Thanking for What?

I wish I could say Thank you for Comprehensive Immigration Reform. I wish I could say thank you to a Congress that actually cared about the people rather than their own reelection. I wish the Republicans and Democrats could work together. 

But I can't. I cant even give thanks to Mr. Obama for the new DACA law.  Why? Because most officers are asking for documents that are sometimes impossible to get. The applicants have to prove that they were in the United States from 07.  After they graduate High School, they work illegally for cash. They live with their parents. Why is it not enough that they went to school here in the United States and graduated high school? 

But the Immigrant vote is growing.  And both Republicans and Democrats need those votes to win.  

On my list:

1. Give legal status to people here illegally, (provided they have a job and clean status) so that they can pay taxes and pay for services rendered to them

2. Do away with country quotas which are remnants of Xenophobia and grant visas to people irrespective of national origin or color, equally

3 Do away with quotas for non immigrant visas and let the free market system dictate the amount

4. Standardize the granting of visas from all consulates around the globe. 

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

4 More years----We need Immigration Reform

We the people voted in Obama for a second term. In the first term many Republicans in Congress simply would not pass anything.  They wanted the President to fail.  They simply collected pay from the taxes of American people and did nothing.

Mitt Romney, in his concession speech said he would like America to come together. I don't know if this is just another Romney lie. Hopefully they will cooperate, because if not, the public will not look at them favorably in 2016.

However if they dont, Obama need to forge ahead with Immigration Reform. The Deferred action for illegal Immigrants need to become law.  So does business immigration, including entrepreneurs and investors.  And Professionals, And researchers. We build this nation by Immigrants. And to do away with restrictive country quotas for visas. 

We have again elected a black President.  The other choice was a Mormon. Its high time we give Liberty and Justice for all---whether they are gays, immigrants or different religious beliefs.

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

Getting to the end of the Green Card Process

The Labor Certification in effect certifies that no qualified Americans are there to do the job.  Provided an employer advertises and tests the job market, and cannot find an American to do the specific job, a labor is certified.  Many employers have not found anyone in the first place, therefore they employ the beneficiary.  But that is NOT the end of the road. To get the Green card (Permanent Resident Card)

However this is NOT the end of the road. The next step is I-140. here the USCIS ascertains that the Employee has the required education, experience and training. The Employer also has to have the ability to pay the employee. And often this is where the labor certification is denied and the process ends. 

There are a lot of reasons for this. Sometimes many employees want Second Preference, especially if they were born in India or China.  However the prevailing wage for that is very high, especially if one uses a Bachelor's Degree and five years experience.  The employer may not be paying the employee that much.  And many employers take deduction and do not show net profit.

The easiest and surest way to prove that the employer has the ability to pay is either the employer pay the employee the amount of prevailing wage or the employer shows more than this amount in their net profit. There are other ways too, for instance:

The employer had some unforeseen expenses like opening a new office and took Depreciation 

The employer is an established business and routinely earned a high income, however due to a particular recession (like the 2009 housing bust) they are unable to perform in a particular year. 

Note these factors are not sure bets.  The USCIS looks at the totality of circumstances.  However all these factors needs to be discussed BEFORE filing the labor certification.  It is also a good practice to get the Prevailing Wage from the Dept of Labor before advertising, so that the process can end if the employer cannot meet the wages, or the Labor can be filed under EB-3 with lower wages instead of EB-2. 

Also the Employer has to show the ability to pay from the time of the filing of the Green card until the employee gets the green card.

Also bear in mind that the ability to pay has to be shown from the year the Labor Certification is filed. So if the employer has financial difficulty in 2012, it is better to file the labor certification in 2013.  However it is completely useless to get a labor certified if the I-140 and even the I-485 is not certified. 

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

DOMA ruled Unconstitutional

Edith Windsor was in a relationship for a long time, and was married in Canada in 2009. She is 83 and lived in New York. When her spouse died the federal Government levied a tax of $363,000/- that would not be ordinarily levied on a widow.  Why? Because Edith was a lesbian, and the marriage was same sex.

The IRS looks to a State law in determining whether the person is married. New York recognized gay marriages in 2011. But the couple was married in 2009. Under the Federal Law Defense of Marriage Act (DOMA) , the word spouse is defined as a person of the opposite sex. The second circuit yesterday became the second federal court to rule that DOMA is unconstitutional. It takes away the rights of same sex couples that are inherent in heterosexual couples.

Although this case is a tax case, it has humongous impact on Immigration. Many long term same sex couples cannot get the immigration benefits from being married to their long time spouse.  They are actually penalized more heavily than even Edith Windsor.  Many times they are forced to live illegally, with no immigration benefits, but simply because of the love for their partners. If that partner dies, they cannot gain anything monetarily.

