H-1B vs EAD

Question: I have filed my I-485 petition and have my work and travel permit.  Do I still need to continue my H-1B?

I get asked the above question a lot.  And the answer like most things is, “it depends.” 

Since the Department of State advanced the current dates for Indian and Chinese individuals in 2007 and then EB-2 towards the end of 2011, a lot of people filed for adjustment of status (I-485).  Along with that filing they got the initial Employment Authorization Document and advance parole (travel document).  Those documents can be extended yearly until one gets the Green Card (Permanent Resident Card).  So technically one does not need the H-1B

Please note though that once you don’t extend the H after 6 years of being in H status, it disappears.  You cannot extend it anymore.  If you want to get back to the H quota, you will have to go back for one year,  then you will have to wait for the next fiscal year, and might have to get into the lottery which happens some years, including this year.  In other words its close to impossible to get back the H status if you don’t keep extending beyond 6 years.

The work and travel permits are dependent on the I-485.  This is applicable to the principal alien filing the I-485, ie the person for whom the employer filed the Labor Certification.  As long as the I-485 is valid (ie the Employer still wants to continue the process) there should be no problem.  The problem arises though when the sponsoring employer does not want to sponsor anymore. 

However if the principal alien has a new employer after 180 days of filing the I-485, that new employer can transfer the Green Card (Permanent Resident Card) process through AC-21.  The job has to be “same and similar” to the job described in the labor certificate.  In this situation, the I-485 will be valid for the principal and the dependent aliens as well.

If it happens to be a job in a completely different area, the new employer can start a whole new process of PERM- Labor Certification.  The principal alien will still get the old Priority Date, but in this case the I-485 will no longer be valid. And if the principal and dependent aliens don’t have a valid H-1B visa, they cannot do this.

The bottom line: The H-1B visa provides a second layer of security and should be extended if cost is not a consideration.  However if cost is a factor, one needs to do a cost-benefit analysis. 

Contact Houston Immigration Lawyer, or Houston Immigration Attorney Annie Banerjee, for more information

Travel on H-1B

Please note that this is advisory ONLY.  Anytime you travel, whether you are let in is purely up to the discretion of the CBP officer at your port of entry.  H-1B visa stamping is difficult in India, especially for smaller software companies.  However if you are not a US Master’s Degree holder and this is your first H-1B stamping, and you are originally from India, you have to go to India for stamping.  

There is no way to predict when your regular processing H-1B will be adjudicated.  Premium is a safer bet, however upgrading it to premium sometimes incurs a Request for Evidence.

You are a US Master’s student on OPT, and you want to travel.  Your H-1B got accepted.  Can you travel in June and come back in July?

If you look at your OPT, it says not valid for travel.  So its good to have your student’s visa valid in your passport as well.  Also definitely have your H-1B on premium and approved when you go.  Have a letter from your employer that they are employing you currently on your OPT and intent to employ you on your H-1B, and recent pay stubs. .  However there is always a possibility that CBP Officer may want the H-1B visa stamped, especially if this is closer in date to October 01.  If you return after October 01, obviously you have to have the H-1B visa stamped on your passport.

You are on H-4 or L-1, applied for change of status to H-1B.  Your application got accepted. Now you want to go out of the US?

If there is a pending application with the Citizenship and Immigration Service, the CBP officers will usually not allow you to enter back.  Also, if the officer adjudicating your H-1B case finds out that you are not in the United States, then she will not give the change or extension of status.  Thus have the H-1B approval before going abroad.  However the above principles of not being let in, esp nearer to October applies.  And sometimes officers are less forgiving to people who do not have US Master’s Degree. 

On another note some L-1s try to file for H-1B just to get the quota, and want to maintain their L-1 status even after October 01.  In that case, if the applicant enters after October 01, on his L-1 status, and the I-94 clearly proves it, then yes, L-1 status is maintained.  The applicant has to file another change of status application or get the H-1B visa stamped though before he starts work on H-1B.

You are on H-1B and have applied for extension or transfer and want to go out?

The officers will not extend status if you are not physically present in the US.  So if travel is urgent, then either upgrade to Premium, or be prepared to get the visa stamped before coming in.  If you go out after the approval, if you already have a valid H-1B visa stamped in your passport, you can come in with that, even though you filed for a change of employer, and your new employer’s name is on the I-797 approval form. 

Contact Houston Immigration Lawyer, or Houston Immigration Attorney Annie Banerjee, for more information.

