Due Process at Consular Posts

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

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

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

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

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

Contact Houston Immigration Lawyer, Annie Banerjee for more details

The Reentry Permit

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

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

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

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

Contact Houston Immigration Lawyer, Annie Banerjee for more details

Is Work Criminal?

The Bush Government is solidly anti work when it comes to immigration. Yes, I admit that a worker must have the legal right to work. But employers know this too, and they would not take in immigrants if they found immigrants and United States Citizens ready to work. The anti Immigration forces make a huge deal about how immigrants are into crime, violence, etc. Yet Immigration and Custom Enforcement's major focus is work place raids to eradicate illegal workers, not illegal criminals. Unless of course working was criminal!

But the same is true for legal workers who are not from this country. Everyday I hear stories from clients about how long the work permits are taking, and how they simply cannot get the CIS to issue them quickly. These workers are forced to quit and in many cases force to go back to their home country. Many of them are in fields like research or IT where there simply is not enough qualified immigrants to do the job.

Even though the economy is bad, we still need skilled workers. Laid off auto workers in Detroit will not be able to perform bio tech research. And if we continue to have this same policy, US will continue to slip behind.

I know that the economy and not immigration is the major focus of the Obama Government. But America as a nation was built by immigrants and will continue to prosper as long as we get hardworking immigrants in.

Just like a plant that has to work harder to survive in unaccustomed earth, human being flourish better if they have to fight in a foreign land with scant help.


Contact Houston Immigration Lawyer, Annie Banerjee for more details

Please leave this country, Please?

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

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

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

VWP Nations Require to sign in before Departure

US has reciprocity with many nations, (Like Europe, Japan and Singapore), whose citizens can travel to the US without a visa. These people visit the US under the Visa Waiver Program. United States Citizens also can travel to these countries without a visa. The idea is that citizens of these countries will not remain illegally in the US, and it will facilitate travel, especially business travel.

From August 8, due to security reasons, US will be requiring all travelers under VWP to register online before leaving for the US. Once anyone registers and gets a travel authorization, it will be valid for 2 years. The questions will be the same required for an I-94 in the plane.

Europe is already contemplating similar actions for US travelers.

Hopefully this program will work and not result in fewer business and pleasure travelers to the US, resulting in fewer amount of money generated in the US.

The Politics of Immigration

The issue of Immigration has broad bi partisan support. But at loggerheads are two issues, business immigration and granting status to illegal immigrants. Business immigration laws restrict the number of immigrants that can come in for instance on the H-1B visa (professional visa) and employment based green cards. Tech companies like google and Microsoft are severely affected. This year google received more than 1 million application for jobs . They filed only 300 H-1B visas. 90 of those visas did not get accepted. Google has the reputation of being one of the best employers and hire the very best. In fact one of google founders, Sergey Brin, is an immigrant.

Responding to complaints by Google and Microsoft, both the house and senate has bills to increase the H-1B quotas and exclude people in Science, Technology, Engineering and Mathematics (STEM) from the quota.

But such bills are often not passed, and tend to be rejected by those law makers who believe that there is more pressing need to legalize illegal immigrants rather than do something about business immigration. Comprehensive immigration is great, but almost impossible to pass in this divided congress. Yet the champions of legalizing illegal immigrants often do not want to pass immigration reform to grant businesses more professional immigrants. Ultimately, what those Senators and Congressmen and women fail to see is that Immigration benefits us, no matter what type it is. Restricting professional immigrants just results in those professional jobs being outsources to other countries, and the US loosing its foothold in the world.

DOL audits all PERMS of Mega Immigration Law Firm

The Department of Labor announced yesterday that it will audit every PERM filing by Fragomen, which is the biggest immigration law firm in the US. The DOL charged that some of their lawyers engaged in questionable and illegal practices while advising employers. What it means for individual clients is that their cases will be delayed, in many cases denied, and in still many cases the employer has to do supervised recruitment all over again. All because they chose the wrong law firm.

The biggest law firms almost always charge more and tout their experience. Sometimes they even say that the CIS knows their firm personally and give them better service. This is all totally false. The only thing that big law firms care about is their profit margin. The clients pay for their shiny offices and become just a number in the firm. They are not individual cases, just a number. The paralegal does all the work and many times, the attorney does not even have the time to review the case over. Many times, the paralegal does not even possess the paralegal degree and just knows how to type.

