Retention of documents by lawyers

We lawyers compile a lot of paperwork, and this is especially true with lawyers like me dealing with the Government, in Immigration Law. The files just pile up.  The State Bar of Texas has no rules regarding file retention, and asks lawyers to adopt a best practice standard. So this is what we do:

1. We NEVER keep any original documents, we always keep copies only
2. When someone gets their permanent residency, we give them in writing that they need to pick up their files within one month  or we will shred them
3. For non immigrant cases, we keep the file beyond their expiration dates.  For example if your H-1B visa is valid until April 22, 2012, we will keep the file until at least  May 23, 2012.  By that time you would :   

• Either extended the status with their employer with another attorney
• Changed employer and no longer needs our services
• Gone back to their home country

We do keep copies of forms and petitions online in a secure server.  But they are not signed copies and they are our work product only. 

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

H-1B Employers and Dept Of Labor

I am not condoning Xcel.  Most of the things they did were pretty awful to their employees.  Yet certain things might be very hard to do:

1.  The Employer should pay the beneficiary the Labor condition application wage or a higher wage if the employer is paying another employee with similar qualifications and experience a higher wage.
2. Post the notice of the labor condition application in 2 conspicuous place, and document it.  Yes, when you are an H-1B employee we don’t grant you the right to privacy about your wages.  Although many employers hate to do this to their employees, they have to.  Also they are supposed to keep the labor condition application and the Wage Determination in a file for public inspection.
3. If the business is H-1B dependent, there are further restrictions.  Not only does the business have to attest that no US Employee was fired in order to employ that H-1B employee, but also make sure that no Us Citizen was fired at an end client location.  This can be done by e mailing the end client.  If intermediate vendors prohibit contact with end clients, the employer should at least ask the intermediate vendor to make that request hopefully in an e mail.
4. And finally the Department of Labor will pierce corporate veil to assess monetary damage on the individuals if the finances of the corporation and the individuals are not kept completely separate.

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

No Country for Battered Immigrants

The house passed HR 4970 to make Violence Against Women's Act (VAWA)  petitions for immigrant abused individual more harder to get the immigration.  Under the old VAWA law, if a relative abused an individual, then the abused individual could get immigration through that petitioner. Now they have to have a much higher burden of proof including 2 interviews, 2 adjudicators, etc.  Note that ordinarily, if that individual was not abused, immigration options were open to her.  For instance, if the US Citizen husband of an immigrant women did not abuse that women, loved her and filed a petition for her, then she would get the immigration.  However if he abused her, she would have to have 2 interviews, 2 adjudicators, etc to get the same immigration benefit.

Yes, there are some instances where women have used the law falsely to get the benefit. But those are rare. Even in normal marriages there are cases of people getting benefits without actually marrying.

What makes this all the more sad is that abuse is more common in immigrant communities  than the general American Communities. Many a times Immigrant men have grown up in a culture of subjugating women.  The women are more timid and don't complain unless it becomes unbearable. I have seen women locked inside houses, with no food, made to do horrible sex acts and yes, beaten. Very often, if they have to go back to their home country, the taboo of a divorce follows them.  They cannot marry again because no one will touch a divorced women.  With little or no education, they cannot work. They remain as a burden to their parents and brothers.

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

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