The fees for most CIS applications are astronomical. For instance the fee for N-400 to become a US Citizen is $675/- The fee for adjusting status to become a permanent resident is $1010/- Many people simply cannot afford that. However previously there were no forms and no guidelines to filing anything without fees with the CIS. If anyone filed a form and could not afford a fee, they had to write a letter. But the mailroom personnel at CIS either does not read or perhaps cannot read. So the form used to be returned asking us to send the check. You could go back and forth and in the mean time loose time or even status.
Even more egregious were fees paid due to CIS' mistake. For instance if the CIS in clear cut error denied your case, you had to file a motion to reopen for $585/- We even had a case once where the CIS collected a fee for a I-765 (EAD) filing for $340/- and lost the file. When we traced and send them the check, the reply was that my bank should ask for the money back. My bank, Bank of America, did not know how to. So we simply paid again and refiled.
Now the CIS is proposing a form: I-912 which will establish clear guidelines for fee waivers. Hopefully the form in its approved version will have no fee requirements for CIS' mistakes along with applications for applicants below the poverty level.
Don't just start spending the money that you were saving for the CIS fees yet though. Sometimes these forms take years to come to fruition. As for me, I will believe it when I ultimately see it.
For more information contact Houston Immigration Lawyer or Houston Immigration Attorney, Annie Banerjee
Tuesday, July 20, 2010
Thursday, July 15, 2010
How to How to show control under the Jan 08 memo
There are only 65,000 visas given for regular H-1Bs and 20,000 for holders of US Master's Degree. As of July 09, only 24,800 regular petitions were filed and 10,600 US Master's petition were filed. The reason for this slow filing is two fold.
Heading into a deeper recession, the economy is definitely a factor. Unlike what most people think, Companies would rather hire US workers, and not pay the $2320/- filing fees plus attorney's fees.
However there are some professions which have a shortage in the US. That is true of computer professionals. But the computer professional market has been bruised by a poorly conceived and legally impermissible memo that CIS promulgated on January 08, 2010. The CIS is their infinite wisdom deemed that professionals need to be "controlled" directly by the petitioning company.
The IT business typically have contracts that go through tiers--- from the petitioning company to the end user. The CIS thinks that this creates "job shop" a four letter word to them.
The Jan 08 memo is startling in how unconstitutional it is---- how it totally disregards the rule of law. The class action lawsuit against it will hopefully see the end of the memo. Meanwhile software companies are outsourcing their business elsewhere.
However if there is a contract using an intermediary, control can be shown if another employee of the same H-1B employer works for the end user and actually supervises the H-1B beneficiary.
For instance if Company A, the H-1B employer has a contract with Company F and Company F has a contract with the end user, Company Bigshot. If Company A has employee X who works for Big Shot too, who supervises employee Y, who is the beneficiary, then control can be established under the January 08 memo. Of course all companies have to provide a ton of document to prove the case.
For more information contact Houston Immigration Lawyer or Houston Immigration Attorney, Annie Banerjee
Heading into a deeper recession, the economy is definitely a factor. Unlike what most people think, Companies would rather hire US workers, and not pay the $2320/- filing fees plus attorney's fees.
However there are some professions which have a shortage in the US. That is true of computer professionals. But the computer professional market has been bruised by a poorly conceived and legally impermissible memo that CIS promulgated on January 08, 2010. The CIS is their infinite wisdom deemed that professionals need to be "controlled" directly by the petitioning company.
The IT business typically have contracts that go through tiers--- from the petitioning company to the end user. The CIS thinks that this creates "job shop" a four letter word to them.
The Jan 08 memo is startling in how unconstitutional it is---- how it totally disregards the rule of law. The class action lawsuit against it will hopefully see the end of the memo. Meanwhile software companies are outsourcing their business elsewhere.
However if there is a contract using an intermediary, control can be shown if another employee of the same H-1B employer works for the end user and actually supervises the H-1B beneficiary.
For instance if Company A, the H-1B employer has a contract with Company F and Company F has a contract with the end user, Company Bigshot. If Company A has employee X who works for Big Shot too, who supervises employee Y, who is the beneficiary, then control can be established under the January 08 memo. Of course all companies have to provide a ton of document to prove the case.
For more information contact Houston Immigration Lawyer or Houston Immigration Attorney, Annie Banerjee
Wednesday, July 7, 2010
Arizona and the Justice Department on Immigration
The justice Department's suit to block the restrictive law in Arizona is heralded by everyone as an "immigration issue." Both Wall Street Journal and New York Times have huge headings under "Immigration Law." But the question is not about immigration law. It is about the fundamental human right to not be judged by the color of our skin.
The proponents of the bill, like Arizona state Sen. Russell Pearce say that the bill "prohibits racial profiling." But I wonder if every individual is stopped and asked for their passports. The will cripple business in the State. Will everyone, ie white, black, brown, yellow, and whatever other color or look need to take their passports, birth certificates, etc to Arizona?
I naturalized into this country and is in the highest tax bracket. I work and pay taxes. Yet I am brown and have an accent. As a practitioner of immigration law, I know say for instance white Canadian who are here, in the US, working illegally, but are white and except for a slight "oot and aboot" has no other accent. Who will the Arizona police "catch"?
The lawsuit is also about separate state and federal rights. The Conservative Supreme Court will champion State rights, but it will remain to be seen whether they champion Separation of Powers. My guess is that their judgment will be clouded by the more emotional issue of immigration.
For more information contact Houston Immigration Lawyer or Houston Immigration Attorney, Annie Banerjee
The proponents of the bill, like Arizona state Sen. Russell Pearce say that the bill "prohibits racial profiling." But I wonder if every individual is stopped and asked for their passports. The will cripple business in the State. Will everyone, ie white, black, brown, yellow, and whatever other color or look need to take their passports, birth certificates, etc to Arizona?
I naturalized into this country and is in the highest tax bracket. I work and pay taxes. Yet I am brown and have an accent. As a practitioner of immigration law, I know say for instance white Canadian who are here, in the US, working illegally, but are white and except for a slight "oot and aboot" has no other accent. Who will the Arizona police "catch"?
The lawsuit is also about separate state and federal rights. The Conservative Supreme Court will champion State rights, but it will remain to be seen whether they champion Separation of Powers. My guess is that their judgment will be clouded by the more emotional issue of immigration.
For more information contact Houston Immigration Lawyer or Houston Immigration Attorney, Annie Banerjee
Monday, June 28, 2010
Second Amendment
In McDonald v. Chicago, The Supreme Court reasserted today that individuals have the right to retain guns at both the State and Local levels. The Majority consisting of conservative justices---- Alito, Roberts, Scalia, Thomas, and Kennedy based their decision on the history of the second Amendment, where militias were given the right to protect their farmlands. At that time we had no organized police force, we had no justice system in place.
Who are the militias of today? The KKK-- the uneducated people, who generally do not work, collect welfare checks, and blame all their owes on the colored people and now the "illegal immigrants."
If the Supreme Court grants the right to local levels to enact gun controls, one can only speculate for instance what kind of gun control laws Maricopa COunty in Arizona will enact.
Due Process protects every "individual"; it does not say "citizens". And just like every individual has the right to protect themselves with weapons, every individuals also have the more fundamental right to live.
Although the justices said that the Second Amendment allows for a reasonable restriction of guns, their rationale based on history of the second Amendment gives the militias a carte blanche right to bear arms. This can indeed set a dangerous precedence.
For more information contact Houston Immigration Lawyer or Houston Immigration Attorney, Annie Banerjee
Who are the militias of today? The KKK-- the uneducated people, who generally do not work, collect welfare checks, and blame all their owes on the colored people and now the "illegal immigrants."
If the Supreme Court grants the right to local levels to enact gun controls, one can only speculate for instance what kind of gun control laws Maricopa COunty in Arizona will enact.
Due Process protects every "individual"; it does not say "citizens". And just like every individual has the right to protect themselves with weapons, every individuals also have the more fundamental right to live.
Although the justices said that the Second Amendment allows for a reasonable restriction of guns, their rationale based on history of the second Amendment gives the militias a carte blanche right to bear arms. This can indeed set a dangerous precedence.
For more information contact Houston Immigration Lawyer or Houston Immigration Attorney, Annie Banerjee
Thursday, June 24, 2010
Speedy Travel at the Airport
Although I am not going anywhere, as summer rolls along, visions of distant lands dance in my head. However, that vision is marred by long lines at the airports--- getting your luggage checked, getting into a plane with carry on bags and no overhead place, and finally the immigration and customs line ups.
This year, for a fee, the Government and even some airlines are helping to ease that pain.
The US Government, (and some foreign Government as well like Holland) has introduced the Global Entry Program. US Citizens over the age of 14 can pay a fee of $100/- (valid for 5 years) and enroll in the program. They have to enter their data in the following web site:
https://goes-app.cbp.dhs.gov/
After the completion of the process, there will be a one time only CBP interview.
However, once its complete, you do not need to stand in any immigration line. There are kiosks in most major airports. The traveler has to scan in their passport at airport kisoks, and zoom down to luggage claim.
Similarly, in Houston IAH, international travelers who are US Citizens and has no checked luggage, can go through the lines used by pilots and air hostesses for faster processing.
This process can be used by anyone, but because of the lengthy process to get into the program, its probably feasible for frequent business travelers only. The travelers also get expedited check in in kiosks of other participating countries as well. As more countries sign on, the price may come down. Or this may simply become a requirement for foreign travel in the future. It will save money on personnel for countries participating in this program.
Additionally, some airlines are also letting passengers cut in line for boarding the plane or for checking in for a fee. Both American and South West is going to be offering this perk for a fee ranging from $10/- to $50/- per ticket.
This will be the future of travel, in a world increasingly short for time. But then, in this world, will there even be time for vacations?
For more information contact Houston Immigration Lawyer or Houston Immigration Attorney, Annie Banerjee
This year, for a fee, the Government and even some airlines are helping to ease that pain.
The US Government, (and some foreign Government as well like Holland) has introduced the Global Entry Program. US Citizens over the age of 14 can pay a fee of $100/- (valid for 5 years) and enroll in the program. They have to enter their data in the following web site:
https://goes-app.cbp.dhs.gov/
After the completion of the process, there will be a one time only CBP interview.
