of this financial mess, we should let the market control immigration, instead of restrictionist Governmental policies. Then and only then will we get the best talent to get out of the recession.

Contact Houston Immigration Lawyer, Annie Banerjee for more details

To do List for H-1b employer

At the time of Filing:

1. SIGN AND DISPLAY LCA IN A PROMINENT PLACE FOR 10 DAYS. THE LCAs NEEDS TO BE DISPLAYED IN THE ACTUAL JOB SITE WHERE THE ALIEN IS WORKING. IF YOU ARE A CONSULTING COMPANY, PLEASE TAKE A SPECIAL NOTE OF THIS.

2. THEN PUT THE LCAs IN THE FILE, ALONG WITH THE WAGE DATA (ie THE PREVAILING WAGE DETERMINATION). PLEASE MAKE A NOTE OF WHEN AND WHERE THE LCAs HAVE BEEN POSTED IN THE FILE. THIS FILE CAN BE ACCESSED BY THE PUBLIC. ALSO PLEASE FURNISH A COPY OF THE LCA TO THE H-1B BENEFICIARY.



During the H-1Bs Employment

1. IF THE JOB LOCATION OF THE BENEFICIARY CHANGES, PLEASE FILE ANOTHER LCA AND DO THE SAME WITH THE CERTIFIED COPY AS ABOVE. YOU DO NOT NEED TO FORWARD THIS LCA TO THE USCIS.

2. IF YOU BENCH AN EMPLOYEE, YOU NEED TO PAY THAT EMPLOYEE UNLESS THE EMPLOYEE REQUESTS FOR A TIME OFF. IF AN EMPLOYEE REQUESTS FOR TIME OFF, PLEASE HAVE THE EMPLOYEE WRITE AN E MAIL OR A LETTER AND HAVE IT ON FILE

When you terminate an employee

1. PLEASE LET THE EMPLOYEE KNOW IN WRITING THAT YOU ARE TERMINATING HIM

2. PLEASE WRITE TO BOTH THE CIS AND DOL ABOUT THE TERMINATION

3. IF THE EMPLOYEE GOES BACK HOME, NEVER TO COME AGAIN, YOU WILL NEED TO PAY FOR THE EMPLOYEE'S TRAVEL BACK. (NOT THE FAMILY, JUST THE EMPLOYEE'S TRAVEL BACK).


Contact Houston Immigration Lawyer, Annie Banerjee for more details

H-1B visa Fraud

On Wednesday, February 11, Immigration and Customs Enforcement arrested 11 H-1B employers in 7 states on H-1B visa fraud. These employers had produced false documents to the CIS, and violated LCA rules of filing new LCA for different locations.

The arrested individuals were primarily Indians. I hope that the Obama Government officials, in the CIS and DOS will not automatically stereotype all Indian Employers as fraud and deny legitimate visas. Lets not forget that Indians primarily come into this country to work in the software industry and has so far done a remarkable job. As Thomas Friedman pointed out in a recent New York Times Op Ed piece, restrictionist policies served only to make the Great Depression, Great. Restricting the bright brains from coming in from India will only enrich India,and make the US poor.

Contact Houston Immigration Lawyer, Annie Banerjee for more details

When an H-1B looses his Job

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

EAD Card Delays

You filed your EAD card over 90 days ago. You still did not get the card. You cannot work. Your employer is real mad and in this economic climate is going to fire you. You call USCIS line, and the person says, "thank you for calling, we will generate a report." You get a letter in the mail saying that "we have generated a report. And then you wait....and wait.....

Although this story sounds very familiar to an Immigration Attorney, CIS claims that the delay beyond the 90 days happen to only 1.3 % of cases.

A new memo by Michael Aytes, Acting Director of USCIS, states that if your EAD card has been pending for more than 75 days, you can call the USCIS Service line at 1-800-375-5283, for a service call, and they will let the officer know of the call.

USCIS is also going to conduct sweeps to monitor and see that the EADs are issued within the 90 day period set by regulations. However that is not to say that on the 89th day you can get an RFE requesting more documents. RFEs stop the running of the clock.

Contact Houston Immigration Lawyer, Annie Banerjee for more details

Immigration in these trying times

Yes, we are in an economic recession, and maybe even in a depression. And in situations like this, it is always easy to blame the immigrant workers. After all its natural to feel resentment when American workers are out of jobs. Thus there are a number of bills in the Congress seeking to restrict H-1B (the visa for professionals) numbers.

But lets face the reality.

1. The Citizenship and Immigration fees for an H-1B visa is $2320/- per person. Out of that, The Government collects $1500/- per visa to "train" US people. A government doling out bail money needs to collect money somehow.

2. The Employer on the other hand would not pay such an exorbitant amount if they could find American workers to do the job.

3. The H-1B allows us to get the brightest and the best brains from other countries. If we want to get out of this recession, we would need this global brains. This is a complex global problem and needs to be addressed globally.

4. We now have a global economy and need global cooperation to solve this mess. We need global talent. If we follow the 1930s restrictionist policies, we will not be able to maintian our competitiveness in the 21st Century world.

5. Market forces rather than Government quotas work best in all situations. For example last year there were 165, 000 visa petitions filed on the first day for the 65, 000 H-1B visa numbers. Obviously, this year, that number will be far less. So we should do away with artificial quotas and let the market control employment.

