The 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 information

State Dinner for India

President Obama is holding a State dinner for India and this is getting a lot of media coverage in the mean stream media. This is his first State dinner. Even Fox news mentioned that GOP leader John McCain was not invited. Yes, Fox news, but Mr. Conservative Bobby Jindal (who is surprisingly very Anti Indian) is invited. Probably a State dinner for a “brown country” is incomprehensible to Fox News.

Whats important is that India is rising as a Nation, and friendship ties between India (and China) and the US will strengthen both economies.

A lot of Hollywood personalities were invited, including Stephen Spielberg. And of course AR Rahman of Jai Ho fame.

What surprises me though is that meat is not being served, but prawns are. When I left India vegetarians did not eat meat, fish or eggs. They did drink milk. And some people did eat eggs. And we have some great national meat dishes, including the Tandoori Chicken and the British National dish of Chicken tikka masala. Well, at least they were pared the tasteless, no matter how you cook it turkey.

Happy feasting Mr. Obama and Mr. Singh!

 

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

H-1B 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 information.

Lou Dobbs exits CNN

Howdy,

I am Lou Dobbs. You probably heard by now, I am forced out of CNN.

And CNN claims they lost viewership because of me. Bull shit! See how popular Rush is.
Every reasonable person with an IQ of less than 100 listens to us. We along with Sarah Palin is the new face for the Republican party. Believe me, we will take down those democrats soon. If it means that every dog and cow in this country has to vote for us, we will see to it that it does. Not like Acorn, allowing illegal immigrants to vote. The dogs and cows have to be born in America and so do their parents and grandparents.

The liberal media has just gone out of hand! And I am sure that that wetback Obama personally requested CNN to throw me out. Folks, he is waging war against me, against Fox news. We are in a dictatorship folks, we are the same as Kim Jong IL. Face it, George Bush spent his time ,( when he wasn’t hunting or sleeping,) working. Obama spends his time waging war against me. We are indeed in very dark days. And he is an illegal, holding the top job in this country!!!

When we take over America again, we will gather all the illegal immigrants and gas them. Yes, Hitler had the right idea. In fact, we should consider denying rights to non white people born in the US. They have no rights, their fathers and grandfathers were not born here.

Folks, rise up against that illegal bastard, Obama!

And keep listening to me.

Yours forever,

LOU DOBBS!

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

Health Care bill hinges on Immigration Issues

The Health care bill needs 40 democrats to vote to pass the House. According to Washington Post, 20 Hispanic democrats may not vote if the immigration language in the bill is taken out.

The Bill states that illegal immigrants cannot buy private insurance plans with their own money under the new plan.

Yes, the Obama administration is bending over backwards to pacify the anti immigrant Republicans. But these republicans, and yes, even Mr. Joe “You lie” Wilson of South Carolina have to have some amount of pragmatism.

These illegal immigrants are working here, making money. Many don’t pay taxes. And guess what, they do fall sick. So they end up at Hospital Emergencies all across the United States and then we tax payers foot the bill for them. So in essence we are giving them free health care, and will continue to do so under the Republican “You lie” health care scheme.

Come on Republicans, do you want to give these hated illegal immigrants free health care? Let them buy their own out of the money they make in America.

 

Contact Houston Immigration Lawyer, Annie Banerjee, for more information

Quotas In Immigration Law

Today’s Wall Street Journal has their main front page article on how H-1B quotas have not been used up yet and argues that the market should dictate the numbers rather than Government quotas.

Arbitrary quotas have been ruled unconstitutional by all courts in every domestic affairs except for immigration law. You cannot have quotas for segregation or desegregation, for diversity in public education. You cannot have quotas at workplace. We read in Law School that quotas inherently violate due process. But I had to throw my constitution down my office window when I started practicing immigration law.

When the colonists came to America, there was no problem, no quotas. White Anglo Saxon Protestants could simply come and work. Then as more and more Italians and Chinese came in, restrictions began to be put in from 1875 onwards. Chinese were banned because they were “Coolie labor” for lewd and immoral purposes. After World War 1, the Congress restricted immigration to 2% of their nationality already settled in America. Since there were no non white people in the US at that time, most of Asia and Africa was shut out from the US. This was done to preserve the racial mix in the United States. Since then a lot of restrictive immigration Acts establishing arbitrary quotas were enacted and still valid today. The Permanent Residency Process has quotas in both Employment based and Family Immigration. So does the H-1B program for bringing in the brightest and the best.

These quotas have risen from anti Immigration and Xenophobic attitudes prevalent in America. As the Wall Street Journal points out, why should a very bright person from say India or China come to the US to be treated as a second class citizen, at the bottom of the social ladder? They would rather stay in their own country which are emerging economies. Yet, as the WSJ articles point out, 35% of Microsoft patents were developed by immigrants, and the person who developed Google News was an H-1B from India.

Those patents will just go to India, and someday the children or grandchildren of these anti immigration forces will seek immigration to India.

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

Foreign Labor Divison should only hire ROBOTS

In a number of recent cases the DOL has proved again that it values form over matter. It has set up rigid rules and follows the rules rather than understanding the rationale behind it. Thus it runs contrary to the philosophy of Common Law, which gave birth to our legal system. By taking out reasonableness and a humane case by case approach, the labor certification process has been reduced to at best a farce, and at worst hurting both American employers and American labor force.

The rules dictate that the PERM application be filed within 180 days of the first advertisement. In Matter of Spires Restaurant, The Board Of Alien Labor Certification Appeals (BALCA) ruled that the PERM application filed 187 days later will be denied. The 180 days is meant to be a current test of the labor market, and anything more than 180 days would be considered too old. But 7 days is de minimis and penalizing an employer for just seven days is ridiculous. There should not be a hard line rule, and each application should be judged on a reasonable standard in a case by case basis.