However, once its complete, you do not need to stand in any immigration line. There are kiosks in most major airports. The traveler has to scan in their passport at airport kisoks, and zoom down to luggage claim.
Similarly, in Houston IAH, international travelers who are US Citizens and has no checked luggage, can go through the lines used by pilots and air hostesses for faster processing.
This process can be used by anyone, but because of the lengthy process to get into the program, its probably feasible for frequent business travelers only. The travelers also get expedited check in in kiosks of other participating countries as well. As more countries sign on, the price may come down. Or this may simply become a requirement for foreign travel in the future. It will save money on personnel for countries participating in this program.
Additionally, some airlines are also letting passengers cut in line for boarding the plane or for checking in for a fee. Both American and South West is going to be offering this perk for a fee ranging from $10/- to $50/- per ticket.
This will be the future of travel, in a world increasingly short for time. But then, in this world, will there even be time for vacations?
For more information contact Houston Immigration Lawyer or Houston Immigration Attorney, Annie Banerjee
Tuesday, June 15, 2010
Texas Immigration
If you were wondering why the Tripple G rated (Guns, God and Gays) Southern States, still under the shadows of the Jim Crow laws have not passed on their hatred for immigrants in a restrictive bill like Arizona, wonder no further. The Texas GOP convention this past week end in Dallas adopted an anti immigration stance that would bar illegal immigrants from "intentionally or knowingly" residing in Texas. Of course the GOP did not clarify if this knowledge applies to residing in Texas or being not legal. But then, we need to one up Arizona. So the GOP advocated for an "open carry" law which would allow residents of carrying fire arms in the open, without a concealed weapons permit. Of course that would in Texas terms mean shoot on sight, especially at brown people.
Take into account that we recently changed our history textbooks to reflect the right wing ideology and we are the perfect breeding ground for future KKK party members. And how many years ago was it that Texas actually belonged to Mexico? Maybe we should, as Governor Rick Perry had once suggested, secede, form our own ultra right wing country and gradually fade into oblivion.
For more information contact Houston Immigration Lawyer or Houston Immigration Attorney, Annie Banerjee
Take into account that we recently changed our history textbooks to reflect the right wing ideology and we are the perfect breeding ground for future KKK party members. And how many years ago was it that Texas actually belonged to Mexico? Maybe we should, as Governor Rick Perry had once suggested, secede, form our own ultra right wing country and gradually fade into oblivion.
For more information contact Houston Immigration Lawyer or Houston Immigration Attorney, Annie Banerjee
Friday, June 11, 2010
Prima Facia Evidence for Outstanding Researcher
The Administrative Appeals Unit (AAO) recently held that if a case does not establish the factual basis of a prima facia case, then it will be denied without a request for additional information.
The case involved an Outstanding Researcher.(OR) The AAO, quoting a Ninth Circuit case, Kazarian v. USCIS 2010 WL 725317, said that there are two prongs to establish whether the case satisfies regulatory requirements.
The first is whether the case has the requisite evidence. In an OR case, the petitioner must have the two out of six criteria set forth in the regulation.
The second is whether the evidence meets final merit. This is where the case gets interesting. Granted initially it was a poorly prepared case. But the AAO suggested a number of things, with no precedence, that seemed absurd. Here is a short list:
1. The beneficiary was on Peer review Committee of journals. The AAO suggested that most scientists do this. My understanding is that only senior scientists are given this privilege.
2. The AAO suggested that most researchers gets grants. No, labs and senior scientists gets grants, junior members don't. As a matter of fact, not so long ago there was an article in the Wall Street Journal about how it was the junior or novice scientists that came up with novel ideas that changed the world. Einstein, Newton etc were in their prime when they discovered their seminal research. Yet junior scientists are NOT given grants.
3. The AAO states that the petition requires an offer letter from the sponsor. In an OR case, the sponsor is the hiring institution. They have to sign the I-140 and the petitioning document. Why would they do that, if they did not intend to offer the beneficiary the job?
4. The Petitioner must provide documentary evidence of the employer's ability to pay. If the petitioner states (under oath) in the I-140 their gross and net; I think they meet their prima facia obligation. If Texas Service Center (TSC)(where the case got denied) does not think this is enough to establish the fact, then an RFE would be appropriate.
I know there is a huge backlash against any type of employment based immigration, and I know there is a high unemployment rate. But to stay competitive, we MUST do research. And most researchers in this country come from foreign lands. If we dont keep abreast of science and technology, most high tech jobs will be outsourced. India will do the research, have the patents. And we will only pay second fiddle.
And if the TSC adjudicators do not believe me, they need to get into their cars, drive less than 3 miles down Stemmons Freeway to Harry Hines Blvd. There is UTSW, one of the premier medical school and research institution in the US. They have three Nobel laureates and countless foreign researchers. And think, if we dont change our policy, all the Nobel prizes will go to other countries.
For more information contact Houston Immigration Lawyer or Houston Immigration Attorney, Annie Banerjee
The case involved an Outstanding Researcher.(OR) The AAO, quoting a Ninth Circuit case, Kazarian v. USCIS 2010 WL 725317, said that there are two prongs to establish whether the case satisfies regulatory requirements.
The first is whether the case has the requisite evidence. In an OR case, the petitioner must have the two out of six criteria set forth in the regulation.
The second is whether the evidence meets final merit. This is where the case gets interesting. Granted initially it was a poorly prepared case. But the AAO suggested a number of things, with no precedence, that seemed absurd. Here is a short list:
1. The beneficiary was on Peer review Committee of journals. The AAO suggested that most scientists do this. My understanding is that only senior scientists are given this privilege.
2. The AAO suggested that most researchers gets grants. No, labs and senior scientists gets grants, junior members don't. As a matter of fact, not so long ago there was an article in the Wall Street Journal about how it was the junior or novice scientists that came up with novel ideas that changed the world. Einstein, Newton etc were in their prime when they discovered their seminal research. Yet junior scientists are NOT given grants.
3. The AAO states that the petition requires an offer letter from the sponsor. In an OR case, the sponsor is the hiring institution. They have to sign the I-140 and the petitioning document. Why would they do that, if they did not intend to offer the beneficiary the job?
4. The Petitioner must provide documentary evidence of the employer's ability to pay. If the petitioner states (under oath) in the I-140 their gross and net; I think they meet their prima facia obligation. If Texas Service Center (TSC)(where the case got denied) does not think this is enough to establish the fact, then an RFE would be appropriate.
I know there is a huge backlash against any type of employment based immigration, and I know there is a high unemployment rate. But to stay competitive, we MUST do research. And most researchers in this country come from foreign lands. If we dont keep abreast of science and technology, most high tech jobs will be outsourced. India will do the research, have the patents. And we will only pay second fiddle.
And if the TSC adjudicators do not believe me, they need to get into their cars, drive less than 3 miles down Stemmons Freeway to Harry Hines Blvd. There is UTSW, one of the premier medical school and research institution in the US. They have three Nobel laureates and countless foreign researchers. And think, if we dont change our policy, all the Nobel prizes will go to other countries.
For more information contact Houston Immigration Lawyer or Houston Immigration Attorney, Annie Banerjee
Wednesday, June 2, 2010
Griping about DOL's Prevailing Wage system
Why do Governments have a wonderful capacity of taking something completely good and turning it into a nightmare? Does the very definition of democracy mean "you cannot get anything done quickly when dealing with the Government?"
The DOL launched its new Prevailing Wage System on January 01, 2010. Previous to that the State Workforce Agencies (SWA) determined the Prevailing Wage for their state. A Prevailing Wage Determination (PWD) is required to determine what the wage rate should be for a job. Previously the SWAs were widely different and caused a lot of problems. So DOL wanted to centralize the process. Commendable indeed, but they introduced this whole thing with no alpha or beta testing whatsoever.
The DOL created a form, which has to be filled in by hand or typing and then snail mailed to the DOL. DOL then types it into their system. A form that we could submit electronically would have been so much easier and traceable, (like PERM), but DOL wont have that. We send ours by certified mail, and then we don't hear from one or two of them at all. They get lost in the mail. We have certified receipts to prove they reached DOL's doors, but no way to follow up.
The officers who determines the are untrained. They sometimes ask stupid questions. Some get returned if we use the major as "general" even if this is for a third preference skilled worker job. The officers do NOT have basic training. I can understand some confusion initially, but we have crossed the six month mark. And the determinations vary so widely from one adjudicator to the other, that they outdo the variance between the different SWAs. So much for a centralized system.
The PWD takes forever to get done and come back, and then it is sometimes valid for barely two months. After that the employer has to advertise for the job, wait a month and then file. And the Prevailing Wage has to be valid at the time of filing. Since advertisements are valid for 6 months only, and there is no knowing when we will get the prevailing wage from DOL, it is not advisable for employers to start advertising without the prevailing wage determination.
There are only so many combination that the PWD form can have. The simple solution would be to mechanize the whole system and have a computer determine the prevailing wage. It would make far less mistakes than humans and would be a lot cheaper. But then, that is not how the system works.
For more information contact Houston Immigration Lawyer or Houston Immigration Attorney, Annie Banerjee
The DOL launched its new Prevailing Wage System on January 01, 2010. Previous to that the State Workforce Agencies (SWA) determined the Prevailing Wage for their state. A Prevailing Wage Determination (PWD) is required to determine what the wage rate should be for a job. Previously the SWAs were widely different and caused a lot of problems. So DOL wanted to centralize the process. Commendable indeed, but they introduced this whole thing with no alpha or beta testing whatsoever.
The DOL created a form, which has to be filled in by hand or typing and then snail mailed to the DOL. DOL then types it into their system. A form that we could submit electronically would have been so much easier and traceable, (like PERM), but DOL wont have that. We send ours by certified mail, and then we don't hear from one or two of them at all. They get lost in the mail. We have certified receipts to prove they reached DOL's doors, but no way to follow up.
The officers who determines the are untrained. They sometimes ask stupid questions. Some get returned if we use the major as "general" even if this is for a third preference skilled worker job. The officers do NOT have basic training. I can understand some confusion initially, but we have crossed the six month mark. And the determinations vary so widely from one adjudicator to the other, that they outdo the variance between the different SWAs. So much for a centralized system.