The Unnatural H-1B quota

Our laws impose the completely unnatural, unrealistic, uncapitalistic quota of 65,000 (plus 20,000 for US Master's Degree holder) visas for H-1B, a visa reserved for professional skilled personnel.  Since the government year starts on October 01, and they accept visa applications 6 months before, the first day one can file the petition is April 01.  The job actually starts from October 01.

From  2006 to 2008 more than that amount was filed with the USCIS on the first day. The government resorted to a lottery.  Then came the economic downturn and the visa filings were slow.  Now again, as the service centers start counting the visas today, its expected to at least reach or exceed the quota this year.  This means that the economy looks better.

The counting starts today, on the day that the job records came out with a bleak report that hiring has slowed down in the USA. I am sure that the anti business immigration folks will scream about job preservation. Yet, the jobs lost in the US are federal government jobs and retail jobs partly seasonal and partly due to the sequestration. None of these jobs are tech jobs. If America idolized colleges for their US News and World Report rankings rather than the NCAA rankings, we would not face a shortage of tech  personnel.

However another major problem is the quota itself.  Computer consulting companies are the main users of the H-1B visas. They have to predict their usage for the year.  Once the quotas are gone, they cannot get labor to supply their clients, and have to take a major hit.

The other reason is that the educated spouses of H-1B holders, (on H-4 visas) cannot work. Dependents of L or J visas can.  But for some completely inane reason, dependents of H visas cannot work. So these H-4 visa holders approach Consulting companies for jobs. Consulting jobs are hard.  Not only do you have to know computer science, you also have to travel places with the job. Americans simply wont work that hard or travel that much.

Thus we should do away with this unnatural quota. Let the marketplace dictate needs. Yet the Obama Government simply will not handle immigration piecemeal. They want those Hispanic votes and wont do anything for the country until they get those votes.

Contact Houston Immigration Lawyer, or Houston Immigration Attorney Annie Banerjee, for more information

H-1B

Its about that time of the year when the Government will start accepting cap subject H-1B petitions for the Fiscal year 2013, which starts on October 01, 2012. The Obama Administration promised to Silicon Valley recently that they would ease the immigration laws for High Tech graduates.  Yet for small computer consulting companies, the outlook seems bleak.

Computer Consulting Companies specialize in recruiting and placing consultants in bigger companies. Many times one consulting company has contract with another who then in turn has a contract with a big company. This is the nature of their business.  In 2010, the Government in a memo created a new law that the employers should have "Direct control" over their employees. The Government then said that where there are intermediates between the employer and the end user of the employee, the employer does not have control.  The government requires a huge amount of proof and often letters from the end user saying that they don't control the employee. The end users often refuses to bother with such things. After all, if they wanted the hassle of an employee-employer relationship, they would recruit themselves.

The burden on small consulting companies is onerous.  In a recent memo, the Government has said that they don't require any particular type of document, including letters from the end user, but the companies have to prove by a preponderance of evidence that they control the employee. And the Government of course gets to decide whether there is preponderance of evidence. This is like the fox guarding the hen house.  Also very often contracts are given for a short duration, and is thereby extended. But letters from the end user that the contract may be extended is not enough. The Government will make the duration of the H-1B for a few months for the duration of the contract. Then the petitioner has to file again.

If the Government denies an H-1, the beneficiary has to leave the country. An appeal takes forever and is simply not cost efficient for the Petitioner to do.  So the government gets away with whatever they want. So very few of these cases make it to the Judiciary.  In a recent case, Residential Financial Corporation, 2:12-cv00008, the Government challenged whether the Court has jurisdiction since the plaintiff did not ask specifically to get the beneficiary back. The federal Court (Southern District of Ohio) said that the Government did not provide the Employer and employee , "A Bare minimum level of professionalism, diligence and reasoning."


And that is how the H-1B petitions are being adjudicated. Of course getting the visa form a consulate in India is harder and more capricious, but that will take pages and another blog.

Contact Houston Immigration Lawyer, or Houston Immigration Attorney Annie Banerjee, for more information

Policy vs Practice

A few days ago, the Director of United States Citizenship and Immigration Service, Mr. Mayorkas said that the United States Citizenship and Immigration Service (USCIS) would make the process for foreign born tech start up companies' immigration easier with the highly touted "Entrepreneur in Residence" Program. The goal he said was to keep foreign born entrepreneurs in the US. Everyone applauded, but it takes years to introduce a new program.  Meanwhile, the existing visas are not available for tech start ups. A start up cannot have H-1B visas, especially is the beneficiary owns part of the business. Bill Gates, if he was an immigrant, would not be able to get an H-1B visa, or a Green Card from Microsoft because (a) He didn't have a "Computer Science Degree", (b) He owned Microsoft, and (c) Microsoft as a start up would not have the 'ability to pay' Gates. Same is true for Sergey Brin and google, although Brin did have a Comp Sci degree., or Zuckerberg and Face Book.

