Immigration Policy and Obama

In an article published on August 3, in the New York Times, the Obama Administration, contrary to their campaign promise is pursuing the same policy as its predecessor, President Bush on Immigration Enforcement. They are increasing the I-9 audits, the E Verify program, and has introduced a program to check the immigration status of every person held for any crime.  While these policies are meant to deter illegal immigration, the potential for civil rights violation especially of Hispanic Americans in any one of these programs is very great. In any of these programs racial profiling occurs routinely.

The New York Times article quotes Senator Charles Schumer (D NY) as saying that this stance is in preparation for the immigration legislation to be introduced later in the legislature. “Democrats have to “convince the American people there will not be new waves of illegal immigrants” after an overhaul passes,” Senator Schumer told the New York Times.

While that might be the case, a significant amount of Hispanic supporters are not happy with this policy.  And Hispanics are the fastest growing segment of the American population.

Additionally, no matter what the Democrats do, the hard core republican will always perceive the democrats as soft on immigration.

Immigration enforcement should be left up to the harsh realities of the marketplace. If there is a need for foreign workers, businesses will get them. No one will cross illegally into the United States, risking life and limb, leaving behind their families, if there is no jobs in the United States for them to do. That way it satisfies the Republicans in their Laissez Faire economic policy and satisfies the Democrat’s pledge to restore the civil rights of every American which was taken away by the Bush Government.

Contact Houston Immigration Lawyer, Annie Banerjee, for more information

The New iCert LCA

This blog is not about how the DOL took something that was instantly certified, so that business could move forward, and slowed it down. Yes, there’s much to gripe about there. Our H-1B process will become much slower, but then, why should the Government aid is speeding up business? We have slowed down as a nation, we are just standing and smelling the non existent roses.

No, this blog is about DOL’s use of the English language in the Prevailing Wage section of the LCA. Bear in mind this form is to be used not by attorneys, but mostly by Employers when they move H-1B employees from one location to another.

The first question (G-7) is Agency which issued Prevailing Wage.  Most Employers just look at the Online Wage Library which is maintained by Foreign Labor Certification Data Center. This is overseen by the Department of Labor.  Agencies are little orgs inside a Department. Just because the FLC Data Center does not end with an A, an US Employer should know its not an agency, right?  I don’t see why the question asked in the previous LCA (ie What is the source of the prevailing wage?) is not adequate.  Why ask 20 questions to get to the right answer? Wait, its probably a game.

Next (G11b) is this wonderful English crafted by the PhDs at the DOL. It says:

If “OES”, and SWA/NPC did not issue prevailing wage OR “Other” in question 11,
specify source

Yeah, this means If you used OES or Other, (AND you DID not use SWA/NPC) then write down the obvious answer FLC Data Center.

Can you use a comma before AND?

This reminds me of Lynn Truss’ book Eat, Shoots and Leaves – The Zero Tolerance Approach to Punctuation. The story goes like this: A panda walks into a bar. He asks the bartender for some plant shoots and leaves and a beer. He eats, shoots the bartender with a gun and leaves. The owner looks up the definition of Panda in Wikipedia.  It says a Panda eats shoots and leaves. The difference between the two is a comma between eats and shoots.

What University gave Bill Carlson his PhD?

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

I-9 Audits

Every Employer in the US has to fill out a valid I-9 form for every employee. The form addresses whether the employee has the legal authority to work in the United States. The Employer is supposed to keep copies of documents like H-1B approval, or Green card, etc in their file, and update them as it becomes necessary. It has so far been an honor driven system, and the Citizenship and Immigration Services rarely audited them.

However the Immigration and Customs Enforcement (ICE) announced on July 01, 2009 that it will step up its audit for the employers. It has already issued 652 notices of Inspections to businesses. The Employers will have to surrender all I-9s within 3 days.  For large employers there may be many instances that the I-9 has not been updated. Small employers may not even know about the requirement to keep I-9s.

The US Government has instituted the E-verify system, where the employer has to input the Social Security numbers of their new hires into the Government computers, and they will know if the employee is legal to work.  However, if the employee used false IDs and SS Numbers, and the employers knew about it, they will not be immune, simply because E verify passed it.

Recently Krispy Kreme Doughnut Company was fined $40,000/- for I-9 valuation.

All Companies should do their own audits of their I-9 and update everything as soon as possible.

