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.

Immigration Enforcement by Local Police

Local Law Enforcement Agents have increasingly tried to enforce immigration laws. Everywhere from Arizona to Texas, local police routinely ask to check immigration documents, and most times do not even understand what those documents mean.

A 256 page report that came out of the Police Foundation today concludes after a year long National research that Immigration Enforcement by Local Police is detrimental to the Core Mission of Local Police.

Very often the enforcement begins as a form of discrimination. For instance when a Houston Police Officer was killed by an undocumented alien, the Police Department started working actively with ICE, to hunt for illegal immigrants. I sympathize with Policeman killed in the line of duty. They are protecting us and risking their lives, and it is indeed very unfortunate. However, the Police Department cannot single out killers based on their race, national origin, color, etc. I am sure at least one Policeman in Houston was killed by a white male. Do we now work towards vilifying all white males? Of course that ridiculous.

Then there is a perception that most crimes are committed by undocumented aliens. The Report by the Police Foundation concludes that, “These perceptions, however, are not supported empirically; in fact, they are refuted by the preponderance of scientific evidence.“

The Bush Era of denigrating the US Constitution has ended. Lets return to the rule of law, where every individual has civil liberties.

Contact Houston Immigration Lawyer, Annie Banerjee for more details

Knowingly Stealing Your Identity

On May 4, 2009 the Supreme Court in an unanimous decision declared that in order to be a crime for identity theft, the person must know that he is stealing the identity of another person. Flores Figueroa V United States No. 08-108.

Mr. Ignacio Flores Figueroa entered the US illegally from Mexico and presented his employer with a false social security card, and green card bearing his name. He did not know that the numbers belonged to real persons. The Government charged him with aggravated identity theft crime. But in the US, a crime must have a mental (mens rea) component to it. For instance, if a person is insane and does not know right from wrong, and commits a murder, she cannot be held criminally liable. In order to commit a crime, a person should must have the intention to commit the crime.

The Supreme Court pointed out that in most cases proving that the user knew the identity of the person stolen is not difficult. But the documents that Flores produced had his (Flores’) name on it.  He did not know, that the number belonged to a real person in the United States.

People who had their identity stolen will obviously be outraged. But we have a long standing tradition in this country that a crime has to have a mental component. If we let this tradition slip, we will have to jail people who unintentionally commit a crime.  The State has no moral authority to take away the liberty of people for their unintentional act. Stolen identity can be restored, although this may be a painful process. But taking away the liberty of a person violates the very principle of life, liberty and the pursuit of happiness that the United States was founded upon. I applaud this unanimous decision by the Supreme Court.

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

EAD Card Delays

You had filed your Adjustment of Status Application (I-485) during the July-August  2007 rush.  Now you need to renew your EAD card.  It has been 90 days since you filed the I-765. (You can file this form 90 days before it expires). But you have heard nothing from the CIS. What can you do?

By Law the USCIS is supposed to give you the EAD card by 90 days. If 90 days has passed since the receipt of your I-765 notice, the CIS ombudsman advises you do the following:

1. CALL CIS at 1-800-375-5283 and talk to an officer. (Dont leave a message). Tell them its been 90 days and you need an interim card. Please keep records of the date and time of your call and officer number.

2. If you don’t want to call, you can make an infopass appointment and go to your local CIS office. However they do NOT issue interim cards any more.  They will inform the Service Center.

If its been a week after you do the above, and you have not heard from the CIS, you can write to the CIS ombudsman with all the details at:

cisombudsman.publicaffairs@dhs.gov

Please use this E mail for only this issue

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Contact Houston Immigration Lawyer, Annie Banerjee, for more information

Hurricane IKE

The Houston District Office of CIS will remain closed indefinitely due to damage done by hurricane IKE.
This includes the site for Naturalization and Info Pass Appointments-126 North Point Drive

and the place for Permanent Residency Interviews: 16504 Central Green Boulevard

Only two fingerprinting sites: the one on 290 and the one on Bissonnet

The one on I-45 South remains closed.

All Natz and Permanent Residency interviews will be rescheduled. Individuals having infopass appointments need to reschedule on the internet.

The tentative date for opening the office is Monday, September 29.

Below is my experience with IKE:

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Everybody worked half day on Thursday Sept 11, 2008. We were told on Wednesday that the hurricane was coming at us. I filled up my gas, and went to Sam’s Club to buy canned tuna, peaches, and water. Not a whole lot of people were hurricane shopping.

