Archive for April, 2009

DOL’s Emphasis of Form over Matter shot down

April 22, 2009

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

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iCERT the new DOL Portal

April 17, 2009

The Department of Labor has just introduced a new spiffy internet portal called iCERT.

Employers and Attorneys have to sign on to the new portal, and cannot file new Labor Condition Application (for filing H visas) on the old system anymore after May 15.

The new portal looks great. It has everything in one site— wage determination, LCA, PERM, etc.  But most if not all attorneys and employers have a huge database of clients who they represented over the years, and that data is stored in what they call the legacy sites. The new site has a link to the old site, but data from the old site will not transfer to the new portal. Which means a lot more unnecessary work for us. Neither does data transfer from one part of the portal like wage determination into another part, like ETA 9035, the LCA form. So why then have everything under one portal?

I don’t know how much tax payer dollars went into building this new site. But I think whoever designed this just did not think and thinking is of course not part of any Governmental job.

Other minor irritations with this site is that every time you log in, a screen pops up saying  ALL data will be “monitored, intercepted, recorded, read, copied, or captured and disclosed in any manner by authorized personnel.” Yes, we know this is public record. We dont mind. But must we have to click it EVERY time! Why can they not have it only the first time.

The secret questions which you submit to DOL, the answer to which you have to recall if you should forget your password or have any problems, all deal with “your favorite…..” I  (and most users of this database) are not TWEENS.  I don’t have, Oh my God, my favorite food, my favorite movie, and of course those vampire books, and I’ll always love Zac Efron. I didn’t even know who Zac Efron was until he came on SNL last week. The DOL does not realize that the world for us has variety, and we have multiple favorites.

And yes, we cannot at present think of any other useful thing to do with tax dollars than building a new spiffy web site for the DOL.

Contact Houston Immigration Lawyer, Annie Banerjee, for more information

The Reentry Permit

April 10, 2009

The Permanent Resident Card (Green Card) is for living permanently in the United States.  If after getting the green card, you want to live for more than six months outside the United States, there is a presumption that you do not want to live permanently in the United States, and therefore have abandoned your Permanent Residency Status.

In order to preserve your Permanent Residency status, you need to file the Reentry Permit (Form I-131) BEFORE you leave the United States.  After filing you have to have a fingerprinting done, so it’s advisable to file at least 1-2 months prior to departure.  Also please include a valid reason in the cover letter as to why you are leaving.  The reentry Permit can be mailed to you or be picked up at the US Consulate near the foreign country that you are in.  Please note that if you have committed a crime or are otherwise excludable from the United States, you cannot use the reentry permit to enter the US.

The Reentry Permit is usually valid for 2 years, before which time you have to come back to the United States.  Of course you can come back and file the reentry permit again, for another two years, but you have to have a valid excuse.  Usually it is not a problem if an US business transfers you to their foreign location, or if you leave to study under any particular program of study in another country.  However if you are just working for a foreign company in their office in your home country, you probably will not get the reentry permit and have to forfeit your green card.

Please also bear in mind that using the Reentry Permit may not prolong your continuous residency requirements for your citizenship.  Therefore getting the citizenship will be delayed beyond the normal times.

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

H-1B numbers

April 9, 2009

Please note that as of today, 42,000 H-1B new cases have been filed out of the 65,000 cases. For the Master’s Cap they have received an additional 20,000 cases.  So the US Master’s Cap is almost full, but the ordinary quota remains. Please note that US Master’s Degree holders can file under the ordinary CAP.

USCIS will continue to accept cases, until they fill the quota. On the last day, when the quota is reached, they will hold a random lottery for that day only.

So good news for people who already filed, they will get in. Of course the approval is another matter.

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Contact Houston Immigration Lawyer, Annie Banerjee, for more information

H-1B Numbers

April 7, 2009

This year, like the last two years, we all filed the H-1B petitions by Fedex or Express Mail on March 31 to reach Vermont or California by April 01. Some were filed for the next five days. And we all know the number of filings were not as high this year. And then we waited, hoping praying that we will get in.

Its now April 07. And the CIS is totally silent as to the numbers. We presume that if there was to be a lottery, they would have announced it. The only thing they said was that a small number of Petitions were receipted in error. (I did not have any erroneous receipts).

We don’t know how many numbers are remaining or when the numbers will be exhausted. The USCIS has a twitter account. At the very least they could have twitted something to the effect that the H-1B numbers are not reached yet. It was hard enough for beneficiarys this year to get a job sponsor, and its not fair that they keep wondering whether they have to face the lottery or not.

And on the twitter note, I wonder when I’ll get the twit from USCIS saying that “today we are not feeling like approving any cases.” Welcome to the hip and cool Obama Administration USCIS.


Contact Houston Immigration Lawyer, Annie Banerjee, for more information