If the Government wants to make it easier for Computer Science Graduates from US Universities, it certainly does not look so. Since January 2010, the CIS issued a memo, which introduced an element stating that Employers should have direct control over H-1B employees. That effectively killed the H-1B visa for Computer Consulting industry.

And recently, the Department of Labor has taken to auditing a lot of labor certifications (PERMS) . I can understand the auditing of Perms for jobs not requiring a highly skilled degree. But these audits are done in random and effects everybody.  So we have one hand of the Government stating that we need to keep our tech graduates, and the other hand doing everything to make it harder for them. Maybe someday the Government will work as a cohesive unit.


ContactHouston Immigration Lawyer, or Houston Immigration Attorney Annie Banerjee, for more information

Deemed Export Control

Although Export Control can apply to goods, Deemed Export applies to Technology. This blog will only deal with Deemed Export.
Certain technology is controlled by our Government and restricted for importing to other countries. The Commerce and State Departments issue licenses for such exports. This rule has long been in the books, but was not really enforced. Suddenly in December of 2010, the new I-129 form came in, and the form included questions about deemed export for H-1B, H1B1,L-1 and O-1A.
The employer has to first ascertain what the beneficiary’s citizenship country is. (Not country of birth) Particularly countries like Iran, Iraq, Lybia, China are suspect. Then ascertain what technology or technological data the beneficiary has access to. If the employer needs a license from the Department of commerce/State to export that technology to that person’s country, then the employer has to first get the license before filing the H-1B, or deny access to the person until such license is obtained. This process can take about 6 months.
For large high speed Computers Systems, usually source code is controlled, not object code. Also sophisticated networking systems and encryptions are usually controlled.
There are two types of Deemed Export regulations: the Export Administration Regulations administered by the Department of Commerce, (EAR) and the International Traffic in Arms Regulations, (ITAR) administered by the Department of State. More information on these can be found at:
http://www.bis.doc.gov/licensing/exportingbasics.htm


EAR typically deals with high speed computers, semi conductors, telecommunications, and technology dealing with manufacturing equipment. ITAR deals with technology which has space or military applications.
To get the license for nationals from countries like Iran, Iraq, Syria, China and Libya is very difficult, especially for ITAR
The penalties for violation of this law is severe. And ICE will audit employers. Civil penalties range is either $250,000 or twice the gain from the particular technology. Criminal penalties range from up to 1 million USD, and up to 20 years prison term.
There is of course no prior evidence that anyone on H-1B ever exported any technology back home. But, Immigration is fast becoming a huge cash cow for the Government. We love to hate immigrants, and make employers who hire immigrants pay severe penalties. And in the process we will lose our competitive edge to other countries.

For more information contact Houston Immigration Lawyer or Houston Immigration Attorney, Annie Banerjee

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

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

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

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

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

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

H-1B and the CIS

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

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

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

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

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

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

4. The work itinerary is attached.

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

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

Contact Houston Immigration Lawyer, Annie Banerjee for more details

H-1B site raids revisited

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

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

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

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

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

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

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

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

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

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

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

Contact Houston Immigration Lawyer, Annie Banerjee for more details

H-1B raids increase

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

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

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

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

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

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

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

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

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

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

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

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

Contact Houston Immigration Lawyer, Annie Banerjee for more details

The Non Immigrant in this economic downturn

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

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

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

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


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

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

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

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

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

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

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

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

Contact Houston Immigration Lawyer, Annie Banerjee for more details

H-1B Numbers

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

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

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

Contact Houston Immigration Lawyer, Annie Banerjee for more details

H-1B numbers

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

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

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

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

Contact Houston Immigration Lawyer, Annie Banerjee for more details

My Predictions for NEW H-1B this year

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

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

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

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

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

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

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

Contact Houston Immigration Lawyer, Annie Banerjee for more details

To do List for H-1b employer

At the time of Filing:

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

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



During the H-1Bs Employment

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

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

When you terminate an employee

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

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

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


Contact Houston Immigration Lawyer, Annie Banerjee for more details