Thursday everybody was frantic. Should they leave town, should they board up? Although it was sunny and about 92 degrees outside, the human emotional pressure was very strong. I closed down at 2 p.m., simply because I could not concentrate, and took some work home. I stopped at our local grocery store on the way back. It was lucky that I did. I got one of the last loafs of bread. Everything was gone. At least 5-6 people were buying water and beer, the essentials of survival in Texas.

Friday was a great day, but Houston looked like deserted town. Everything was closed, including Wal-Mart. I swam for what probably would be the last time for this season. We made hurricane preparations, laundry, dishwasher, cleared the outside for anything that could become a flying missile. We filled out the bathtubs for water if necessary.

At about 9:30 p.m. the winds started kicking up. I went outside, but aside from the strong wind, everything was in order. By 10 p.m. the cable went out, and by 10:30 the electricity. I went off to sleep.

I got up at what was probably 1;30 am or thereafter. The wind was howling outside. I opened the back door. There was a strange light outside. It was pea green, a mixture of green and yellow. It looked like dusk, I could see everything. It was strange. It was quiet, but intense, it felt like being inside a pea soup. There was fierce wind, but hardly any rain. There was a thin mist. It was probably the eye. I went back to sleep.

When I got up next, probably about 3 or 4 am, (I cannot be exact about the times, my electric clock was not working, and my watch was on my dresser), it was pitch black. It was raining horizontal, and there was thunder and lightning.

I got up to the sound of my cell phone ringing at 8:30 or 9 am. The back yard was flooded. Our street, which never floods, had water up to the curb. No electricity. Our pool lining was down. Some shingles from our roof were down. One medium branch from the oak tree in the back was down. The whole yard was littered with leaves and twigs. Some water came in through a water socket in one master bathroom sink.

The house in front of us had their whole big oak tree on the ground, obstructing half the road.

I went to the freezer and took out the fish and scallops. Our stove, with gas worked. I cooked the fish for lunch and scallops for supper. We really had good food that day.

In the evening we went for a walk on Tanglewood Boulevard. It looked like a hurricane had blown thorough. OK, I really cannot find another simile, because it is not like a war. There was no damage to any structure, no broken windows. But the trees took the hit. They were down everywhere. Some of the traffic lights were bent. It was kind of cool to look at the underside of the big oak trees.

On Saturday night it started raining again. The streets were flooded, but not much at least in out locale.

We got back electricity at my office in Sugar land on Sunday. We got our cable and hence internet and phone connection on July 20th. But our house was another matter.

At first we had fun kind of camping. We went to a friend’s block party in West U. The devastation there seemed more. Big trees littered their narrower streets. We came back to a dark house in the evening. In the morning we cleaned trees, worked in our yard, and walked around. In the evening, we sat in the dark, listened to the radio and went to bed early. George Bush’s neighborhood, two blocks from mine, had electricity on that same Saturday night, even though they had at least one bent electric pole. That was Sept 13. We would not get our electricity until Sept 24.

The novelty soon wore away as the weather grew hotter, and the mosquitoes invaded from the open window. Additionally the street lights were a mess. The lights in all the big intersection were out, though the small ones were up and running. Traffic jams in Houston shamed those in LA, for the first time. It took me more than an hour to reach my home from work, when it normally takes 20 minutes.

Centerpoint Energy first inspected my neighborhood on Tuesday Sept 23, 11 days after IKE hit. There were only minor fuses out. They finished the work in hours. But we had to wait all this time, in the heat, in the dark. People are still waiting, while Centerpoint gets to play God.

Terminating an H-1B Employee

With the declining US Economy, many employers are laying off employees, and some of them are H-1B employees. However, unlike ordinary employees, the Employer is supposed to take certain measures, while terminating an H-1B employee.

1. NOTIFY THE EMPLOYEE: The employer is supposed to pay the H-1B employee the amount promised under the LCA., when that employee is “benched”, ie non performing employee due to lack of work. Rehiring a benched employee does NOT constitute a termination. The Employer is supposed to provide the Employee with a Notice that the Employment relationship is terminated. Oral termination may run into proof issues, so a written termination letter is advisable. Please note that if an employee takes time off voluntarily, (for instance to have a baby, or to care for a sick relative), the Employer is under no obligation to pay or to terminate during that period, if the employee joins him again.