The PWD takes forever to get done and come back, and then it is sometimes valid for barely two months. After that the employer has to advertise for the job, wait a month and then file. And the Prevailing Wage has to be valid at the time of filing. Since advertisements are valid for 6 months only, and there is no knowing when we will get the prevailing wage from DOL, it is not advisable for employers to start advertising without the prevailing wage determination.
There are only so many combination that the PWD form can have. The simple solution would be to mechanize the whole system and have a computer determine the prevailing wage. It would make far less mistakes than humans and would be a lot cheaper. But then, that is not how the system works.
For more information contact Houston Immigration Lawyer or Houston Immigration Attorney, Annie Banerjee
Friday, May 28, 2010
USCIS Lock-Box
In their strive to automatize, the USCIS has introduced centralized lock box system. This system mirrors the system used by private companies, like utility companies who collect money. The personnel uses machines to collect fees, look at the petition to determine prima facia sufficiency, and prepare the case for adjudicators. However they also scan the documents for retrieval. They have been doing so for several years now.
They scan all forms and supporting documents. They also take out of the package any tabs, etc that we insert to arrange documents. If the file is too large, they only scan (completely arbitrarily) the first 50 pages.
The CIS wants to have I-140s into the lockbox systems. I-140s can be very thick petitions, especially for Outstanding categories, NIW, International Managers, etc. If the lock box system takes out tabs, etc, in the very least it will make life for the adjudicators very difficult.
In a recent meeting with AILA members at the Texas Service Center Mr. David Roark, the Director of the TSC objected to the removal of the tabs.
However, CIS, being the huge government bureaucracy that it is, will probably not listen to everyone in formulating policies. So even though they make be able to generate receipt notices faster, we will have slower adjudications, and maybe even denials if papers go missing from original petitions.
Contact Houston Immigration Lawyer, Annie Banerjee for more details
They scan all forms and supporting documents. They also take out of the package any tabs, etc that we insert to arrange documents. If the file is too large, they only scan (completely arbitrarily) the first 50 pages.
The CIS wants to have I-140s into the lockbox systems. I-140s can be very thick petitions, especially for Outstanding categories, NIW, International Managers, etc. If the lock box system takes out tabs, etc, in the very least it will make life for the adjudicators very difficult.
In a recent meeting with AILA members at the Texas Service Center Mr. David Roark, the Director of the TSC objected to the removal of the tabs.
However, CIS, being the huge government bureaucracy that it is, will probably not listen to everyone in formulating policies. So even though they make be able to generate receipt notices faster, we will have slower adjudications, and maybe even denials if papers go missing from original petitions.
Contact Houston Immigration Lawyer, Annie Banerjee for more details
Friday, May 7, 2010
Happy Mother's Day
I am a eight year old girl in Mexico. My mother is working in your country illegally. My father was never in the picture. My mother had 2 other children. She had no education, she could not find a job. She had to either watch her children die from hunger, or come to the US illegally and work.
Unlike you, she works any and all jobs. She works very hard. There are no benefits, no WIC, no food stamp, no safety net. And then she send money home.
Yes, she is not following US laws, but there is a higher law, that of evolution. All species have built in survival instincts built into them, an instinct that propels a mother to do anything to save her children. And that natural law does not make earning a living a crime. When we as a species decided to live in society, we bound ourselves into law, the law of live and let live.
I know that most people who criticize my mother in your country do not believe in evolutionary or natural law. But you do believe in God. Does your religion allow you to bring a child into this world, and then not care of that child? "Refrigerator Mother" is only a coinage of the Western World. I don't know what it means. I only know that my mother is doing whats best for me. And if you have people to do the work that my mother is doing, why do you hire my mother?
Mom, I know that on this Mother's day, you will do your work, and then come home in fear, and go to sleep in your shanty apartment. I know you will not get a kiss from me, or even a gift. But I love you. Happy Mother's Day.
For more information contact Houston Immigration Lawyer or Houston Immigration Attorney, Annie Banerjee
Unlike you, she works any and all jobs. She works very hard. There are no benefits, no WIC, no food stamp, no safety net. And then she send money home.
Yes, she is not following US laws, but there is a higher law, that of evolution. All species have built in survival instincts built into them, an instinct that propels a mother to do anything to save her children. And that natural law does not make earning a living a crime. When we as a species decided to live in society, we bound ourselves into law, the law of live and let live.
I know that most people who criticize my mother in your country do not believe in evolutionary or natural law. But you do believe in God. Does your religion allow you to bring a child into this world, and then not care of that child? "Refrigerator Mother" is only a coinage of the Western World. I don't know what it means. I only know that my mother is doing whats best for me. And if you have people to do the work that my mother is doing, why do you hire my mother?
Mom, I know that on this Mother's day, you will do your work, and then come home in fear, and go to sleep in your shanty apartment. I know you will not get a kiss from me, or even a gift. But I love you. Happy Mother's Day.
For more information contact Houston Immigration Lawyer or Houston Immigration Attorney, Annie Banerjee
Sunday, April 25, 2010
Bye Bye Sedona
In July of 2010, I decided to take a road trip to the red rocks of Sedona, Arizona. A few days of rest, relaxation and hiking from the daily grind of my law practice in Houston, Texas seemed inviting. So I packed up my 04 Lexus and headed West.
But long before the red rocks of Sedona loomed in the horizon, I was puzzled by a huge sign saying, "Heil Brewer--- Death to Brown people." Since I'm brown, I was kind of taken aback, and decided to watch my speed and obey all traffic laws. After all, this is still America, where I am a naturalized citizen, and I would be Ok, if I did not break any rules. Wrong. Within 15 minutes I heard the sirens behind me asking me to stop. I look behind me as I stopped, and there is a police car with pictures of Ms. Brewer and Ms Palin on the dashboard. Once the officer walks up to me, I said, "but officer I was well within the speed limit."
Officer: Where did you cross the border?
Me: Texas, I am a Texas resident
Officer: Laredo?
Me: No Officer, I am from Houston
Officer: Uh huh, How do you prove it?
Me: See, my driver's license gives my Houston address. Same zip code as George H Bush
Officer: So you stole the car with the license?
Me: What.... I did not steal the car. If I was going to steal the car, why would I steal a Toyota?
Officer, You are under arrest
Me: For what?
Officer: For being an illegal and stealing a car....
Me: Are you not going to read me my miranda rights.... I want to see a lawyer, I want due process
Officer: Those are federal laws, they don't work here in Arizona
Me: But I thought states cannot curb federal laws
Officer: You want to stay in jail forever?
Me: Sorry, Sorry Officer.
The next day I see a judge who says the fine is $20,000/- If I pay it I can go back to Houston.
I told the judge that I hadn't committed any crime whatsoever.
The Judge told me, Since the Immigration bill was passed, Arizona is loosing money. That is our rate. You either pay this and leave the State, or stay jailed forever.
I wake up to the sound of my alarm clock. This was thankfully a nightmare. But it was oh so real. Bye Bye Sedona, there is a thousand places outside Arizona who could use my tourist dollars.
For more information contact Houston Immigration Lawyer or Houston Immigration Attorney, Annie Banerjee
But long before the red rocks of Sedona loomed in the horizon, I was puzzled by a huge sign saying, "Heil Brewer--- Death to Brown people." Since I'm brown, I was kind of taken aback, and decided to watch my speed and obey all traffic laws. After all, this is still America, where I am a naturalized citizen, and I would be Ok, if I did not break any rules. Wrong. Within 15 minutes I heard the sirens behind me asking me to stop. I look behind me as I stopped, and there is a police car with pictures of Ms. Brewer and Ms Palin on the dashboard. Once the officer walks up to me, I said, "but officer I was well within the speed limit."
Officer: Where did you cross the border?
Me: Texas, I am a Texas resident
Officer: Laredo?
Me: No Officer, I am from Houston
Officer: Uh huh, How do you prove it?
Me: See, my driver's license gives my Houston address. Same zip code as George H Bush
Officer: So you stole the car with the license?
Me: What.... I did not steal the car. If I was going to steal the car, why would I steal a Toyota?
Officer, You are under arrest
Me: For what?
Officer: For being an illegal and stealing a car....
Me: Are you not going to read me my miranda rights.... I want to see a lawyer, I want due process
Officer: Those are federal laws, they don't work here in Arizona
Me: But I thought states cannot curb federal laws
Officer: You want to stay in jail forever?
Me: Sorry, Sorry Officer.
The next day I see a judge who says the fine is $20,000/- If I pay it I can go back to Houston.
I told the judge that I hadn't committed any crime whatsoever.
The Judge told me, Since the Immigration bill was passed, Arizona is loosing money. That is our rate. You either pay this and leave the State, or stay jailed forever.
I wake up to the sound of my alarm clock. This was thankfully a nightmare. But it was oh so real. Bye Bye Sedona, there is a thousand places outside Arizona who could use my tourist dollars.
For more information contact Houston Immigration Lawyer or Houston Immigration Attorney, Annie Banerjee
Friday, April 23, 2010
If you leave the US without surrendering the I-94
When you entered the US, you had to fill out either a white form if you entered with a visa, or a green form if you did not need a visa. Upon leaving the US, you are supposed to surrender that I-94 form to the US government. But sometimes that does not happen. For whatever reason, the airlines or whoever it is forgets to take the form. So now the US thinks you are in the country illegally, past the date stamped in the I-94, and you will have problems.
If this happens, please mail the I-94 back (certified mail) other documents to prove that you are out of the country, to:
DHS-CBP-SBU
1084 South Laurel Road
London, KY, 40744
USA
Documents to prove that you are out of the country can include, but is not limited to the following documents:
1. Original boarding passes you used to depart another country, such as Canada, if you flew home from there;
2. Photocopies of entry or departure stamps in your passport indicating entry to another country
3. after you departed the United States (you should copy all passport pages that are not completely blank, and include the biographical page containing your photograph); and
Photocopies of other supporting evidence, such as:
4. Dated pay slips or vouchers from your employer to indicate you worked in another country after you departed the United States,
5. Dated bank records showing transactions to indicate you were in another country after you left the United States,
5. School records showing attendance at a school outside the United States to indicate you were in another country after you left the United States, and
6. Dated credit card receipts, showing your name, but, the credit card number deleted, for purchases made after you left the United States to indicate you were in another country after leaving the United States.
