Archive for February, 2010

Piece by Piece Immigration Legislation

February 25, 2010

The Republicans seem to think that a piece by piece, instead of a Comprehensive Health Care bill will be better.  I think that a piece by piece Immigration Bill, instead of a Comprehensive Immigration bill will also have a higher likelihood of passing. The American people and Congress are afraid of sweeping legislation that will change the face of this nation.  Besides, in Immigration Law, just like it is in health care, the issues are completely different for Republicans and Democrats. The Republicans are friendlier towards Employment issues, the Democrats want to legalize the illegal people.

Yet there are certain things that both party agree on, like the Dream Act, legalizing illegal American College grads. To not pass this bill unless you can have a Comprehensive Immigration bill does no good to anyone.

The best chance of a Comprehensive Immigration bill to have passed Congress, was the McCain (R)-Kennedy (late senator Ted Kennedy, D)in the Bush Administration. Even that bill died.  If it is impossible to do a complete overhaul, lets attempt it piece by piece.

Contact Houston Immigration Lawyer, or Houston Immigration Attorney Annie Banerjee, for more information

Advertisements

Jan 08 H-1B Memo Revisited

February 18, 2010

After that devastating H-1B Neufield Memo of January 08, 2010, today the USCIS had a stakeholder’s meeting for comments on that memo. (For details on this memo, please see my Jan 21 blog). Effectively this memo paralyzed certain types of H-1B cases specially the IT Consulting Services and staffing agencies. The rationale behind the memo is that these parties do not have control over their employees, and thus are not employers in the H-1B context.

The justification cited by the USCIS was that they wanted to maintain consistency of adjudications between the different service centers. After being told though that they have opened a pandora’s box and their memo might be interpreted differently.  The Service Center said that every denial will receive “supervisory review.” Lets hope that CIS “CONTROLS” these supervisors.

Congressman Morrison, who wrote the H-1B legislation specifically stated in the meeting that Congress did not intend to exclude staffing companies (and IT consulting Companies) from H-1B jobs and that this memo is wrong and will have devastating policy consequences.

Others including Crystal Williams of AILA pointed out that since both the Supreme Court cases (Darden-Clakcamas) were not on point, and this memo created new rules for employer-employee relationship that it amounted to impermissible rule making by a Governmental agency. By law, an Agency has to publish a rule and have a notice and comment period, and consider all comments before making a rule. Thus this memo should be withdrawn. Interestingly a caller even said that the Darden-Clakcamas cases refer to the EEOC manual, where the IT staffing Companies are used as examples of valid Employer-Employee relationship. Thus the CIS’ citations actually contradict their position. The caller asked whether anyone actulayy read the cases before citing them as authority.

Others made policy statements, like cutting down H-1B jobs will effectively outsource those jobs. Also prohibition of investors will hurt USA in these dire economic times.

Then there were some CIS supporters. There was a PhD from some anti immigration group who said he was a PhD in some type of radio Physics, was out of a job because employers want younger employees. Well, if H-1B was stopped, employers would still hire new grads, only they would be American grads, and those at the bottom of their classes who had no hope of getting another job.  Look at the Nobel laureate list for 2010 for USA.  All those medals would simply go to other countries.

The CIS did notice that there were numerous blogs criticizing their memo.

The question remains as to what it will take for USCIS to reverse its stance.  It took the election of a Republican senator to change the health care debate. The CIS noted that even Capital Hill is commenting about their Jan 08 memo.

This memo according to them took years to make. Even then, the policy making personnel at CIS did not read the entire Supreme Court cases. To undo this memo may take the same time. Maybe their employer, Mr. Obama, should control them tightly against such arbitrary rule making.

Contact Houston Immigration Lawyer, or Houston Immigration Attorney Annie Banerjee, for more information

Educational Equivalency for I-140

February 18, 2010

Everyone knows that the CIS is in a denying mode and will deny every Employment based petition that it possibly can. Add that to the equation that for India and China the Employment based Third Preference petitions for India is currently being processed for people who filed in July of 2001. A lot of client want to get onto the second preference category. But the requirements for EB-2 are very strict. The minimum qualification for an EB-2 job is at least a Master’s Degree or a Bachelor’s Degree plus 5 years of experience. The Experience has to be obtained after the degree is obtained and before starting the job with the sponsor. (The rationale being that if the sponsor provided the beneficiary with the experience, it can provide an Us Citizen with the same experience opportunity).

However, the CIS is extremely harsh with Indian degrees.

A three year Bachelors Degree from India is not equivalent to a Bachelor’s degree here.

A three year Bachelors degree in a general field and a one (or sometimes two year) Masters degree in a particular field from India is not equivalent to a Bachelors degree in the US

A Bachelors degree in some field and a Masters in another specific field is not equivalent to a Masters even if the time frame for both studies is 6 years.

A Four year Bachelor’s Degree and 1 year Masters is not equivalent to a Masters

The waters are more muddied by the fact that all these cases are decided on a “case by case basis.” There is no consistency between cases even in the same service center.

I realize that there are some institutions in India that are not good, but so are many institutions in the US. India has 1 billion people and the competition to get into Universities is far higher than in the US. Yet, the US looks favorably to a degree from say England, than it does to a degree from India. As they say in India, if you cannot get into IIT, apply to MIT or Harvard.

And for the record, Obama did not get into Columbia as an undergraduate in the freshman year. He transferred from Occidental College. And Bush could not have gotten into any college based on merit. Saint John’s School in Houston refused him admission as a kid.

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

USCIS Cover Up

February 3, 2010

By Law the Citizenship and Immigration Service has to adjudicate the Employment Authorization Document (EAD Card) within 90 days of filing. However in many instances they do not. When the Applicant calls the CIS, they simply make up reasons which are not plausible. Below is a list of excuses that CIS has given to my clients:

1. The case was closed because no one replied to an RFE. (Interestingly enough no one received an RFE, neither the attorney nor the Applicant) both of who has correct address in the CIS database. When we ask to reopen the case, the resulting RFE that is issued contains a laundry list of documents already submitted

2. Card returned as sent to wrong address. The Applicant does not have any problems receiving any other document or notices from the CIS and has not changed their address. Additionally the Attorney does not receive an approval notice either.

3. Officers are rude. I am copying something written to me by a client in an E mail when an USC had to call for the EAD card for her husband: “Immigrations is not fair, we pay, we file, we follow up, and when I called they weren’t going to talk with me again, and then I said that is what I was told last time, but my attorney and case worker said no that I had a right to call as the petitioner, and she still refused to help me so I ask for her supervisor and she started saying real loud, if you raise your voice again I will hang up, I never raised my voice ever and ask her what she was talking about and then she hung up, after my being on hold and transferred for about an hour, she never gave me her badge number or name, and when I called back the other girl who did help me tried to find out who she was but couldn’t. This is tiresome and they treat you like you have no rights.

There is no oversight of the USCIS. Immigrants denied the right to stay or work, are too scared to question. I suspect these officers do not want to work, and then the whole system works as a cover up.

Contact Houston Immigration Lawyer, Annie Banerjee, for more information