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

The Non Immigrant in this Economic Downturn

Loosing a job is never easy.  Each and every one of the 14.7 million people who lost their jobs in this economic downturn has felt the sinking feeling in their stomach, the worry of uncertainty, and the stigma of failure.  But United States citizens can survive.  Yes, its hard for an accountant to deliver pizza, but its some money as opposed to nothing.  It’s an entirely different story with the non immigrants.

Employees in non immigrant visas like H-1b and L-1 are the first to let go off by companies.  Since their visas depend on one particular employer, they cannot get any job any where.  If they are not lucky in getting another Employer sponsor within a month, they have to convert to either student status, visitor status or go back.  The Citizenship and Immigration Service is denying significant amount of visitor’s visa for laid off employees.  And the cost can be far reaching

I had a client who worked for 25 years for an oil company in Saudi Arabia and 1 year in the United States.  And then he got laid off.  He is an Indian national, and his only option is to go back to India. He has a house in the US, which he will loose money on selling.  But the real cost is that his teen age children had never studies in India and will be hopelessly lost in the Indian education system.  He will not have money to provide for private schools.

Another client was coming back to work after visiting India for his father’s death and was informed by the Customs and Border Patrol in the airport that his employer fired him and revoked his H-1B visa.  In many cases non immigrants have postponed scheduled visits to their home country for fear of being laid off.  Some women are not taking maternity leaves after their babies are born for the same reason.  Thus the human cost for a non immigrant who is laid off goes far beyond finances.

By law a non immigrant looses their status when they loose their jobs.  However, the CIS has usually given a one month grace period. That means that if you can find another job sponsor and file the H-1B within one month, the CIS seems fine with that. They of course have to submit copies of their last pay stub with this new transfer.

If not, one should consider either filing for a visitor’s visa, student’s visa or go back to their home country. A Visitor’s visa may be necessary to extend their stay to be able to settle their financial affairs here. One should file the Form I-539 and explain the situation.  They should also show sufficient resources in the United States to stay here.  Very often the Citizenship and Immigration Service is asking for proof of ticket purchase to return.  Also the reason to stay here has to be compelling.  Citizenship and Immigration Service is afraid of people staying here illegally, and thus there is a high rate of denial of these change of status applications to a visitor’s visa.

The employee can also seek admission to a school and convert to a F student status.  School benefit from foreign students and foreign students benefit from the education.  However one has to actually study.  Just registering is not sufficient.

After converting status, if one has time remaining in their H-1B status (ie, they have not used up the six years), they can go back to the H-1B status any time they find another H-1B sponsor.  They do not have to enter the crazy H-1B lottery again.  Even if they are back in their home country, they can file for the remaining period on their H-1B.  Please see December 05, 2006 memo by Michael Aytes, Acting Director of USCIS.

By filing for a conversion to the B or F visa, or by leaving the US, they actually stop the running of the 6 year H-1B clock and preserve the remaining time. So when the economy picks up again, and trust me, it will; they do not have to enter the H-1B lottery again, and simply convert or come over on the H-1B visa.

Whatever one does though, they have to be careful not to accrue illegal presence.  According to that infamous law acronymed IRAIRA, if one has a 6 month illegal presence they are barred for 3 years, and if the illegal presence is 1 year or more there is a 10 year bar.

On the plus side, there is still H-1B numbers available.  As of July 03, the Citizenship and Immigration Service received 45,000 of the 65,000 per year quota for H-1B visas.  Businesses are slow in hiring, and that is true especially of non immigrants.  So for those lucky enough to find an employer sponsor, there is no lottery unlike previous years.

Hopefully we will all emerge from this economic downturn without too much scarring.  Hopefully the US will still be looked upon as a kinder gentler nation, and will continue to draw the brightest and the best to maintain our top position in the world marketplace.

Contact Houston Immigration Lawyer, Annie Banerjee, for more information

What is a Company for Immigration?

A Company is defined as its Federal Employment Identification Number (FEIN) for Immigration issues. When a Corporation seeks to hire a foreign national under a federal Immigration Law, it stands to reason that the Company should have a FEIN in order to hire that individual.

In a recent decision, In the Matter of Ornelas Inc, The Board of Immigration Appeals verified that the Company’s yellow page listing, or business licenses does not establish a bona fide Company.

