Thus the 43rd and 44th President of USA did what was fair and just despite opposition from both parties. Pres. Obama, you are my President, you always shall be.

For more information contact Banerjee& Associates 

1. The Employee applies.
2. The Citizenship and Immigration Service takes a long time to adjudicate the application
3. The Employment Authorization Document expires
4. The Employee cannot work legally after this day, and loses the job.

I have had individuals leave the country on this issue. There is no way to expedite this, and although Citizenship and Immigration Service is required, by regulation to adjudicate the card within 90 days, sometimes that does not happen.  Understandably, the Citizenship and Immigration Service is inundated by large volumes of Employment Authorization Document Extensions.  Nationals from India and China have long wait lines before they get their Green Card (Permanent Resident Card), so they need to renew their cards frequently.  The same is true for DACA, TPS etc.

This problem has been solved by the recently enacted changes to the Immigration code.  Enacted on November 18, 20165, it goes into effect on January 17, 2017, 8 CFR § 274a. 12 (c) (35-36) states that due to “compelling circumstances” Employment Authorization Document will be extended for 180 days if:

1. The individual files a request to renew his Employment Authorization Document prior to the expiration date
2. The individual is requesting an extension under the same category as before, for example DACA, I-485 pending, TPS, Dependent visas, like H-4, L-2, or J2.
3. However, the underlying status needs to be valid. This means for example if someone is divorced and does not have the H-4 or L-2 status anymore, then this provision does not apply

The receipt notice of the Employment Authorization Document serves as proof of such extension for 180 days

Hopefully the Citizenship and Immigration Service will adjudicate these cases by 180 days

Please call Banerjee & Associates for more information

For more information contact Banerjee & Associates 

The chances of getting into the lottery in 2016 is a little more than one in three. As our country grows, its needs grow resulting in more and more petitions and less chances for petitions to be selected. If an attorney prepares the H-1B file, the employer loses the attorney’s fees if they do not get into the lottery. Thus big companies like Google, Facebook, Microsoft and other Silicon Valley Billion dollar company can afford to lose money and file thousands of petitions every year. Google for instance filed 9280 petitions last year. That’s like buying 9280 lottery tickets rather than one that the small employer can afford. And although the lottery probably is random, the probability for winning it is higher if you buy more lottery tickets. And yes, we business Immigration attorneys earn a lot of money during that process as well.
The Citizenship and Immigration Service always maintained that the lottery process was fair. However, two companies in Portland Oregon—-Tenrec Inc. and Walker Macy LLC has filed a lawsuit against the Citizenship and Immigration Service to make the lottery process more transparent. A federal judge has ruled that the plaintiffs have standing to sue. What the plaintiffs’ are asking for though, is to not close the accepting of Petitions for the first 5 business days in April, but prolong it year long. That might actually be worse in creating log jams and increasing processing times for H-1B petitions. And American Immigration Lawyer’s Association has also filed a FOIA suit to make the lottery process more transparent.
Although greater transparency is desired from any Governmental organization, mere transparency will not solve the H-1B problem. The market place works on a supply and demand theory. The artificial quota system demands that employers project their need in the beginning of the year, think about the lottery and apply as many petitions as possible. Similarly highly educated tech employees in India and elsewhere seek out employers and in many cases pay them to file their cases. But doing away with the quota requires a Congressional Act, and as we all know, Congress does not act.

For more information call Banerjee& Associates.

Who have a significant ownership interest in the startup (at least 15 percent) and have an active and central role to its operations;
Whose startup was formed in the United States within the past three years; and
Whose startup has substantial and demonstrated potential for rapid business growth and job creation, as evidenced by:
Receiving significant investment of capital (at least $345,000) from certain qualified U.S. investors with established records of successful investments;
Receiving significant awards or grants (at least $100,000) from certain federal, state or local government entities; or
Partially satisfying one or both of the above criteria in addition to other reliable and compelling evidence of the startup entity’s substantial potential for rapid growth and job creation.

Under the proposed rule, entrepreneurs may be granted an initial stay of up to two years to oversee and grow their startup entity in the United States. A subsequent request for re-parole (for up to three additional years) would be considered only if the entrepreneur and the startup entity continue to provide a significant public benefit as evidenced by substantial increases in capital investment, revenue or job creation. The notice of proposed rulemaking in the Federal Register invites public comment for 45 days, after which USCIS will address the comments received.

Note:
1. The proposed rule does not take into effect immediately. It typically takes the Government quite a few months after the comment period to adopt the rule. I personally don’t think this will happen before 2017
2. The rule does not grant permanent status as of now. It just gives temporary stay of up to 5 years
3. Both the Democrats and the Republicans support this rule.
4. This would have been law, due to bipartisan support, but the Democrats wanted “Comprehensive” Reform and not the piecemeal legislation
5. Thus I expect this rule to continue no matter who our next President is.