For more information contact Houston Immigration Lawyer or Houston Immigration Attorney, Annie Banerjee
If this happens, please mail the I-94 back (certified mail) other documents to prove that you are out of the country, to:
DHS-CBP-SBU
1084 South Laurel Road
London, KY, 40744
USA
Documents to prove that you are out of the country can include, but is not limited to the following documents:
1. Original boarding passes you used to depart another country, such as Canada, if you flew home from there;
2. Photocopies of entry or departure stamps in your passport indicating entry to another country
3. after you departed the United States (you should copy all passport pages that are not completely blank, and include the biographical page containing your photograph); and
Photocopies of other supporting evidence, such as:
4. Dated pay slips or vouchers from your employer to indicate you worked in another country after you departed the United States,
5. Dated bank records showing transactions to indicate you were in another country after you left the United States,
5. School records showing attendance at a school outside the United States to indicate you were in another country after you left the United States, and
6. Dated credit card receipts, showing your name, but, the credit card number deleted, for purchases made after you left the United States to indicate you were in another country after leaving the United States.
For more information contact Houston Immigration Lawyer or Houston Immigration Attorney, Annie Banerjee
Tuesday, April 13, 2010
Akhil Amar for Supreme Court Justice
I would like to see Akhil Amar as the next Supreme Court Justice. And that is not only because he knows more about Constitutional Law than most Supreme Court Justices. But as a group, Asians don't have much clout in Politics. We have small numbers. Yet, we score the highest SAT scores, we earn the highest average salaries of any other group. Yet we have negligible representation in Government.
Our children get into the best colleges through merit alone, we don't have affirmative action or legacy. And very often than not, schools discriminate against us. Princeton was sued recently by Asians because they adversely discriminated against Asians. So all other groups can get in with much lower grades than we do. That is why schools have created this "holistic" approach, so that they can tell Asians that education is not enough.
The legal profession takes this discrimination even one step further. Not many Asians are partners of big law firm. So even though Neal Katyal convinced the Bush Supreme Court to rule against Guantanamo, he was just a professor at Georgetown. Mr. Amar is a professor at Yale. But Professorships don't pay. Neither does in house counsel. So most Asians become doctors.
In the process we are loosing some brilliant minds to Law. We need to uphold the image of Asians as effective lawyers. And after all they have the brains and education to prove it.
For more information contact Houston Immigration Lawyer or Houston Immigration Attorney, Annie Banerjee
Our children get into the best colleges through merit alone, we don't have affirmative action or legacy. And very often than not, schools discriminate against us. Princeton was sued recently by Asians because they adversely discriminated against Asians. So all other groups can get in with much lower grades than we do. That is why schools have created this "holistic" approach, so that they can tell Asians that education is not enough.
The legal profession takes this discrimination even one step further. Not many Asians are partners of big law firm. So even though Neal Katyal convinced the Bush Supreme Court to rule against Guantanamo, he was just a professor at Georgetown. Mr. Amar is a professor at Yale. But Professorships don't pay. Neither does in house counsel. So most Asians become doctors.
In the process we are loosing some brilliant minds to Law. We need to uphold the image of Asians as effective lawyers. And after all they have the brains and education to prove it.
For more information contact Houston Immigration Lawyer or Houston Immigration Attorney, Annie Banerjee
Friday, April 9, 2010
Education and Work Experience for I-140
Immigration is the only place in law where quotas are still permissible, and everybody knows that especially for India and China the quotas for employment based visas disappear very quickly. These are huge countries with many professional people and their quotas get used up resulting in lengthy wait times, especially for third preference visas. Therefore everyone wants to get into the Second Preference.
There are some caveats though:
1. The experience has to be AFTER you get the degree and BEFORE you join the Petitioning Company. The experience in the same job at the petitioning company does not work because the rationale is that if the employer can train the beneficiary, they can train an American graduate as well.
2. To get to the second preference with a Master's Degree, if that degree is not from the US, there is always a problem. If the underlying Bachelors Degree and Master's Degree does not match, then it is not usually counted as a Bachelors Degree.
3. Evaluations are advisory only, and USCIS does not have to follow them. Similarly, work experience cannot be used to substitute years of Degree as you can in H-1B.
4. H-1B standard is much less stricter in terms of Degree equivalency than I-140.
Below are some recommendation by Nebraska Service Center for Degree equivalency:
1. US master’s degree – as long as it is in the field required no additional documents would be required no additional documents would be required
2. 4 yr bachelor’s degree + 2 yr master’s degree (India) – with degrees in the same or related fields this will generally be considered the equivalent to a U.S. master’s degree with no additional documents required
3. 3 yr bachelor’s degree + 3 yr master’s degree (India) – with degrees in the same or related fields this will generally be equivalent to U.S. master’s degree with no additional documents required
4. 3 yr bachelor’s degree + 1 yr postgraduate diploma + 2 yr master’s degree (India) with degrees in the same or similar field this would generally be considered the equivalent of a bachelor’s degree plus one additional year of education so the beneficiary would also need to have 5 yrs progressive experience. If the postgraduate diploma is determined to be progressive postgraduate education that is a continuation of the 3 yr bachelor’s degree it is possible that this would be considered the equivalent to a Master’s degree and there would be no need to establish 5 yrs progressive experience.
5. 3 yr bachelor’s degree + 2 yr master’s degree (India) – generally this would be the equivalent of a bachelor’s degree + 1 year and would require 5 yrs progressive experience to qualify under the 2nd preference category.
6. 3 yr bachelor’s degree + 2 yr master’s degree (India) + 5 yrs progressive, post master’s degree experience – Generally the educational degrees would be determined to be the equivalent of a US. bachelor’s + 1 year and the beneficiary would meet the statutory requirement
7. 3 yr bachelor’s degree + 2 yr master’s degree + 1 yr postgraduate diploma (India) – generally this would be the equivalent of a bachelor’s degree + 1 year and would require 5 yrs progressive experience to qualify under the 2nd preference category. If the postgraduate education that is a continuation of the 3 yr bachelor’s degree or the 2 yr master’s degree it is possible that this would be considered the equivalent to a US Master’s degree and there would be no need to establish 5 yrs progressive experience.
For more information contact Houston Immigration Lawyer or Houston Immigration Attorney, Annie Banerjee
There are some caveats though:
1. The experience has to be AFTER you get the degree and BEFORE you join the Petitioning Company. The experience in the same job at the petitioning company does not work because the rationale is that if the employer can train the beneficiary, they can train an American graduate as well.
2. To get to the second preference with a Master's Degree, if that degree is not from the US, there is always a problem. If the underlying Bachelors Degree and Master's Degree does not match, then it is not usually counted as a Bachelors Degree.
3. Evaluations are advisory only, and USCIS does not have to follow them. Similarly, work experience cannot be used to substitute years of Degree as you can in H-1B.
4. H-1B standard is much less stricter in terms of Degree equivalency than I-140.
Below are some recommendation by Nebraska Service Center for Degree equivalency:
1. US master’s degree – as long as it is in the field required no additional documents would be required no additional documents would be required
2. 4 yr bachelor’s degree + 2 yr master’s degree (India) – with degrees in the same or related fields this will generally be considered the equivalent to a U.S. master’s degree with no additional documents required
3. 3 yr bachelor’s degree + 3 yr master’s degree (India) – with degrees in the same or related fields this will generally be equivalent to U.S. master’s degree with no additional documents required
4. 3 yr bachelor’s degree + 1 yr postgraduate diploma + 2 yr master’s degree (India) with degrees in the same or similar field this would generally be considered the equivalent of a bachelor’s degree plus one additional year of education so the beneficiary would also need to have 5 yrs progressive experience. If the postgraduate diploma is determined to be progressive postgraduate education that is a continuation of the 3 yr bachelor’s degree it is possible that this would be considered the equivalent to a Master’s degree and there would be no need to establish 5 yrs progressive experience.
5. 3 yr bachelor’s degree + 2 yr master’s degree (India) – generally this would be the equivalent of a bachelor’s degree + 1 year and would require 5 yrs progressive experience to qualify under the 2nd preference category.
6. 3 yr bachelor’s degree + 2 yr master’s degree (India) + 5 yrs progressive, post master’s degree experience – Generally the educational degrees would be determined to be the equivalent of a US. bachelor’s + 1 year and the beneficiary would meet the statutory requirement
7. 3 yr bachelor’s degree + 2 yr master’s degree + 1 yr postgraduate diploma (India) – generally this would be the equivalent of a bachelor’s degree + 1 year and would require 5 yrs progressive experience to qualify under the 2nd preference category. If the postgraduate education that is a continuation of the 3 yr bachelor’s degree or the 2 yr master’s degree it is possible that this would be considered the equivalent to a US Master’s degree and there would be no need to establish 5 yrs progressive experience.
For more information contact Houston Immigration Lawyer or Houston Immigration Attorney, Annie Banerjee
Thursday, April 1, 2010
H-1B is dead
The USCIS announced today (April 01, 2010) that it has killed the H-1B program. I just saw this on their web site. The press release said that the Service could not control the program, that it went through too many intermediaries and is therefore impermissible. The Spokesperson from the Vermont Service Center, Mr. New Field said that the H-1B petition originated with the employer offering the employee a job. Then the employer had to go through an intermediary, the lawyer, who then goes through the Department of Labor and then through the post office, before submitting the petition to the Vermont Service Center. The Vermont Service Center then has to collect it through the pouring rain. The mail room clerks then collects the fee, and issues the receipts. The officer who ultimately adjudicates the petition cannot control the petition because of all these intermediaries. The USCIS cited Brown Vs Board of Education as precedent in discontinuing the program.
The memo further stated if your new H-1B petition reached their offices today, you need not worry. The CIS will do what they would have done anyways, deny the petition.
For more information contact Houston Immigration Lawyer or Houston Immigration Attorney, Annie Banerjee
The memo further stated if your new H-1B petition reached their offices today, you need not worry. The CIS will do what they would have done anyways, deny the petition.