Additionally, if two related companies have two different FEIN numbers, and the alien has worked for one entity, and the other entity is sponsoring the alien, the alien can use that experience and it will not be counted as experience from the same Company. Usually the alien cannot use the experience from the same company for labor certification, with the rationale being that the company can easily employ and American and train that person as well. But if say XY has two FEIn numbers, and the alien has worked for a division of Company X, and the petitioner is Y, then that expiration can be counted, even though the two companies are in the same location.

Thus if the two related companies have two different FEIN numbers, the Labor Dept treats them as two separate companies. Does not make sense, but then, the Dept of Labor never lives in a real world.

Contact Houston Immigration Lawyer, Annie Banerjee, for more information

Naturalization Interview in the Houston District Office

In the Houston District Office this is a three step process.

First you will go with an Officer in a little cubicle and be administered the test of English and Social Science.  The exam consists of about 10 written questions from the Citizenship and Immigration Service list.  After that the Officer will test your English by asking you to read something, or write down a sentence or two.  For a copy of the list please go to http://www.visatous.com Go to Links and click on New Naturalization test.

Provided you pass the test, you will then proceed to the next step. This is the actual interview with an Officer.  The officer will go over the factual elements of the case.  These include whether you had continuous residence, physical presence and whether you have good moral character (ie not convicted of a crime).  They might also ask you whether you affirm the Oath Requirements of Section H on Page 9 of the N-400 Form.  They are:

Do you support the Constitution and form of government of the United States?
Do you understand the full Oath of Allegiance to the United States?
Are you willing to take the full Oath of Allegiance to the United States?
If the law requires it, are you willing to bear arms on behalf of the United States?
If the law requires it, are you willing to perform noncombatant services in the U.S. Armed Forces?
If the law requires it, are you willing to perform work of national importance under civilian direction?

Provided you pass the Second Step, you proceed to the third step.  The Citizenship and Immigration Service will schedule you for the oath ceremony and hand you the necessary papers for the oath ceremony.

After you take the oath, you become an US Citizen.

Contact Houston Immigration Lawyer, Annie Banerjee, for more information

Judge Sotomayor—Can anyone overcome heritage?

Mr. Obama’s nominee for Supreme Court Justice Judge Sotomayor has lived the American dream, from a poor household in the Bronx, to Suma Cum Laude Graduate in Princeton, to Yale law school. Yet there has been a lot of criticism about the fact that she said that her experiences as a hispanic will lead her to have a different world view than say a white male.  The conservatives have labeled her a racist. Yet, can we ever be race neutral? Stephen Colbert aptly points that out when he says he does not see color.

Sentient human beings believe in things, shaped by their experiences in life.   A republican may have a pro life, pro second Amendment, anti gay views. A democrat may have the opposite. yet each individual can argue and give rational explanations for their beliefs.

Yet, someone of Sotomayor’s intellectual capability can dissociate their private beliefs and look at the facts of a case. Can Scalia, Roberts or Alito ever rule for, lets say a gay couple, no matter how compelling the facts of the case are? Are they then not being prejudiced as well?

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.

DOL’s Emphasis of Form over Matter shot down

The Department of Labor, Foreign Labor Certificate Division had always been emphasizing form over matter. The Perm form (and to an extent even the LCA form) is all about form, not much about substance. You have to do things just a certain way, or you get denied. Such was the case of the Kellogg language which needed to be inserted if the employee qualified for a job in an alternative capacity. For instance, if the job is for software engineer and the employer will accept software degree holders or say MIS or any combination of that; then the PERM form should have the magic language that was mandated by a case called Kellogg. As long as the employer (or attorney) put in the magic language,”“any suitable combination of education, training or experience would be acceptable”, you are good to go. This requirement does not have to be in the advertisement, or anywhere except the PERM form. When it is apparent that the employer will accept alternatives, what good will sprinkling the magic language into the form achieve? Thankfully the Board of Labor Certification Appeals recently ruled that it would be fundamentally unfair to deny certification based solely on the fact that the employer did not sprinkle the magic language into the case.

Our legal tradition had always emphasized matter over form.  But thats not the case in immigration law where still form is emphasized over substance of a case.  Already this field of law does not attract the top law students. I think in the future immigration law (unless of course it changes)will be performed by robots.

Contact Houston Immigration Lawyer, Annie Banerjee, for more information