In another case, the DOL rules that the prevailing wage request exceeded the job requirement mentioned in the PERM form. If anything, that would generate a higher Prevailing Wage. The DOL, whose job it is to see that Americans get the job before it is given to aliens, should not mind if the employer posts a higher wage than is required for the position. In The Matter of Florida Restaurant group, LLC

The last one is equally inane. In The matter of EDWARD J. TIERNEY the position was that of a DOMESTIC worker. This was a family. The DOL required a FEIN number instead of a Social Security Number. I wonder if the family of Bill Carlson has a FEIN, and if it does, what type of business do they conduct? With all his contacts at DOL, I would not be surprised.

Of course, the DOL continues to advocate publishing in major Sunday newspapers. That really is a good thing for Employers seeking to hire Aliens. No one reads those anymore, and in a matter of time, the only major newspapers will only exist in NYC and LA areas. The rest of the country will be left with community newspapers. But the DOL will not change!

We have now a ton of personnel working at Foreign Labor division of the DOL. These people will never loose their job. Why then are they doing the work that a computer system will do just as well. I say, replace them, from Bill Carlson down to the lowest level with ROBOTS. Lets use that money for health care instead.

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

What the H-1B Auditors fill out

The following is a simplified version of the instruction sheet that the H-1B Audit inspectors have to fill out:

1. Does the facility visually appear to be that of the organization? (Take pictures if possible of the building with Number of building.

Include in narrative box:
1) Description of the location:
• Commercial office unit;
• Apartment or condominium complex;
• Single family residence;
• Mail center/postal location; or
• Virtual office (a business with multiple small workstations leased to numerous entities).
indicate if any other businesses are sharing the site location and the names

2. Was an organizational representative authority present?

In cases where contact cannot be made
Inquire with neighboring businesses and/or residents to determine:
• . If the business actively engaged in business activities.
• The business’ normal hours of operations.
• It they are familiar with the benefic1ary and/or petitioner.

3. Did results of site visit suggest the presence of a legitimate organization?

Include In narrative:
1) Indicate the product  and service the company provides.
2) Number of employees.
3) Number of H1B employees that work full time.
4) Number of H1B employees that work part time.
5) Number 01 employees working on-site at this location, verses off site.
6) Number of clients the company has where their H1B employees are working.
7) Number of employees how that are non immigrant aliens.
8} Number of employees that are lawful permanent residents.
9) Length of time the organization has been in business.
10) Number of other locations the organization is located. List other locations.

4. Did the organization have knowledge of the beneficiary and the petition filed on Please note that even if the employer’s secretary has knowledge of who the beneficiary is, and the signatory of the petition is not present, the secretary should only state that, and not try and guess on answers that the Auditors are asking

5. Was the beneficiary working for the organization
behalf of the beneficiary?

Include in the narrative:
1) Whether or not the beneficiary is employed by the organization and what supporting documentation was reviewed (i.e., recent pay stubs, business cards, Employee ID).
2) If the beneficiary is not currently employed by the organization:
• Indicate where the beneficiary is currently working; and
• Why the beneficiary Is not employed by the organization.
3) The hours the beneficiary works.
• Full-time or part-time position.
4) If the beneficiary Is employed somewhere else:
• Where?
• What type of work?

6: Were you able to identify and speak to the beneficiary

7. Was the beneficiary knowledgeable, cooperative, and forthcoming with questions

8. Was the beneficiary being paid the salary as indicated?
posed?

9. Was the beneficiary performing the duties as indicated

10. Do you recommend further inquiry?

Contact Houston Immigration Lawyer, Annie Banerjee, for more information

H-1B audits 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 information.

Mojave Cross, Religion and Scalia

Dear Justice Scalia,

How can you say that the Cross is not a religious symbol? Is it really the “most common symbol of the resting place of the dead? “

How many Christian die in ratio of the addition of Muslims, Jews, Hindus, and all other religions?

You have not lived your life as a non Christian, especially in the South. When I first came into this country, I came with a commodity lacking in the US, a brain. My children were enrolled in River Oaks Baptist School in Houston, Texas.(ROBS)  There, they were probably the best students (they subsequently went on to Yale and Duke while the majority of ROBS students have IQs like Mr. G W Bush), they were severely discriminated against because of their race and religion. They were given bad evaluations, put in lower level classes, and constantly put down.

Once when we were seeing a Japanese dance, my six year old daughter commented that “mom can I paint my face white when I go to school.” When I asked why, she replied that , “then kids would play with me, and teachers will love me.”

She was told to expand on a bible verse that said that people who believe in images are like dogs.  We are Hindus.

When I went to law school at South Texas College of Law quite a few teachers thought that I was not smart because of my skin color or ethnic origin. I graduated third highest from that school. I also studied on a full academic scholarship.  Oh yes, grades were blind, profs did not know whose papers they were grading.

When I go to Court,  many judges do the same thing, look at me as if I don’t know anything.  And yes, in Texas Courts, the Judges have bibles on their desk. Its a chilling reminder to me that me and my faith are outsiders to this country.

We have to decide, whether we will be the open country for all religions, like we were when the pilgrims came, or be pro one religion, like Iran.

Look at the list of Nobel Laureates in Science in 2009. How many of them are American Citizens? All but one.  How many of them were born in America? None but one.

Justice Scalia, unless we create a tolerant society, we will loose our standing in the world. Do you really want to go back to the 50s America?

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