For more information contact Houston Immigration Lawyer or Houston Immigration Attorney, Annie Banerjee
Wednesday, March 31, 2010
Immigration Consequences of a Crime
The Supreme Court of the United States today in Padilla V Kentucky, ruled that if an immigrant is wrongly advised by his Criminal Defense Attorney about the Immigration consequences of a crime,is prejudiced and cannot be automatically deported.
Padilla was a Vietnam vet and had been a Permanent Resident for more than 40 years. He was charged with drug distribution charges in Kentucky and his Criminal Defense lawyer told him to plead guilty, and that it would have no immigration consequences. He was wrong and Padilla was sent for deportation.
What is astonishing is that this conservative Supreme Court recognized that deportation laws are extremely harsh now. "While once there was only a narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation, immigration reforms have expanded the class of deportable offenses and limited judges’ authority to alleviate deportation’s harsh consequences. Because the drastic measure of deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes, the importance of accurate legal advice for noncitizens accused of crimes has never been more important. Thus, as a matter of federal law, deportation is an integral part of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes."
Thus Criminal Defense Lawyers have an affirmative duty to learn and advise clients about the immigration consequences of a crime.
For more information contact Houston Immigration Lawyer or Houston Immigration Attorney, Annie Banerjee
Padilla was a Vietnam vet and had been a Permanent Resident for more than 40 years. He was charged with drug distribution charges in Kentucky and his Criminal Defense lawyer told him to plead guilty, and that it would have no immigration consequences. He was wrong and Padilla was sent for deportation.
What is astonishing is that this conservative Supreme Court recognized that deportation laws are extremely harsh now. "While once there was only a narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation, immigration reforms have expanded the class of deportable offenses and limited judges’ authority to alleviate deportation’s harsh consequences. Because the drastic measure of deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes, the importance of accurate legal advice for noncitizens accused of crimes has never been more important. Thus, as a matter of federal law, deportation is an integral part of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes."
Thus Criminal Defense Lawyers have an affirmative duty to learn and advise clients about the immigration consequences of a crime.
For more information contact Houston Immigration Lawyer or Houston Immigration Attorney, Annie Banerjee
Wednesday, March 24, 2010
H-1B and Control Issues in Practice
On January 08, 2010, The CIS unilaterally, and through a memo banned the practice in many industries notably the IT and health care industry of assigning H-1B workers to third party sites. They said that the petitioning employer should "control" the beneficiary, and can only send beneficiaries to an end user client. Yes, its unfair, stupid, bad law, bad lawmaking. My previous blogs deals with this.
But how have these rules been implemented? We are finding that many officers are using that memo to deny cases, even when a consulting company sends the beneficiary to an end user. Government employees, unable to get into complex reasoning, has reduced the memo in practice to:
1. We see a Consulting Company
2. We have to deny (after all our bosses gave us all these beautiful write up for the denial letters based on the memo that we copy and paste to each denial)
3. Find whatever language we can find and say this shows "no control."
We had one case where the Consulting company had a contract with an end user Company. We provided all types of document, including the contract, the statement of work, documents showing payments from the end user company to the consulting company. The officer cited this one line in the contract to state that this end user company was NOT an end user: "Whereas [End user company] is in the business of providing Open Source solutions to its enterprise clients..." The end user Company creates software in house for their clients. Why would a Company create software if nobody buys that software from them?
In our case the individual was an H-1B extension, lived and worked here for 6 years and had filed the labor certification and I-140. Although you can appeal that denial, the appeal does not give him status. So he has to either convert to F-1 status or go back to India. The work of course will suffer.
His comment was, "The CIS is playing with our lives."
For more information contact Houston Immigration Lawyer or Houston Immigration Attorney, Annie Banerjee
But how have these rules been implemented? We are finding that many officers are using that memo to deny cases, even when a consulting company sends the beneficiary to an end user. Government employees, unable to get into complex reasoning, has reduced the memo in practice to:
1. We see a Consulting Company
2. We have to deny (after all our bosses gave us all these beautiful write up for the denial letters based on the memo that we copy and paste to each denial)
3. Find whatever language we can find and say this shows "no control."
We had one case where the Consulting company had a contract with an end user Company. We provided all types of document, including the contract, the statement of work, documents showing payments from the end user company to the consulting company. The officer cited this one line in the contract to state that this end user company was NOT an end user: "Whereas [End user company] is in the business of providing Open Source solutions to its enterprise clients..." The end user Company creates software in house for their clients. Why would a Company create software if nobody buys that software from them?
In our case the individual was an H-1B extension, lived and worked here for 6 years and had filed the labor certification and I-140. Although you can appeal that denial, the appeal does not give him status. So he has to either convert to F-1 status or go back to India. The work of course will suffer.
His comment was, "The CIS is playing with our lives."
For more information contact Houston Immigration Lawyer or Houston Immigration Attorney, Annie Banerjee
Tuesday, March 23, 2010
Hold off on Immigration Reform
The one party Health Care bill was signed into law today. Although I applaud Mr. Obama's attempt to work in a bipartisan manner, he should have slowed down the process to concede to the republican demands. He refused to compromise with the republicans, courted the democrats and rammed a bill down the throats of an unwilling population. That is NOT democracy. What will happen to that health care bill is that Republicans will file a court challenge to it. The conservative Supreme Court will declare it unconstitutional. In the meantime, in October the make up of the Senate and House will change. And the health care issue will die.
Our Separation of Powers works if the legislative majority and the Executive are not of the same party. With a single party holding swing over the Executive and Legislature the checks and balances are gone.
Yet probably unlike health care, Immigration can be bipartisan. There were at least two bills jointly put forward by a Republican and a Democrat. And former president Bush wanted immigration reform as much as President Obama does. Yet the parameters are different for different parties. The democrats want to legalize the undocumented aliens who are illegally here. They do mainly manual jobs, work hard, and are necessary for the country. However the democrats frown upon the intellectual jobs being done by mostly Indian and Chinese professionals, who are here legally on H-1B visas, giving into protectionist labor organizations.The H-1B visas have been attached ever since Mr. Obama took office. First there were the workplace raids, whose main purpose was to see if businesses were following the letter of the law minutely. Then came the January 08 memo, which virtually ended consulting companies (mainly IT companies) ability to hire foreign nationals on H-1B. These people are legal, have valid visas and work in professional jobs. They too are necessary for the American economy. American colleges do not generate a high volume of Computer Professionals necessary to keep American businesses going. The Republicans support these work visas, the democrats don't.
Comprehensive Immigration Reform has to be COMPREHENSIVE. Just as health care bill did not include provisions to curb tort lawyers, an Immigration bill which only addresses the illegal immigrants supplying manual labor and not the legal immigrants supplying intellectual labor is simply unacceptable.
For more information contact Houston Immigration Lawyer or Houston Immigration Attorney, Annie Banerjee
Our Separation of Powers works if the legislative majority and the Executive are not of the same party. With a single party holding swing over the Executive and Legislature the checks and balances are gone.
Yet probably unlike health care, Immigration can be bipartisan. There were at least two bills jointly put forward by a Republican and a Democrat. And former president Bush wanted immigration reform as much as President Obama does. Yet the parameters are different for different parties. The democrats want to legalize the undocumented aliens who are illegally here. They do mainly manual jobs, work hard, and are necessary for the country. However the democrats frown upon the intellectual jobs being done by mostly Indian and Chinese professionals, who are here legally on H-1B visas, giving into protectionist labor organizations.The H-1B visas have been attached ever since Mr. Obama took office. First there were the workplace raids, whose main purpose was to see if businesses were following the letter of the law minutely. Then came the January 08 memo, which virtually ended consulting companies (mainly IT companies) ability to hire foreign nationals on H-1B. These people are legal, have valid visas and work in professional jobs. They too are necessary for the American economy. American colleges do not generate a high volume of Computer Professionals necessary to keep American businesses going. The Republicans support these work visas, the democrats don't.
Comprehensive Immigration Reform has to be COMPREHENSIVE. Just as health care bill did not include provisions to curb tort lawyers, an Immigration bill which only addresses the illegal immigrants supplying manual labor and not the legal immigrants supplying intellectual labor is simply unacceptable.
For more information contact Houston Immigration Lawyer or Houston Immigration Attorney, Annie Banerjee
Thursday, March 18, 2010
Why we need H-1B workers
The USCIS charges a hefty ACWIA fee for each H-1B petition filed. The fee is either $1500 (for employers having more than 25 employees) or $750 (if the employer has less than 25 employees).
The rationale behind these fees is that the Government will use this money to teach American workers to do the job. But of course this money goes into that deep dark hole called the Government.
But America could easily train its students to perform at a much higher rate by spending NO money.
1. Create an atmosphere where education is held to a higher respect than sports or cheer leading. The only March madness that all other countries worry about are those big fat college acceptance letters showing up on students' mailboxes.
2. Make College acceptances more fair. The "Holistic" approach that Colleges apply to "Judge" students is arbitrary and fraudulent. I am not saying that students should be bookworms or nerds and not do extracurricular. But the main determinant for getting into colleges should be grades and SATs. There is no way to judge if a piano player is better than a violin player, or a person with XYZ community service is better than one with ABC community service. Students routinely build their resumes with fluff to satisfy the colleges, a time better spent in studying and doing something they enjoy to develop themselves, rather than conforming to a set of rules dictated by colleges. In India, Engineering and Medical School acceptances are blind, based on only scores of a very hard standardized exam. It is true that it is much harder to get into IIT than to Harvard. And if these students want to come over to the US because of higher pay, why blame them? The US ultimately profits.
3. Do away with Legacy acceptances. That is nothing short of white, privileged people (like former pres George W Bush) preserving the college acceptances for their worthless kids. Many parents of today's college age kids entered college before there was the SATs. College acceptances in those days was based on color and lineage. These people then want their kids to enter their alma mater. The legacy kids are generally academically inferior and walk around with a sense of entitlement. Yet better students do not get in. In fact Princeton was sued by an Asian male recently for discrimination. Likewise affirmative action should be means dependent rather than color dependent. The economically poor do not get the same opportunity as the richer kids in terms of college preparedness and should be given an advantage to level the plain field.
