Eb-2 for India and China

In the June Visa Bulletin, the Eb-2 category for India and China are unavailable. The Department of State (DOS) thinks that it will remain unavailable for the rest of the fiscal year., ie until September 30, 2012.  This means that if someone born in India or China and has an Eb-2 petition with a priority date of  say 2001, they still cannot file for I-485 Adjustment of status.  They hope to restore the numbers to 2010, but this wont happen until at least the spring of 2013.

The reason that the DOS gives for this unavailability is that a very large number of people from India and China are converting from EB-3 to EB-2. Many of them had a Bachelor's Degree, but did not have the requisite 5 years experience when they filed.  They now do. Some individuals are also getting Master's Degree.  When you change or file another petition, you retain the old priority date. The current priority date for Eb-3 for India is September 15, 2002.  These people have been waiting for 10 years before they get their Permanent Residency. Yet, all this time, they have been living and working in the US with their H-1B visas. The job clearly exist for them.  Yet they have to wait and be punished simply because they were born in large countries which value education.

These people do have job, and will ultimately (hopefully in their lifetime) get the Permanent Residency.  They are on valid visas and pay their taxes.  They perform valuable service to the US, those technical jobs we do not graduate  enough people.  Yet farmers with political science and useless liberal arts degrees like Senator Grassley want to restrict these law abiding people from becoming United States' resident.  Senator, if the United States could perform solely with liberal arts degrees like you have, we would be the bottom nation of this world.  We would become like your home state, Iowa, good for producing corn only.

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

PERM and Form over Matter

The filing of a labor certification is like a game. It has all these utterly inconsequential rules. And if you don't dot your I s and cross your T s, it gets denied. This is totally contrary to our doctrine of substance over matter.  This common law doctrine has been in our legal system since ages, but of course, that would require thinking, something that Department of Labor (DOL) employees are not required to do.

And the Board of Alien Labor Certification (BALCA)  over the years has upheld some and denied some of those rules. BALCA has said that if you advertise on a Sunday and by mistake put down a Monday date, that is fine. The court has said its not required to put in "magic language" if you want alternative qualifications. Now the case, World Agape Mission Church has done away with 2 other inane requirements.


The Employer had advertised in the website of the State Workforce Agency. (SWA) But did not have the documentation to prove that during the audit. The Board of Alien Labor Certification (Balca) said that the regulations does not require the Employer to keep such documentation. Most SWAs have crappy websites. I wonder which American would go looking for a job in the SWA database rather than going to Monster or other such engines.

The Employer also does not need to print its name if they advertise in Private Employment Firm.

Other inane requirements still in force: advertise in Sunday newspaper. This is DOL's way of preserving this dinosaur we have called newspapers.  At the rate that newspapers are closing, and at the rate that DOL changes their regulations, the DOL will have that regulations at least 2 years after the last newspaper closes.

 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

Where in the Melting Pot does Jeremy Lin fit?

 America had, I think wisely adopted the melting pot method.  No matter where we originate from, we are all Americans, one nation, one people.  This is very different from countries like Canada and England where they have the cultural mosaic theory, where each individual maintains their own cultural identity. We are all supposed to be one people on America. Yet, minorities who look foreign, are seldom recognized as American. And the same is the case with Jeremy Lee. He can technically become a President, yet in the US he is looked upon as an Asian American, and in China (note his parents are from Taiwan) he is looked upon as Chinese.

There are plenty of good blogs, claiming what a wonderful Asian player he is. But it is inherently stereotyping that is going on here. To claim that he is a wonderful Asian player, is to say the same thing of a black mathematician. Jeremy Lin is a good player. PERIOD. What does it matter if he is Asian, or black or white? Or whether his parents came over as immigrant or his ancestors landed on the Mayflower?

Even David Leopold, the ex president of  American Immigration Lawyer's Association wrote a blog on Huffington Post stating that if the anti immigration restrictionists had their way, Jeremy Lin would not be here. http://ailaleadershipblog.org/2012/02/19/immigration-linsanity/  So he too sees Lin as an Asian American rather than just American.  Yet Steve Nash is Canadian/South African, and no one claims that has the restrictionists had there way, he would not be here? Or Dirk Nowitzki? Because they look like "Americans?"

My children, like Jeremy Lin, were born in the US. People ask them where they are from. They say , "Houston." Yet very often, people ask, "where are you originally from?" No one asks a white person, if they are from UK, or Ireland. We as Americans can ask if they are from New York or Texas. But asking someone who does not identify with the "mother country" where they are from is just plain Un-American.

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

Advancing Priority Dates and Marriage

As most people now know, the Priority dates of Second Preference for India and China are advancing rapidly, and many people with Priority dates in 2010 can file their I-485s.  This has presented a small but important problem for Indian beneficiaries. Many of them are young , unmarried and will get married through the traditional  arranged marriage system.  Under the traditional Indian system mixing between girls and boys are frowned upon. Usually the families pick out several  'suitable mates", the prospective bride and groom talk to each other, decide as to who to marry, and if both parties are willing, they get married.

With their child in America, working on the H-1B visa, and many of them not visiting India because of the highest rates of H-1B visa denials from the consulates in India, many parents were reluctant to start looking for a suitable mate for their children. Yet the looming prospect of getting their Green cards fast has produced a rush.

This is because almost every immigrant visas in the United States depend on per country quotas.  And the wait for  a green card holder from India to bring in their spouse is currently almost three years.  That means that once the beneficiary gets the green card,  and before they become a citizen, (in 5 years)  if they marry, they cannot bring in their spouse for 3 years. This of course creates a lot of strain especially in an arranged marriage situation for the newly weds.

If they have their H-1B , they have to go to India, get their visas (a huge If in Indian consulates) get their spouses an H-4 visa and come back and file for adjustment of status for their spouse. Deciding to marry one person from the list given to them by their parents in a hurry can be harrowing.

If they don't get the H1B visa, the beneficiary can travel back with the travel permit, wait and get their Green card and then file a following to join petition. In this situation, the green card holder can file a following to join application, once he gets the Green card, but cannot travel during the process.  This is also not easy.

Unfortunately such is the price of US Immigration.


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

Kansas tires to introduce legislation to authorize illegal immigrants to work

A traditionally conservative group of Business Association consisting of  Chamber of Commerce, the Farm Bureau , various building and manufacturing firms and Agricultural industry is trying to get the Kansas legislature to introduce a bill making it possible for undocumented (yes, illegal) workers to work there legally.  They claim that the shortage of labor in various industry has had devastating consequences in States that enacted strict legislation for excluding undocumented immigrants. For instance in Georgia, 50% of the produce has not been picked loosing the State $4.2 million and would rise to $20 Bn, if all undocumented immigrants left Georgia. They also state that deporting even a third of undocumented aliens will cost US $80 billion. 

The immigrants do work that US workers simply will not do. Even Arizona, an early proponent of anti immigration legislation is backing off due to the terrible economic loss that the State has been hit with. 

The Kansas bill would require certain illegal immigrants with clean record stay in Kansas for 5 years. 

What's interesting about this legislation is that its been promulgated by Republicans. Unfortunately the Republican party has two factions, the social conservatives and the fiscal conservatives. The social conservatives (consisting of mostly white and racist people) have pegged their hatred about the mostly brown (Mexican) illegal immigrants on grounds that these people are here illegally. The fiscal conservative group is seeing the devastating economic consequences of these hard line bills and not liking them. It will be interesting to see who wins. 

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