Archive for February, 2009

To do List for H-1B Employers

February 18, 2009

At the time of Filing:

1. SIGN AND DISPLAY LCA IN A PROMINENT PLACE FOR 10 DAYS. THE LCAs NEEDS TO BE DISPLAYED IN THE ACTUAL JOB SITE WHERE THE ALIEN IS WORKING. IF YOU ARE A CONSULTING COMPANY, PLEASE TAKE A SPECIAL NOTE OF THIS.

2. THEN PUT THE LCAs IN THE FILE, ALONG WITH THE WAGE DATA (ie THE PREVAILING WAGE DETERMINATION). PLEASE MAKE A NOTE OF WHEN AND WHERE THE LCAs HAVE BEEN POSTED IN THE FILE. THIS FILE CAN BE ACCESSED BY THE PUBLIC. ALSO PLEASE FURNISH A COPY OF THE LCA TO THE H-1B BENEFICIARY.

During the H-1Bs Employment

1. IF THE JOB LOCATION OF THE BENEFICIARY CHANGES, PLEASE FILE ANOTHER LCA AND DO THE SAME WITH THE CERTIFIED COPY AS ABOVE. YOU DO NOT NEED TO FORWARD THIS LCA TO THE USCIS.

2. IF YOU BENCH AN EMPLOYEE, YOU NEED TO PAY THAT EMPLOYEE UNLESS THE EMPLOYEE REQUESTS FOR A TIME OFF. IF AN EMPLOYEE REQUESTS FOR TIME OFF, PLEASE HAVE THE EMPLOYEE WRITE AN E MAIL OR A LETTER AND HAVE IT ON FILE

When you terminate an employee

1. PLEASE LET THE EMPLOYEE KNOW IN WRITING THAT YOU ARE TERMINATING HIM

2. PLEASE WRITE TO BOTH THE CIS AND DOL ABOUT THE TERMINATION

3. IF THE EMPLOYEE GOES BACK HOME, NEVER TO COME AGAIN, YOU WILL NEED TO PAY FOR THE EMPLOYEE’S TRAVEL BACK. (NOT THE FAMILY, JUST THE EMPLOYEE’S TRAVEL BACK).

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Contact Houston Immigration Lawyer, Annie Banerjee, for more information

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H-1B visa Fraud

February 13, 2009

On Wednesday, February 11, Immigration and Customs Enforcement arrested 11 H-1B employers in 7 states on H-1B visa fraud. These employers had produced false documents to the CIS, and violated LCA rules of filing new LCA for different locations.

The arrested individuals were primarily Indians. I hope that the Obama Government officials, in the CIS and DOS will not automatically stereotype all Indian Employers as fraud and deny legitimate visas. Lets not forget that Indians primarily come into this country to work in the software industry and has so far done a remarkable job.  As Thomas Friedman pointed out in a recent New York Times Op Ed piece, restrictionist  policies served only to make the Great Depression, Great. Restricting the bright brains from coming in from India will only enrich India,and make the US poor

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

When an H-1B looses a Job

February 11, 2009

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With the economic situation worsening, many H-1B employees are loosing their job. What should they do?

By law the H-1B status terminates the day the employee looses their job. 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. You of course have to submit copies of your last pay stub with this new transfer.

If not, you should consider either filing for a visitor’s visa or go back to your home country. A Visitor’s visa may be necessary to extend your stay to be able to settle your financial affairs here. You file the Form I-539 and explain the situation.

If you have time remaining in your H-1B (ie, you have not used up the six years), you can go back to the H-1B status any time that you find another H-1B sponsor. Even if you are back in your home country, you can file for the remaining period on your H-1B, and do not have to go back on the lottery again. Please see December 05, 2006 memo by Michael Aytes, Acting Director of USCIS.

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

However be careful, B visitor’s visa is NOT indefinite, and after about 6 months on the B visa, if you are still unable to find a job, you need to leave the US. You cannot accrue illegal presence. Also the visitor’s visa adjudication at the CIS is in a mess. They may not adjudicate the application until 7-8 months, at which time they may deny it because it has already been 6 months. However, if you intend to stay for a little longer to take care of your financial affairs, (let the kids finish the school year) that’s the best option you have.

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Contact Houston Immigration Lawyer, Annie Banerjee, for more information

EAD Delays

February 10, 2009

You filed your EAD card over 90 days ago. You still did not get the card. You cannot work. Your employer is real mad and in this economic climate is going to fire you. You call USCIS line, and the person says, “thank you for calling, we will generate a report.” You get a letter in the mail saying that “we have generated a report. And then you wait….and wait…..

Although this story sounds very familiar to an Immigration Attorney, CIS claims that the delay beyond the 90 days happen to only 1.3 % of cases. A new memo by Michael Aytes, Acting Director of USCIS, states that if your EAD card has been pending for more than 75 days, you can call the USCIS Service line at 1-800-375-5283, for a service call, and they will let the officer know of the call.

USCIS is also going to conduct sweeps to monitor and see that the EADs are issued within the 90 day period set by regulations. However that is not to say that on the 89th day you can get an RFE requesting more documents. RFEs stop the running of the clock.

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

Immigration and the Economy

February 6, 2009

Immigration in these trying times Yes, we are in an economic recession, and maybe even in a depression. And in situations like this, it is always easy to blame the immigrant workers. After all its natural to feel resentment when American workers are out of jobs. Thus there are a number of bills in the Congress seeking to restrict H-1B (the visa for professionals) numbers. But lets face the reality. 1. The Citizenship and Immigration fees for an H-1B visa is $2320/- per person. Out of that, The Government collects $1500/- per visa to “train” US people. A government doling out bail money needs to collect money somehow. 2. The Employer on the other hand would not pay such an exorbitant amount if they could find American workers to do the job. 3. The H-1B allows us to get the brightest and the best brains from other countries. If we want to get out of this recession, we would need this global brains. This is a complex global problem and needs to be addressed globally. 4. We now have a global economy and need global cooperation to solve this mess. We need global talent. If we follow the 1930s restrictionist policies, we will not be able to maintian our competitiveness in the 21st Century world. 5. Market forces rather than Government quotas work best in all situations. For example last year there were 165, 000 visa petitions filed on the first day for the 65, 000 H-1B visa numbers. Obviously, this year, that number will be far less. So we should do away with artificial quotas and let the market control employment.

Contact Houston Immigration Lawyer, Annie Banerjee for more details

Lincoln, the Lawyer

February 2, 2009

Not much is known about Lincoln as a lawyer.  But in fact, he was a busy lawyer. He, with his partners handled at least 5173 cases.  He was both a trial and appellate lawyer, though he was probably a better appellate lawyer than a trial lawyer.

In his notes for a Lecture on Law, Lincoln:

1. Discouraged litigation and looked for a peaceful solution to legal problem

2. Fee Retainers: encouraged lawyers to be reasonable and not charge abnormally.  But also do charge a retainer, because then you will feel “like you are working for something”

3. Be diligent and faithful. He acknowledged that lawyers have a “vague” reputation of being dishonest.

Above all Lincoln believed in the Rule of Law, that the legal principles that bind us together to form an orderly society. However, the rule of law has to coexist with the rule of equality to create a “liberal democracy which was the realization of a morally right political order”

Now, may be another lawyer from Illinois will merge the rule of law with the rule of equality.

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