Of course there is no legal way to make private colleges fair other than to cut out their Governmental research funding and thereby diminishing their US News And World Report rank. If America cannot give the very best education to deserving students and create professional workers, we have to import them from countries like India. And how does India, a poor country produce so many professionals?
For more information contact Houston Immigration Lawyer or Houston Immigration Attorney, Annie Banerjee
The rationale behind these fees is that the Government will use this money to teach American workers to do the job. But of course this money goes into that deep dark hole called the Government.
But America could easily train its students to perform at a much higher rate by spending NO money.
1. Create an atmosphere where education is held to a higher respect than sports or cheer leading. The only March madness that all other countries worry about are those big fat college acceptance letters showing up on students' mailboxes.
2. Make College acceptances more fair. The "Holistic" approach that Colleges apply to "Judge" students is arbitrary and fraudulent. I am not saying that students should be bookworms or nerds and not do extracurricular. But the main determinant for getting into colleges should be grades and SATs. There is no way to judge if a piano player is better than a violin player, or a person with XYZ community service is better than one with ABC community service. Students routinely build their resumes with fluff to satisfy the colleges, a time better spent in studying and doing something they enjoy to develop themselves, rather than conforming to a set of rules dictated by colleges. In India, Engineering and Medical School acceptances are blind, based on only scores of a very hard standardized exam. It is true that it is much harder to get into IIT than to Harvard. And if these students want to come over to the US because of higher pay, why blame them? The US ultimately profits.
3. Do away with Legacy acceptances. That is nothing short of white, privileged people (like former pres George W Bush) preserving the college acceptances for their worthless kids. Many parents of today's college age kids entered college before there was the SATs. College acceptances in those days was based on color and lineage. These people then want their kids to enter their alma mater. The legacy kids are generally academically inferior and walk around with a sense of entitlement. Yet better students do not get in. In fact Princeton was sued by an Asian male recently for discrimination. Likewise affirmative action should be means dependent rather than color dependent. The economically poor do not get the same opportunity as the richer kids in terms of college preparedness and should be given an advantage to level the plain field.
Of course there is no legal way to make private colleges fair other than to cut out their Governmental research funding and thereby diminishing their US News And World Report rank. If America cannot give the very best education to deserving students and create professional workers, we have to import them from countries like India. And how does India, a poor country produce so many professionals?
For more information contact Houston Immigration Lawyer or Houston Immigration Attorney, Annie Banerjee
Wednesday, March 10, 2010
Time for New H-1B filings
There are 65,000 general plus 20,000 US Master's Degree holder H-1B visa given annually. The Government's fiscal year starts on October, and they begin taking applications 6 months before that. Thus the CIS announced that for the fiscal year 2011, they will begin accepting H-1B applications from April 01, 2010.
In recent years, ie 2007 and 2008, there were more than 100,000 petitions filed on April 01. The CIS held a lottery and only the lucky 65K plus 20K got in. This created a myth amongst employers that they have to file on April 01, or they will not get in. However that is not the case. The CIS will continue to accept applications until the H-1B quota is finished. Last year, in 2009 (for the fiscal year 2010) the quota was finished on December 21, 2009. They started accepting applications on April 01, 2009. That was because the economic downturn and US unemployment reduced the need for hiring new employees, especially H-1B employees who are expensive. The high unemployment rates still continues. In addition the January 08, 2010 memo by CIS effectively killed the IT industry sponsorship, and IT was the biggest user of H-1B visas. Thus, the H-1B quota finishing on April 01 this year is extremely unlikely.
Additionally, the Labor Condition Application, a precondition to filing the H-1B application which used to be instant this time last year, is taking about 2-3 weeks, thanks to an incompetent labor department.
Also the Request for Additional Evidence from the CIS for H-1B has increased exponentially. Thus we are taking our time to gather a ton of documents and present a water tight case to the CIS, instead of rushing to file the H-1B petition on April 01, 2010.
Contact Houston Immigration Lawyer, Annie Banerjee for more details
In recent years, ie 2007 and 2008, there were more than 100,000 petitions filed on April 01. The CIS held a lottery and only the lucky 65K plus 20K got in. This created a myth amongst employers that they have to file on April 01, or they will not get in. However that is not the case. The CIS will continue to accept applications until the H-1B quota is finished. Last year, in 2009 (for the fiscal year 2010) the quota was finished on December 21, 2009. They started accepting applications on April 01, 2009. That was because the economic downturn and US unemployment reduced the need for hiring new employees, especially H-1B employees who are expensive. The high unemployment rates still continues. In addition the January 08, 2010 memo by CIS effectively killed the IT industry sponsorship, and IT was the biggest user of H-1B visas. Thus, the H-1B quota finishing on April 01 this year is extremely unlikely.
Additionally, the Labor Condition Application, a precondition to filing the H-1B application which used to be instant this time last year, is taking about 2-3 weeks, thanks to an incompetent labor department.
Also the Request for Additional Evidence from the CIS for H-1B has increased exponentially. Thus we are taking our time to gather a ton of documents and present a water tight case to the CIS, instead of rushing to file the H-1B petition on April 01, 2010.
Contact Houston Immigration Lawyer, Annie Banerjee for more details
Thursday, March 4, 2010
If only our Government had common sense
In the Matter of UMG Logistics today, Balca denied the case because they felt that knowledge of Spanish is not necessary for a truck driver who will deliver goods exclusively to a small community in Mexico. Balca said that the employer merely asserted that Spanish is required without giving evidence for it. Come on Balca and DOl, we all live in the US. We have all visited Mexico. Ok, maybe you have only visited Cancun, but surely you know a Mexican person whose English is not quite great. It does not take a genius to realize that you cannot do business in interior of Mexico without knowing Spanish.
Similarly, I was given a Request for Evidence (RFE) in a National Interest Waiver Case, asking me to prove that breast cancer research is National in scope and not local. We had to actually give National Statistics to prove that breast cancer is National.
But then, we never hired Federal workers for their ability to think and rationalize.
Contact Houston Immigration Lawyer, Annie Banerjee for more details
Similarly, I was given a Request for Evidence (RFE) in a National Interest Waiver Case, asking me to prove that breast cancer research is National in scope and not local. We had to actually give National Statistics to prove that breast cancer is National.
But then, we never hired Federal workers for their ability to think and rationalize.
Contact Houston Immigration Lawyer, Annie Banerjee for more details
Thursday, February 25, 2010
Piece by Piece Legislation
The Republicans seem to think that a piece by piece, instead of a Comprehensive Health Care bill will be better. I think that a piece by piece Immigration Bill, instead of a Comprehensive Immigration bill will also have a higher likelihood of passing. The American people and Congress are afraid of sweeping legislation that will change the face of this nation. Besides, in Immigration Law, just like it is in health care, the issues are completely different for Republicans and Democrats. The Republicans are friendlier towards Employment issues, the Democrats want to legalize the illegal people.
Yet there are certain things that both party agree on, like the Dream Act, legalizing illegal American College grads. To not pass this bill unless you can have a Comprehensive Immigration bill does no good to anyone.
The best chance of a Comprehensive Immigration bill to have passed Congress, was the McCain (R)-Kennedy (late senator Ted Kennedy, D)in the Bush Administration. Even that bill died. If it is impossible to do a complete overhaul, lets attempt it piece by piece.
Contact Houston Immigration Lawyer, Annie Banerjee for more details
Yet there are certain things that both party agree on, like the Dream Act, legalizing illegal American College grads. To not pass this bill unless you can have a Comprehensive Immigration bill does no good to anyone.
The best chance of a Comprehensive Immigration bill to have passed Congress, was the McCain (R)-Kennedy (late senator Ted Kennedy, D)in the Bush Administration. Even that bill died. If it is impossible to do a complete overhaul, lets attempt it piece by piece.
Contact Houston Immigration Lawyer, Annie Banerjee for more details
Thursday, February 18, 2010
Jan 8th H-1B Memo Revisited
After that devastating H-1B Neufield Memo of January 08, 2010, today the USCIS had a stakeholder's meeting for comments on that memo. (For details on this memo, please see my Jan 21 blog). Effectively this memo paralyzed certain types of H-1B cases specially the IT Consulting Services and staffing agencies. The rationale behind the memo is that these parties do not have control over their employees, and thus are not employers in the H-1B context.
The justification cited by the USCIS was that they wanted to maintain consistency of adjudications between the different service centers. After being told though that they have opened a pandora's box and their memo might be interpreted differently. The Service Center said that every denial will receive "supervisory review." Lets hope that CIS "CONTROLS" these supervisors.
Congressman Morrison, who wrote the H-1B legislation specifically stated in the meeting that Congress did not intend to exclude staffing companies (and IT consulting Companies) from H-1B jobs and that this memo is wrong and will have devastating policy consequences.
Others including Crystal Williams of AILA pointed out that since both the Supreme Court cases (Darden-Clakcamas) were not on point, and this memo created new rules for employer-employee relationship that it amounted to impermissible rule making by a Governmental agency. By law, an Agency has to publish a rule and have a notice and comment period, and consider all comments before making a rule. Thus this memo should be withdrawn. Interestingly a caller even said that the Darden-Clakcamas cases refer to the EEOC manual, where the IT staffing Companies are used as examples of valid Employer-Employee relationship. Thus the CIS' citations actually contradict their position. The caller asked whether anyone actulayy read the cases before citing them as authority.
Others made policy statements, like cutting down H-1B jobs will effectively outsource those jobs. Also prohibition of investors will hurt USA in these dire economic times.
Then there were some CIS supporters. There was a PhD from some anti immigration group who said he was a PhD in some type of radio Physics, was out of a job because employers want younger employees. Well, if H-1B was stopped, employers would still hire new grads, only they would be American grads, and those at the bottom of their classes who had no hope of getting another job. Look at the Nobel laureate list for 2010 for USA. All those medals would simply go to other countries.
The CIS did notice that there were numerous blogs criticizing their memo.
The question remains as to what it will take for USCIS to reverse its stance. It took the election of a Republican senator to change the health care debate. The CIS noted that even Capital Hill is commenting about their Jan 08 memo.
This memo according to them took years to make. Even then, the policy making personnel at CIS did not read the entire Supreme Court cases. To undo this memo may take the same time. Maybe their employer, Mr. Obama, should control them tightly against such arbitrary rule making.