Same sex marriage is legal in 6 states and the District of Columbia. 5 more States allow Civil union. 4  States are voting on the issue in November.  Hopefully the tides will turn and we can actually become a land that guarantees "liberty and Justice for all."

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

Documentation for the Undocumented

President Obama decreed that students and those who at least graduated high school, has a clean record, and had arrived here illegally as a minor through no fault of their own would not be deported and can get temporary work permits.  The children had to have arrived before 2007,  before the age of 16, and have been present continuously present in the country and been here on June 15, 2012. This sounds good, and many people qualify.  But the problem for many kids is getting the documents.  If they were registered in school since 2007 to present, then school records should suffice.  But the problem comes in where the children graduated from high school before June 2012.

After they graduate, many children simply live with their parents.  They dont have lease, or utility bills under their name.

They work illegally for cash. Their employers dont want to say that to the government, and understandably so.  Since they deal in cash, they dont have receipts, bank accounts or credit cards.

They are generally in good health and don't visit doctors or hospitals.

Although they attend church regularly, what United States Citizenship and Immigration Office is looking for is baptism, first communion or wedding records. Just letters from pastors stating that he has seen them attend church may not be enough.

Some of the other evidence would be maybe Facebook records or phone records for texting, or maybe internet postings.  But not all children are computer savvy enough to get this from 2007. And  many may not have Facebook accounts in 2007, and many may not have kept their MySpace accounts from 2007.  Also those records must somehow establish that the children were in the United States. These children certainly did not think, let me post, "Beautiful day in Houston" in 2007, in the hope that maybe sometime in the distant future this would establish that they were living in Houston since 2007.

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

PERM Audits

Anyone who is recently filing a PERM-Labor Certification knows that the Department of Labor (DOL) is auditing a significant portion of them. I think this is in response to the financial melt down. Lehman Brothers fell in 2008 starting the financial crisis, but it takes DOL this long, (and right about the time we are going back to solvency) to institute a new policy.  Or maybe the Administration just wants to find work for its top heavy officers.  But for whatever reason, PERM audits have increased.

Those who have filed even one PERM knows that DOL is huge on form rather than substance. (After all this organization still believes in newspapers). You have to dot ever i and cross every t. So use the copy and paste function in your computer.  We draft one advertisement, and then copy and paste it for the ads, the prevailing wage, the notice, everything.

Be sure to say travel required nationally, if thats the case. And yes, you can input it in H-14.  But it is not necessary to input the Kellog magic language.  If you do, watch out for the DOL genie to come back and scrutinize if you have considered people with "suitable combination of education and experience. "

Its especially galling that DOL is asking whether the employer or employee paid for the perm. The employer already has to open their own account with the DOL and sign the attorney in. The DOL e mails the employer and asks about the filing once its done.  Why dont they have a question there asking whether the employer paid for the perm? Or in fact all the salient points. That way you save the hassle and time loss for an audit.  But then, when have Government agencies ever been paid to think.

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

Race and Immigration

The civil war abolishing slavery was won in 1865. Yet, race continued to be a factor in American society and legal system until the 1950s.  Blacks were never "equal" in the South until Brown vs. Board of Education was adjudicated in 1954. The history of Immigration law is replete with blatant discrimination against people of race, color and national origin. 

A series of acts were passed from 1882 to 1934 called as Asian Exclusion Act, aimed at excluding immigrants from China, Japan, India and Philippines.  It is actually quite funny how the court system tried to justify these exclusions.  They were of course based on nothing but color.  In Ozawa V United States (1922) the Supreme Court did not want to use the term "white" and exclude all other colors.  So they used the term "Caucasian".  However people from India are also of Caucasian descent. So Mr. Bhagat Singh Thind from India wanted to be granted Citizenship, the court was forced to use the term "white" and  exclude all other immigrants.  The court rationalized that unlike European "white" people, people from India cannot readily assimilate into the American society. 

I would love to say that was back then, and how far we have gone, but I simply cant. In 1952, the Mc Carran Walter Act abolished the Asian exclusion act, and started accepting Asians, although restricting them on an ethnic quota.  In 1965, the term "ethnic quota" was changed to "National Origin."  What that means is that if you are an  Asian born in UK you are Ok.   But if you were born in India or China, you have to wait longer than all other people.  And this despite the fact that people from India and China are generally highly educated. 

Asian Americans pay the highest taxes among all ethnic groups. They have the highest SAT scores.  Yet we have very few is any representation in all three branches of the Government. I thought our country was founded upon the principal of  "No taxation without representation."

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