Archive for July, 2010

Xenophobia and Immigration in Arizona

July 30, 2010

At the heart of any Immigration Law in any country is Xenophobia. No matter how you look at it, its one group, who established themselves in a place trying to keep others out. Even if this means handing a carrot to any group, its still based on the idea that a certain group of people have sovereign rights to a certain place. And it is this territorial and supremacist ideas that lead to acts of war and terrorism. Imagine if Al-Qaeda did not care if other people were different from them.

In passing SB 1070, Gov. Jan Brewer and other Fox news types, tried to justify their Xenophobia by saying that since the federal government wont do anything about immigration, their state will take it on. Probably they thought that restricting immigration will mean more jobs for their citizen. Yet, sadly its the Republican’s philosophy (which I think is correct) that the economy should not be manipulated by the Government. Laissez Faire and Capitalism were hardly swear words to Republicans.

Any employer, whether they are individuals wanting their lawns cut, or construction companies, or restaurants, will hire legal immigrants if the legal immigrants do a good job at a right price.  But they cant find one. American workers would rather sit on their a** and collect food stamps than work in difficult jobs. And if they do work, they will charge phenomenal amounts. I will not pay more to my grass cutter than to my doctor, simply because grass cutting does not require the same level of knowledge as cutting the heart.

Of course hiding under this SB-1070 is the fact that this will give the likes of Sarah Palin the license to go “hunting” in Arizona.

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

Extraordinary Ability

July 22, 2010

The Administrative Appeals Office (AAO) ruled in a recent case that first authorship in articles are not always necessary to establish Extraordinary Ability. The alien had a lot of papers published and “hundreds of citations.” However not all papers were first authorship. The Texas Service Center refused to consider those papers.

The AAO wrote:”As modern scientific research endeavors routinely involve collaborative efforts, we find no statutory, regulatory, precedential, or evidentiary basis to conclude that USCIS should not assign weight to collaborative scientific research such as the petitioner’s. It could be argued that the director was simply seeking stronger evidence of the petitioner’s prominent role in his research studies. However, statements from the petitioner’s first-author collaborators submitted on appeal
confirm that he played an integral role in their jointly published research.

Of course, the alien has to have the three criteria out of ten enumerated in the Statute.

The Texas Service Center is out of touch with reality. They had asked me to PROVE that breast cencer research is “National in Scope” for a National Interest Waiver case.

Mr. Roark, I suggest a field trip for your officers. UT Southwestern Medical School, which has four nobel laureates and does tons of research is just a hop skip and jump away from your Stemmons Freeway location. These Officers should probably go and check out how exactly research is done. Also adjudicating officers dealing with “research” based petition should complete an undergraduate degree with some amount of research in College. And maybe a BSC degree will help adjudicators judging Science based petitions, rather than say a major in dance. Where do these officers go to College anyways?

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

Obama, Transparency and Rule of Law in H-1B

July 22, 2010

The Obama Government ran on a promise to make Government more transparent, more accountable and promised to restore the Rule of Law so blatantly flouted by the previous administration. Yet,  in most immigration cases, and certainly in the H-1B context, all those principles are simply baseless and unfulfilled campaign promises.

AILA has just filed a lawsuit against USCIS on the issue of transparency. The administration beginning last summer conducted  hundreds of raids on H-1B sponsoring businesses. Yet the rules and guidance of this whole process is guarded in secrecy. Requests by AILA to divulge this review process under the Freedom of Information Act were denied.

These are PROFESSIONAL employees— Computer professionals, Engineers, Doctors, teachers. The Government shows up at their Company door step, demand to see their records, with no notice, and many times with no uniform procedure. The Officers ask to see anything and everything. The businesses are all sizes, but all professional service providers.

In a separate class action lawsuit the USCIS is being challenged on the January 08, 2010 memo,  which “created” additional requirements in respect of direct control of employee by the employer.  This has virtually eliminated the computer consulting business from sponsoring H-1B visa holders. This requirement was no where in the plain language of the H-1B law.  Also the the senator who introduced the H-1B legislation  in the Congress  verified that this was Never Congressional intent.  Moreover an agency cannot rulemake without  publishing a notice and giving the public a chance to comment. No such notice and comment was done for this memo. This clearly violates the Rule of Law that Obama championed. In terms of immigration law the old Government’s policies are not only being followed, but in many instances further deviating from the Rule of Law.

