Archive for October, 2009

Quotas In Immigration Law

October 29, 2009

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

October 22, 2009

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

October 15, 2009

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

October 8, 2009

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

October 7, 2009

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.