Contact Houston Immigration Lawyer, Annie Banerjee for more details
The justification cited by the USCIS was that they wanted to maintain consistency of adjudications between the different service centers. After being told though that they have opened a pandora's box and their memo might be interpreted differently. The Service Center said that every denial will receive "supervisory review." Lets hope that CIS "CONTROLS" these supervisors.
Congressman Morrison, who wrote the H-1B legislation specifically stated in the meeting that Congress did not intend to exclude staffing companies (and IT consulting Companies) from H-1B jobs and that this memo is wrong and will have devastating policy consequences.
Others including Crystal Williams of AILA pointed out that since both the Supreme Court cases (Darden-Clakcamas) were not on point, and this memo created new rules for employer-employee relationship that it amounted to impermissible rule making by a Governmental agency. By law, an Agency has to publish a rule and have a notice and comment period, and consider all comments before making a rule. Thus this memo should be withdrawn. Interestingly a caller even said that the Darden-Clakcamas cases refer to the EEOC manual, where the IT staffing Companies are used as examples of valid Employer-Employee relationship. Thus the CIS' citations actually contradict their position. The caller asked whether anyone actulayy read the cases before citing them as authority.
Others made policy statements, like cutting down H-1B jobs will effectively outsource those jobs. Also prohibition of investors will hurt USA in these dire economic times.
Then there were some CIS supporters. There was a PhD from some anti immigration group who said he was a PhD in some type of radio Physics, was out of a job because employers want younger employees. Well, if H-1B was stopped, employers would still hire new grads, only they would be American grads, and those at the bottom of their classes who had no hope of getting another job. Look at the Nobel laureate list for 2010 for USA. All those medals would simply go to other countries.
The CIS did notice that there were numerous blogs criticizing their memo.
The question remains as to what it will take for USCIS to reverse its stance. It took the election of a Republican senator to change the health care debate. The CIS noted that even Capital Hill is commenting about their Jan 08 memo.
This memo according to them took years to make. Even then, the policy making personnel at CIS did not read the entire Supreme Court cases. To undo this memo may take the same time. Maybe their employer, Mr. Obama, should control them tightly against such arbitrary rule making.
Contact Houston Immigration Lawyer, Annie Banerjee for more details
Wednesday, February 17, 2010
Degree Equivalency for I-140
Everyone knows that the CIS is in a denying mode and will deny every Employment based petition that it possibly can. Add that to the equation that for India and China the Employment based Third Preference petitions for India is currently being processed for people who filed in July of 2001. A lot of client want to get onto the second preference category. But the requirements for EB-2 are very strict. The minimum qualification for an EB-2 job is at least a Master's Degree or a Bachelor's Degree plus 5 years of experience. The Experience has to be obtained after the degree is obtained and before starting the job with the sponsor. (The rationale being that if the sponsor provided the beneficiary with the experience, it can provide an Us Citizen with the same experience opportunity).
However, the CIS is extremely harsh with Indian degrees.
A three year Bachelors Degree from India is not equivalent to a Bachelor's degree here.
A three year Bachelors degree in a general field and a one (or sometimes two year) Masters degree in a particular field from India is not equivalent to a Bachelors degree in the US
A Bachelors degree in some field and a Masters in another specific field is not equivalent to a Masters even if the time frame for both studies is 6 years.
A Four year Bachelor's Degree and 1 year Masters is not equivalent to a Masters
The waters are more muddied by the fact that all these cases are decided on a "case by case basis." There is no consistency between cases even in the same service center.
I realize that there are some institutions in India that are not good, but so are many institutions in the US. India has 1 billion people and the competition to get into Universities is far higher than in the US. Yet, the US looks favorably to a degree from say England, than it does to a degree from India. As they say in India, if you cannot get into IIT, apply to MIT or Harvard.
And for the record, Obama did not get into Columbia as an undergraduate in the freshman year. He transferred from Occidental College. And Bush could not have gotten into any college based on merit. Saint John's School in Houston refused him admission as a kid.
Contact Houston Immigration Lawyer, Annie Banerjee for more details
However, the CIS is extremely harsh with Indian degrees.
A three year Bachelors Degree from India is not equivalent to a Bachelor's degree here.
A three year Bachelors degree in a general field and a one (or sometimes two year) Masters degree in a particular field from India is not equivalent to a Bachelors degree in the US
A Bachelors degree in some field and a Masters in another specific field is not equivalent to a Masters even if the time frame for both studies is 6 years.
A Four year Bachelor's Degree and 1 year Masters is not equivalent to a Masters
The waters are more muddied by the fact that all these cases are decided on a "case by case basis." There is no consistency between cases even in the same service center.
I realize that there are some institutions in India that are not good, but so are many institutions in the US. India has 1 billion people and the competition to get into Universities is far higher than in the US. Yet, the US looks favorably to a degree from say England, than it does to a degree from India. As they say in India, if you cannot get into IIT, apply to MIT or Harvard.
And for the record, Obama did not get into Columbia as an undergraduate in the freshman year. He transferred from Occidental College. And Bush could not have gotten into any college based on merit. Saint John's School in Houston refused him admission as a kid.
Contact Houston Immigration Lawyer, Annie Banerjee for more details
Wednesday, February 3, 2010
CIS Cover UP
By Law the Citizenship and Immigration Service has to adjudicate the Employment Authorization Document (EAD Card) within 90 days of filing. However in many instances they do not. When the Applicant calls the CIS, they simply make up reasons which are not plausible. Below is a list of excuses that CIS has given to my clients:
1. The case was closed because no one replied to an RFE. (Interestingly enough no one received an RFE, neither the attorney nor the Applicant) both of who has correct address in the CIS database. When we ask to reopen the case, the resulting RFE that is issued contains a laundry list of documents already submitted
2. Card returned as sent to wrong address. The Applicant does not have any problems receiving any other document or notices from the CIS and has not changed their address. Additionally the Attorney does not receive an approval notice either.
3. Officers are rude. I am copying something written to me by a client in an E mail when an USC had to call for the EAD card for her husband: "Immigrations is not fair, we pay, we file, we follow up, and when I called they weren't going to talk with me again, and then I said that is what I was told last time, but my attorney and case worker said no that I had a right to call as the petitioner, and she still refused to help me so I ask for her supervisor and she started saying real loud, if you raise your voice again I will hang up, I never raised my voice ever and ask her what she was talking about and then she hung up, after my being on hold and transferred for about an hour, she never gave me her badge number or name, and when I called back the other girl who did help me tried to find out who she was but couldn't. This is tiresome and they treat you like you have no rights."
There is no oversight of the USCIS. Immigrants denied the right to stay or work, are too scared to question. I suspect these officers do not want to work, and then the whole system works as a cover up.
Contact Houston Immigration Lawyer, Annie Banerjee for more details
1. The case was closed because no one replied to an RFE. (Interestingly enough no one received an RFE, neither the attorney nor the Applicant) both of who has correct address in the CIS database. When we ask to reopen the case, the resulting RFE that is issued contains a laundry list of documents already submitted
2. Card returned as sent to wrong address. The Applicant does not have any problems receiving any other document or notices from the CIS and has not changed their address. Additionally the Attorney does not receive an approval notice either.
3. Officers are rude. I am copying something written to me by a client in an E mail when an USC had to call for the EAD card for her husband: "Immigrations is not fair, we pay, we file, we follow up, and when I called they weren't going to talk with me again, and then I said that is what I was told last time, but my attorney and case worker said no that I had a right to call as the petitioner, and she still refused to help me so I ask for her supervisor and she started saying real loud, if you raise your voice again I will hang up, I never raised my voice ever and ask her what she was talking about and then she hung up, after my being on hold and transferred for about an hour, she never gave me her badge number or name, and when I called back the other girl who did help me tried to find out who she was but couldn't. This is tiresome and they treat you like you have no rights."
There is no oversight of the USCIS. Immigrants denied the right to stay or work, are too scared to question. I suspect these officers do not want to work, and then the whole system works as a cover up.
Contact Houston Immigration Lawyer, Annie Banerjee for more details
Friday, January 29, 2010
What triggers H-1B audits
In July of 2010, the CIS decided to use the $500/- fraud fee and conduct sweeping raids of many H-1B sponsoring companies. They conducted a study which revealed that a lot of H-1B Sponsors were not following the rules. The following are some of the criteria that was recently released by ICE as to what factors were used to determine what businesses to raid.
1. Unknown or unusual addresses or email addresses--- who determines what is unusual? Are officers familiar with every type of business in America. They then have more brain than Einstein.
2. Skill/age/salary/ education does not match job requirements- If this happens, why not simply deny the petition?
3. No record of correspondence with parent company-This is for L-1 cases, and is understandable.
4. Zoning inconsistent with business-The CIS does not believe that businesses can be conducted from homes, so they frown upon any address that does not look like an office address. I doubt the officers actually look at specific zoning requirements of any subdivision.
5. Unusual data in quarterly reports
6. Labor certification right before sunset of 245i (April 30, 2001)
7. Multiple filings by petitioner is inconsistent with company size- Company's Size is the big no no for CIS. Small businesses are not allowed to thrive under the democratic rule.
8. Location on ETA 750A or ETA 9035 differs from place of employment
9. No record of providing goods or services
10. Boilerplate documents that are in more than one petition- This can be problematic especially when the Companies file H-1B by themselves and use the same job description for every petition.
As anyone can see a lot of these are subjective criteria, leaving much room for discrimination. Thus overwhelmingly, small Companies are raided rather than big ones. This puts an undue burden on small companies who don't have resources to fight the Government.
Moreover the officers used in the raids are often new and untrained in the Complexities of Immigration Law. So rather than some job creation, the only purpose of the H-1B raids is to hassle employers and H-1B beneficiaries.
Contact Houston Immigration Lawyer, Annie Banerjee for more details
1. Unknown or unusual addresses or email addresses--- who determines what is unusual? Are officers familiar with every type of business in America. They then have more brain than Einstein.