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

Immigration Fee Waivers

July 20, 2010

The fees for most CIS applications are astronomical. For instance the fee for N-400 to become a US Citizen is $675/- The fee for adjusting status to become a permanent resident is $1010/- Many people simply cannot afford that.  However previously there were no forms and no guidelines to filing anything without fees with the CIS. If anyone filed a form and could not afford a fee, they had to write a letter.  But the mailroom personnel at CIS either does not read or perhaps cannot read. So the form used to be returned asking us to send the check. You could go back and forth and in the mean time loose time or even status.

Even more egregious were fees paid due to CIS’ mistake. For instance if the CIS in clear cut error denied your case, you had to file a motion to reopen for $585/-  We even had a case once where the CIS collected a fee for a I-765 (EAD) filing for $340/- and lost the file.  When we traced and send them the check, the reply was that my bank should ask for the money back.  My bank, Bank of America, did not know how to. So we simply paid again and refiled.

Now the CIS is proposing a form: I-912 which will establish clear guidelines for fee waivers. Hopefully the form in its approved version will have no fee requirements for CIS’ mistakes along with applications for applicants below the poverty level.

Don’t just start spending the money that you were saving for the CIS fees yet though. Sometimes these forms take years to come to fruition. As for me, I will believe it when I ultimately see it.

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

How to establish control under the Jan 08 memo

July 16, 2010

There are only 65,000 visas given for regular H-1Bs and 20,000 for holders of US Master’s Degree.  As of July 09, only 24,800 regular petitions were filed and 10,600 US Master’s petition were filed. The reason for this slow filing is two fold.

Heading into a deeper recession, the economy is definitely a factor. Unlike what most people think, Companies would rather hire US workers, and not pay the $2320/- filing fees plus attorney’s fees.

However there are some professions which have a shortage in the US. That is true of computer professionals. But the computer professional market has been bruised by a poorly conceived and legally impermissible memo that CIS promulgated on January 08, 2010. The CIS is their infinite wisdom deemed that professionals need to be “controlled” directly by the petitioning company.

The IT business typically have contracts that go through tiers— from the petitioning company to the end user. The CIS thinks that this creates “job shop” a four letter word to them.

The Jan 08 memo is startling in how unconstitutional it is—- how it totally disregards the rule of law. The class action lawsuit against it will hopefully see the end of the memo. Meanwhile software companies are outsourcing their business elsewhere.

However if there is a contract using an intermediary, control can be shown if another employee of the same H-1B employer works for the end user and actually supervises the H-1B beneficiary.

For instance if Company A, the H-1B employer has a contract with Company F and Company F has a contract with the end user, Company Bigshot.  If Company A has employee X who works for Big Shot too, who supervises employee Y, who is the beneficiary, then control can be established under the January 08 memo. Of course all companies have to provide a ton of document to prove the case.

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

Arizona and the Justice Department

July 7, 2010

The justice Department’s suit to block the restrictive law in Arizona is heralded by everyone as an “immigration issue.” Both Wall Street Journal and New York Times have huge headings under “Immigration Law.”  But the question is not about immigration law. It is about the fundamental human right to not be judged by the color of our skin.

The proponents of the bill, like Arizona state Sen. Russell Pearce say that the bill “prohibits racial profiling.” But I wonder if every individual is stopped and asked for their passports. The will cripple business in the State. Will everyone, ie white, black, brown, yellow,  and whatever other color or look need to take their passports, birth certificates, etc to Arizona?

I naturalized into this country and is in the highest tax bracket. I work and pay taxes. Yet I am brown and have an accent. As a practitioner of immigration law, I know say for instance white Canadian who are here, in the US, working illegally, but are white and except for a slight “oot and aboot” has no other accent. Who will the Arizona police “catch”?

The lawsuit is also about separate state and federal rights. The Conservative Supreme Court will champion State rights, but it will remain to be seen whether they champion Separation of Powers. My guess is that their judgment will be clouded by the more emotional issue of immigration.

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