For more information contact Annie Banerjee

H-1B is the visa classification given to Professional employees to come work in US Companies. Although all types of professions use this visa, the vast majority of these visas are used by computer consulting companies for computer professionals. The end user is the place that the computer professional will actually work. Usually these are big companies. These companies contract out their work, and sometimes the intermediary companies enter into contracts with others. Thus very often the company employing the H-1B worker has one or more intermediaries between them and the end client. The petitioning consulting companies (hereinafter petitioner) often change the employees resumes to suit a job, although the employee may not have that skill. This can be stopped if the end client can have a testing requirement to before accepting someone for the job. Initially it will be a burden to devise these tests, but then, that will ensure that their work is done in an efficient way.

But the real problem is that there is a quota of 65,000 visas per year for H-1Bs (plus 20K for those who have US Masters) and there are more than 233,000 petitions filed on the first day in 2015. So the Citizenship and Immigration Service does a random lottery and the lucky 85 K get in. Then the Citizenship and Immigration Service takes a long time to adjudicate these cases, and often it’s January of the following year that the employee can get in and start working Thus employers have to calculate their need and apply with projected rather than actual figure. Since these visas lead to Green Card (Permanent Resident Card), they are coveted by employees. Thus many employees seek employers to enter the lottery. The employees often pay money to the employers to enter the lottery, which is of course against the law. The employers then file for the H-1B lottery for these employees. By the time the employee can make it to the United States, the project that was originally applied for has already been completed.
Do H-1B employees take American jobs? Please note that the Government fees for H-1B is 1575 to 4325 USD- per individual. Add attorney’s fees to that. The Employer has to pay the employee at least the Prevailing Wage, which is often higher than local employees’ pay. And even if it’s the same wage for three years, its still the same as an American worker. But we do have computer science graduates in this country. They do not want to lead the lifestyle of the computer consultant. The computer consultant is like a travelling Computer guru, who moves from project to project. They may stay in Memphis for 6 months, followed by Iowa City for 3 mts, followed by Houston for 5 mts. You get the picture. They cannot have roots anywhere. If they have families, the family has to be positioned in some place, and they usually go back for the week end. But to make up for it, they work 12 hour days from Monday to Thursday. It’s just a hard life that Comp Sci grads from this country simply do not want.

Thus the solutions to these problems are:
1. Do away with the H-1B quota and let the market dictate need:
The market is a much better predictor of demand than an artificial quota. The quota forces employers to project their need for a whole year and file accordingly. It also creates uncertainly because of the lottery and creates artificial demand. Very often the petitioner just has one or two big project and file 20 cases, even though the need maybe 5. They hope that at least 5 people get picked. This of course leads to fraudulent practices. And there can be no guarantee which employee will be lucky enough to get in. Without the quota the optimally qualified available personnel, rather than the lucky personnel will get the job.

2. Create a system whereby the HR director of the end user has to verify the employment of the employee
The Department of Labor, to end fraud in the Labor Certification program established a system where the Company has to verify that the Labor certification is a real job that does exist in the Company. The Citizenship and Immigration service is testing an employer verification system. But they need to create a simple program whereby the system sends out an e mail asking if this job exist. The adjudication (which needs to be done fast) will proceed upon a yes answer. If the e mail is fraud, then the petitioner will be barred from using the H-1B program again, and the end user will pay a fine.

3. Do Away with Control and Simeio issues:
The Obama administration created complex and useless rules to curb H-1B fraud which do not work. In 2010, the Citizenship and Immigration Service issued a memo that said these professional employees need to be “controlled”. The Government tried to say that if the petitioner does not control the employee, then they are not the Employer. The Government then proceeded to introduce this requirement ONLY to the computer consulting industry, and not to the healthcare industry, which employ the same model. Just a simple e mail from the end user should suffice. The “control” issue goes into the business model of this industry, over which the Citizenship and Immigration Service does not have jurisdiction.

Similarly in a 2015 case, Simeio, the ruling was that if an H-1B employee changes job location, the employer has to file an H-1B petition. As mentioned above these H-1B employees change job locations very frequently. Thus the Immigration Service is inundated with the H-1B petitions. The Government is taking almost a year to adjudicate these petitions. By then the employee has moved three times, making the adjudication of two of these petitions moot and a waste of time.
These two measures are quixotic and serve no purpose other than to harass employers and make attorneys rich. In order to curb fraud, the system should be made simple, hassle free and fast to keep pace with the for profit industry. Otherwise the Immigration code will quickly grow into something like the tax code, complex and filled with loop holes.

For more information contact Houston Immigration attorney, Annie Banerjee