2. Skill/age/salary/ education does not match job requirements- If this happens, why not simply deny the petition?
3. No record of correspondence with parent company-This is for L-1 cases, and is understandable.
4. Zoning inconsistent with business-The CIS does not believe that businesses can be conducted from homes, so they frown upon any address that does not look like an office address. I doubt the officers actually look at specific zoning requirements of any subdivision.
5. Unusual data in quarterly reports
6. Labor certification right before sunset of 245i (April 30, 2001)
7. Multiple filings by petitioner is inconsistent with company size- Company's Size is the big no no for CIS. Small businesses are not allowed to thrive under the democratic rule.
8. Location on ETA 750A or ETA 9035 differs from place of employment
9. No record of providing goods or services
10. Boilerplate documents that are in more than one petition- This can be problematic especially when the Companies file H-1B by themselves and use the same job description for every petition.
As anyone can see a lot of these are subjective criteria, leaving much room for discrimination. Thus overwhelmingly, small Companies are raided rather than big ones. This puts an undue burden on small companies who don't have resources to fight the Government.
Moreover the officers used in the raids are often new and untrained in the Complexities of Immigration Law. So rather than some job creation, the only purpose of the H-1B raids is to hassle employers and H-1B beneficiaries.
Contact Houston Immigration Lawyer, Annie Banerjee for more details
Thursday, January 21, 2010
Consulting Companies as Employers for H-1B
In the Computer Consulting business a company (Lets say Company A) might place an employee with one vendor (Lest say Vendor B) and the company itself may not have a contract with the end user. (Let say Enduser C) However, according to Citizenship and Immigration Service the Company A cannot be a sponsor for that beneficiary’s H-1B visa.
The regulations say that “a United States employer” can file for H-1B for the beneficiary. The Citizenship and Immigration Service looks to Common Law to determine the “Employer-Employee Relationship” whereby the employer has to have CONTROL of the Employee. If Company A does not have the contract with End user C, then Company A cannot control the work product of the beneficiary. Enduser C, at whose premises Beneficiary will work, has no dealing with Employer A, but goes through Vendor B. In this scenario, Vendor B has to be the sponsor.
Control depends on a combination of factors listed below, but the control has to be Actual Control. So Employer A not only should have the right to hire, fire and pay the employee, but also to supervise the employee. In the scenario above Vendor B is liable to Enduser C for the work quality. Enduser C will hold Vendor B liable if anything goes wrong. Company A cannot enter the premises of Enduser C to check how the employee is working. Company A must have the right to control WHEN, WHERE and HOW the employee will work, and cannot do that, simply because there is no contractual relationship between Company A and Enduser C.
The Citizenship and Immigration Service look into the totality of the following factors in deciding whether the employee-employer relationship exists in an H-1B situation:
1. Does the petitioner supervise the beneficiary and is such supervision off-site or on-site?
2. If the supervision is off-site, how does the petitioner maintain such supervision, weekly calls, reporting back to main office routine, or site visits by the petitioner?
3. Does the petitioner have the right to control the work of the beneficiary on a day-to-day basis if such control is required?
4. Does the petitioner provide the tools or instrumentalities needed for the beneficiary to perform the duties of employment?
5. Does the petitioner evaluate the work-product of the beneficiary, i.e. progress/performance reviews?
6. Does the beneficiary use proprietary information of the petitioner in order to perform the duties of employment?
7. Does the beneficiary produce an end-product that is directly linked to the petitioner’s line of business?
8. Does the petitioner have the ability to control the manner and means in which the work product of the beneficiary is accomplished?
9. Does the petitioner hire, pay, and have the ability to fire the beneficiary?
10. Does the petitioner claim the beneficiary for tax purposes?
11. Does the petitioner provide the beneficiary any type of employee benefits
However simply complying with the last three things above is not enough.
These rules were established by Common Law, invented at a time when the only ‘professions’ were probably priests. There were few if any universities. Why would the modern employer have to “Control” someone with a Bachelor’s Degree, and in some cases does the employer even have the education and ability to “control” the beneficiary in the 21st Century? Unfortunately immigration law is filled with archaic laws which a vastly divided Congress does not even care to address. But businesses and America’s ability to compete in this global world suffers.
Contact Houston Immigration Lawyer, Annie Banerjee for more details
The regulations say that “a United States employer” can file for H-1B for the beneficiary. The Citizenship and Immigration Service looks to Common Law to determine the “Employer-Employee Relationship” whereby the employer has to have CONTROL of the Employee. If Company A does not have the contract with End user C, then Company A cannot control the work product of the beneficiary. Enduser C, at whose premises Beneficiary will work, has no dealing with Employer A, but goes through Vendor B. In this scenario, Vendor B has to be the sponsor.
Control depends on a combination of factors listed below, but the control has to be Actual Control. So Employer A not only should have the right to hire, fire and pay the employee, but also to supervise the employee. In the scenario above Vendor B is liable to Enduser C for the work quality. Enduser C will hold Vendor B liable if anything goes wrong. Company A cannot enter the premises of Enduser C to check how the employee is working. Company A must have the right to control WHEN, WHERE and HOW the employee will work, and cannot do that, simply because there is no contractual relationship between Company A and Enduser C.
The Citizenship and Immigration Service look into the totality of the following factors in deciding whether the employee-employer relationship exists in an H-1B situation:
1. Does the petitioner supervise the beneficiary and is such supervision off-site or on-site?
2. If the supervision is off-site, how does the petitioner maintain such supervision, weekly calls, reporting back to main office routine, or site visits by the petitioner?
3. Does the petitioner have the right to control the work of the beneficiary on a day-to-day basis if such control is required?
4. Does the petitioner provide the tools or instrumentalities needed for the beneficiary to perform the duties of employment?
5. Does the petitioner evaluate the work-product of the beneficiary, i.e. progress/performance reviews?
6. Does the beneficiary use proprietary information of the petitioner in order to perform the duties of employment?
7. Does the beneficiary produce an end-product that is directly linked to the petitioner’s line of business?
8. Does the petitioner have the ability to control the manner and means in which the work product of the beneficiary is accomplished?
9. Does the petitioner hire, pay, and have the ability to fire the beneficiary?
10. Does the petitioner claim the beneficiary for tax purposes?
11. Does the petitioner provide the beneficiary any type of employee benefits
However simply complying with the last three things above is not enough.
These rules were established by Common Law, invented at a time when the only ‘professions’ were probably priests. There were few if any universities. Why would the modern employer have to “Control” someone with a Bachelor’s Degree, and in some cases does the employer even have the education and ability to “control” the beneficiary in the 21st Century? Unfortunately immigration law is filled with archaic laws which a vastly divided Congress does not even care to address. But businesses and America’s ability to compete in this global world suffers.
Contact Houston Immigration Lawyer, Annie Banerjee for more details
Friday, January 8, 2010
Is DOL becoming Socialist?
The DOL introduced a new Prevailing Wage system which will centralize everything. Previously each State's Workforce Agency gave those Prevailing Wage. Obviously there were discrepancies in how each SWA operated causing problems with DOL filings.
However, DOL introduced this new system of centralized Prevailing Wage determination with no computerized system of filing. We have to mail in our request to the DOL. Then the DOL will take forever to come up with a Prevailing Wage. The DOL has advised employers to file the Prevailing Wage 60 days prior to advertising for a PERM, since the ads expire in 6 months. This is strange because the DOL went computerized much earlier than the CIS did. Why could they not have a faster computerized process BEFORE centralizing the whole process? Was this then intentional?
This will slow down businesses, and filing of immigration. Similarly in July of 2009 the DOL significantly slowed down the LCA filings for H-1Bs. Which makes me wonder if DOL is slowing down things as a protectionist measure which caters to socialism? Is this the death of free enterprise, and business at the speed of 21 Century? It was another Democratic President and Congress that passed the AC 21 to speed the process up about a decade ago.
Contact Houston Immigration Lawyer, Annie Banerjee for more details
However, DOL introduced this new system of centralized Prevailing Wage determination with no computerized system of filing. We have to mail in our request to the DOL. Then the DOL will take forever to come up with a Prevailing Wage. The DOL has advised employers to file the Prevailing Wage 60 days prior to advertising for a PERM, since the ads expire in 6 months. This is strange because the DOL went computerized much earlier than the CIS did. Why could they not have a faster computerized process BEFORE centralizing the whole process? Was this then intentional?
This will slow down businesses, and filing of immigration. Similarly in July of 2009 the DOL significantly slowed down the LCA filings for H-1Bs. Which makes me wonder if DOL is slowing down things as a protectionist measure which caters to socialism? Is this the death of free enterprise, and business at the speed of 21 Century? It was another Democratic President and Congress that passed the AC 21 to speed the process up about a decade ago.
Contact Houston Immigration Lawyer, Annie Banerjee for more details
Tuesday, January 5, 2010
Airport Searches
The Christmas day incident about the attempted Airplane bombing reveal that we are not safe and terrorism can happen, even with the security system in place. The US yesterday revealed a list of 10 countries whose citizens will face added searches, including padding down. The countries are: Nigeria, Yemen, Pakistan, Afghanistan, Libya, Somalia, Iran, Sudan, Syria and Cuba. While there is little doubt that these countries have terrorist cells, patting down a 70 year old grandmother from Pakistan will not achieve anything. It will simply be a waste of time, because the terrorists will recruit persons from non listed countries, or get passports and visas from some of these countries. So we will simply have to add countries to this list.
Israel does a behavior recognition system which works wonderfully. They do added searches to people looking nervous. But Israel is a small country and can take its time with all passengers. It is impossible to train TSA personnel to operate fast and look for behavior issues for the volume of traveler we have in the US.
The best thing to do is to have body scanners in all airports. Yes, its expensive to install, but in the long run its much cheaper. And those who feel like their privacy will be violated, maybe should not travel.
Contact Houston Immigration Lawyer, Annie Banerjee for more details
Israel does a behavior recognition system which works wonderfully. They do added searches to people looking nervous. But Israel is a small country and can take its time with all passengers. It is impossible to train TSA personnel to operate fast and look for behavior issues for the volume of traveler we have in the US.
The best thing to do is to have body scanners in all airports. Yes, its expensive to install, but in the long run its much cheaper. And those who feel like their privacy will be violated, maybe should not travel.
Contact Houston Immigration Lawyer, Annie Banerjee for more details
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