When retaining a lawyer, the client should ask the question as to who will actually work on the case, and what the education and experience of that person is. It is also helpful to ask how many clients the firm has and how many lawyers there are. Divide the number to gauge if an individual lawyer will actually look at your case.

We specialize in giving individual attention to all our clients. ALL cases are individually handled by Annie Banerjee who graduated third highest in her law school class in Houston and has over 10 years of experience. Check us out at http://www.visatous.com

The Brighest and the Best

Anti Immigration groups like the Center for Immigration Studies charge that the foreign workers who come in to the United States are not the Brightest and the Best. Dr. Norman Matloff, a Professor of Computer Science, in UC Davis, recently wrote a paper full of fallacies, whose main theme is that Asian students are inferior than American and Western students in Math and Science.

Lets look at some facts here. The Dept of Labor has mandated that foreign workers have to be paid more than the prevailing wage. The CIS fees for Companies over 25 workers is $2340/- each H-1B employee. Add attorneys fees to that, and the figure can reach almost $5000/- per H-1B individual. Would it make market sense then, for a Company to hire a foreign worker if American workers are available? Surely Mr. Matloff does not think that American businesses, like Cisco, Google and Microsoft, who he quoted in his article are stupid in making business decisions.

What Mr. Matloff has done to prove that Asian students are lower than European students is taken averages from those countries. Yes, Europe will have a higher average any day than China or India. That is because European countries have a homogeneous and small population, with free public education. India and China have over a billion people and of course cannot afford to educate its entire population. The same is true of states in the US. The average PSAT score which is used to compute the average for National Merit Scholarship is much higher in North Dakota than it is in CA, NY or TX. ND has a much smaller and homogeneous population than the larger states. But if you look at the population of students in the ivy leagues from the bigger states, there are more students from these states than there is from North Dakota. So the brightest and the best does not necessarily coincide with the median.

If we are to look at averages, can Mr Matloff explain why Asians have, as a group scored higher in the Math portion of the SATs? Why compared to their population in the general US society, so many Asians get accepted into the ivys? Bear in mind that Asians get neither legacy nor affirmative action in terms of admission to these ivys. My daughter just graduated from Yale University with distinction in Literature, and yes, the top scoring Science and Math student at Yale in 2008 was a student from Vietnamese origin. This is not a statistics, just a fact.

There's got to be a lot of Asian students taking Computer Science at UC Davis. Do they enroll in Mr. Matloff's class. If so, I would dearly love to know how he grades these students. With his prejudicial views, I doubt that he is a fair and impartial grader.

I-140 Portability

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

Below are some pointers to consider before you switch employers:

1. Is your I-140 approved?

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

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

2. Is the new job same and similar?

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

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

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

4. Can you port to a different Geographical location?

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

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

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

6. What’s the worst case scenario?

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

E-Verify

E Verify is a computer based program designed to ensure that employers are hiring only legal workers. The Employer signs on to a Social Security Computer based program and when new employees are going to be hired, the employer inputs their name and SS # to see whether there is a "match", ie they are indeed legal to work in the US.

This Computer based wondercomputer takes 2 days to do the match. (We have only 300 million people in the US, how large is this database?) But then again, like the Govt Employees, the Govt computers run at probably 1 megabit per second.

The mismatch rate (according to a Journal written to "debunk the myths of E Verify" has a .5% mismatch rate) . Of course this rate the lowest we will ever get. For a population of 300 million, that is 1.5 million people. Many of them will not have white skin color. Does the Government have any idea how hard it is to find a job for people of certain education and skin color? Imagine then, if after finding a job, a legal person is kicked out!

And what just ices this cake is that no one can sue the Government for such mistakes.

The Immigrant Experience

All of us are born into a country which we did not choose. We are brought up in that country. However, when we choose to immigrate into another country, we do so out of our conscious desire. It may be due to economic stability, to be able to feed our families, provide a better life for our family, or to get the fundamental freedom that is not available in our birth country. But we have to love the country of our choosing. If we did not do so, we would not have immigrated.

Yet the perception for a lot of people is that immigrants come to the US, take our social services and give nothing in return. The first white settlers came for the very same reasons, ousted the Native Americans from their land and claimed it as their own. The undocumented aliens in this country are not doing that. They work, yes without authority, but nevertheless provide an important serivice.
Despite successive generations of immigrants/settlers, America has prospered. However, if we closed off our borders in this age of globalization, we would become insular and ultimately loose our prominent place in the world.