2. NOTIFY USCIS and perhaps the DOL: The H-1B regulations state that the Employer shall notify the USCIS of terminations. The Employer should write to the Office that he filed the H-1B with and notify them of the termination. Although there is no regulations that the Employer should notify the DOL, it is advisable to do so. This is bacause under the LCA, the Employer’s liability to the Employee continues for 1 year after the termination, if the LCA is not terminated as well. Although there are no Govermnment sanctions for failure to notify, the H-1B employee can file with the DOL, who has the authority to enforce the Employer to pay back wages to the Employee
Below are the addresses of the Government Organizations:

USCIS
California Service Center
P.O. Box 10129
Laguna Niguel, CA 92607-1012

USCIS
Vermont Service Center
ATTN: I-129
75 Lower Weldon Street
St. Albans, VT 05479-0001

Department of Labor
Look at your regional office:
http://www.doleta.gov/regions/regoffices/

3. Pay for Employee’s transportation home: This only applies if the H-1B employee was to leave permanently for his home country. So if the H-1B employee decides to stay in the US and take up appointments any wharere else, the Employer does not need to pay for transportation home. The transportation has to be “reasonable.” So first class plane fair is probably not reasonable. Also, the employer does not have to pay for the H-4 beneficiaries.

The Politics of Immigration

The issue of Immigration has broad bi partisan support. But at loggerheads are two issues, business immigration and granting status to illegal immigrants. Business immigration laws restrict the number of immigrants that can come in for instance on the H-1B visa (professional visa) and employment based green cards. Tech companies like google and Microsoft are severely affected. This year google received more than 1 million application for jobs . They filed only 300 H-1B visas. 90 of those visas did not get accepted. Google has the reputation of being one of the best employers and hire the very best. In fact one of google founders, Sergey Brin, is an immigrant.

Responding to complaints by Google and Microsoft, both the house and senate has bills to increase the H-1B quotas and exclude people in Science, Technology, Engineering and Mathematics (STEM) from the quota.

But such bills are often not passed, and tend to be rejected by those law makers who believe that there is more pressing need to legalize illegal immigrants rather than do something about business immigration. Comprehensive immigration is great, but almost impossible to pass in this divided congress. Yet the champions of legalizing illegal immigrants often do not want to pass immigration reform to grant businesses more professional immigrants. Ultimately, what those Senators and Congressmen and women fail to see is that Immigration benefits us, no matter what type it is. Restricting professional immigrants just results in those professional jobs being outsources to other countries, and the US loosing its foothold in the world.

The Brighest and the Best

Anti Immigration groups like the Center for Immigration Studies charge that the foreign workers who come in to the United States are not the Brightest and the Best. Dr. Norman Matloff, a Professor of Computer Science, in UC Davis, recently wrote a paper full of fallacies, whose main theme is that Asian students are inferior than American and Western students in Math and Science.

Lets look at some facts here. The Dept of Labor has mandated that foreign workers have to be paid more than the prevailing wage. The CIS fees for Companies over 25 workers is $2340/- each H-1B employee. Add attorneys fees to that, and the figure can reach almost $5000/- per H-1B individual. Would it make market sense then, for a Company to hire a foreign worker if American workers are available? Surely Mr. Matloff does not think that American businesses, like Cisco, Google and Microsoft, who he quoted in his article are stupid in making business decisions.

What Mr. Matloff has done to prove that Asian students are lower than European students is taken averages from those countries. Yes, Europe will have a higher average any day than China or India. That is because European countries have a homogeneous and small population, with free public education. India and China have over a billion people and of course cannot afford to educate its entire population. The same is true of states in the US. The average PSAT score which is used to compute the average for National Merit Scholarship is much higher in North Dakota than it is in CA, NY or TX. ND has a much smaller and homogeneous population than the larger states. But if you look at the population of students in the ivy leagues from the bigger states, there are more students from these states than there is from North Dakota. So the brightest and the best does not necessarily coincide with the median.

If we are to look at averages, can Mr Matloff explain why Asians have, as a group scored higher in the Math portion of the SATs? Why compared to their population in the general US society, so many Asians get accepted into the ivys? Bear in mind that Asians get neither legacy nor affirmative action in terms of admission to these ivys. My daughter just graduated from Yale University with distinction in Literature, and yes, the top scoring Science and Math student at Yale in 2008 was a student from Vietnamese origin. This is not a statistics, just a fact.

There’s got to be a lot of Asian students taking Computer Science at UC Davis. Do they enroll in Mr. Matloff’s class. If so, I would dearly love to know how he grades these students. With his prejudicial views, I doubt that he is a fair and impartial grader.