Contact Houston Immigration Lawyer, Annie Banerjee for more details

Lincoln, the Lawyer

Not much is known about Lincoln as a lawyer. But in fact, he was a busy lawyer. He, with his partners handled at least 5173 cases. He was both a trial and appellate lawyer, though he was probably a better appellate lawyer than a trial lawyer.

In his notes for a Lecture on Law, Lincoln:

1. Discouraged litigation and looked for a peaceful solution to legal problem

2. Fee Retainers: encouraged lawyers to be reasonable and not charge abnormally. But also do charge a retainer, because then you will feel "like you are working for something"

3. Be diligent and faithful. He acknowledged that lawyers have a "vague" reputation of being dishonest.

Above all Lincoln believed in the Rule of Law, that the legal principles that bind us together to form an orderly society. However, the rule of law has to coexist with the rule of equality to create a "liberal democracy which was the realization of a morally right political order"

Now, may be another lawyer from Illinois will merge the rule of law with the rule of equality.

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Ivan Fong named CIS General Counsel

President Obama has named Mr. Ivan J Fong as the General Counsel of USCIS. Mr. Fong has the typical successful Asian resume----He has a Bachelor and Master of Science in Chemical Engineering from MIT, was a fullbright Scholar at Oxford and a JD from Stanford. He was recently the Chief Legal Officer for Cardinal Health. Before that he was the Deputy Associate Attorney General for the Justice Department, where he wrote a groundbreaking report on cyber crime.

He is indeed very bright, a computer geek, a nerd. But I dont see any experience with immigration law. Hopefully though he will do a good job.

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Our Patchwork Heritage

This is a very personal blog about what Barak's speech means to me. I came into this country in 1985, as a brown woman, one of those persons Barak referred to in his inauguration speech as the one who picked up their belongings and came to this country for "us", my children. As so, unlike the African American people who looked to this day from the perspective of the past, where they and their ancestors, survived intense discrimination, I look at it from the perspective of the future. I was lucky that my ancestors did not endure the segregation and slavery that will always cloud black heritage. But, as I said to my children, I voted in Texas for Barak, not because I think my vote will count, but because someday I can tell my grandchildren that I voted for the first black President of the United States. Sure I faced discrimination, so did my children. But we did not let that dampen us. We forged ahead and yes, we could. In today's America yes, we can, and so can everybody who is willing to work hard. And hopefully this message will spread not only in America but to the rest of the world as well. America, and particularly Texas-- in the 1980s and 1990s, you told us to not aim high, to stay below the radar of white America. We did not listen to you, and today You are better because of our defiance.

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Driver's License Fiasco in Texas

Texas, in its bid to heighten security, implemented new rules regarding producing documents when renewing or applying for a new driver's license since October 01, 2008. The Texas Department of Public Safety rationalized that since Driver's License is the primary form of ID, they would check out immigration documents before they issued driver's license. Except they created a list of immigration documents and did not realize that their workers were not hired to think.

The immigration documents should be valid for more than 6 months and should have a picture ID. In practice many immigration documents do NOT have picture ID, some do NOT have an expiry date. Of course, the DPS is not giving driver's license to any of those people. For instance, if someone's green card expired, they file I-90 and get a receipt notice. This document gives them valid status, and the right to work and travel. This document does not have a picture on it. Since their "green card" had "expired" the DPS won't renew their license.

The Texas Civil Rights Project had filed a class action lawsuit against DPS in Austin.

What blows my mind is that DPS has to look after our safety in the roads.The denied individuals will probably also not have insurance. Yet, they have to survive, and therefore drive. They HAVE the right to work, why should they not go to work? But if while they drive illegally, if anyone of them hits you or me, where are our remedies?

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Scam E Mail targeted towards Immigrants

There is a scam e-mail making the move which asks immigrants to complete a fraudulent “IRS Request for Recertification of Foreign Status” The form contains all information that could be used for identity theft. On their web site:

http://www.irs.gov/privacy/article/0,,id=179820,00.html?portlet=5

The IRS says:
The IRS does not initiate taxpayer communications through e-mail.

* The IRS does not request detailed personal information through e-mail.
* The IRS does not send e-mail requesting your PIN numbers, passwords or similar access information for credit cards, banks or other financial accounts.

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Deportees do not have Constitutional right to a Lawyer

The Bush Government has been trying to erode all constitutional rights for eight long years. In a final blow, Attorney General Mukasey, overruled long standing precedence and ruled that Aliens do not have a right to a lawyer. I can perfectly understand that the Government does not want to pay for counsel for people in deportation proceedings. But they do not have the right to reopen a case with a new attorney if his previous attorney screwed up.
Matter of Enrique Salas COMPEAN, 24 I&N Dec. 710 (A.G. 2009)
Defendants in deportation proceedings do not have the right for effective assistance of Counsel. This is outrageous. There are so many cases in which lawyers miss deadlines or does not assist effectively in procedural or substantive matters. Almost all of these defendants do not understand our legal process, and most don't even understand English. Add to it the fact that in the last two years, a lot of immigration judges were political appointees, who have no experience in Immigration, and may have hidden agendas. You can potentially have a KKK member, sitting as a judge somewhere, who would be perfectly happy to send a political asylum seeker back to his home country to be killed.

Contact Houston Immigration Lawyer, Annie Banerjee for more details