Archive for October, 2012

Getting to the end of the Green card process

October 30, 2012

The Labor Certification in effect certifies that no qualified Americans are there to do the job.  Provided an employer advertises and tests the job market, and cannot find an American to do the specific job, a labor is certified.  Many employers have not found anyone in the first place, therefore they employ the beneficiary.  But that is NOT the end of the road. To get the Green card (Permanent Resident Card)

However this is NOT the end of the road. The next step is I-140. here the USCIS ascertains that the Employee has the required education, experience and training. The Employer also has to have the ability to pay the employee. And often this is where the labor certification is denied and the process ends.

There are a lot of reasons for this. Sometimes many employees want Second Preference, especially if they were born in India or China.  However the prevailing wage for that is very high, especially if one uses a Bachelor’s Degree and five years experience.  The employer may not be paying the employee that much.  And many employers take deduction and do not show net profit.

The easiest and surest way to prove that the employer has the ability to pay is either the employer pay the employee the amount of prevailing wage or the employer shows more than this amount in their net profit. There are other ways too, for instance:

The employer had some unforeseen expenses like opening a new office and took Depreciation

The employer is an established business and routinely earned a high income, however due to a particular recession (like the 2009 housing bust) they are unable to perform in a particular year.

Note these factors are not sure bets.  The USCIS looks at the totality of circumstances.  However all these factors needs to be discussed BEFORE filing the labor certification.  It is also a good practice to get the Prevailing Wage from the Dept of Labor before advertising, so that the process can end if the employer cannot meet the wages, or the Labor can be filed under EB-3 with lower wages instead of EB-2.

Also the Employer has to show the ability to pay from the time of the filing of the Green card until the employee gets the green card.

Also bear in mind that the ability to pay has to be shown from the year the Labor Certification is filed. So if the employer has financial difficulty in 2012, it is better to file the labor certification in 2013.  However it is completely useless to get a labor certified if the I-140 and even the I-485 is not certified.

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


DOMA ruled Unconstitutional

October 19, 2012

Edith Windsor was in a relationship for a long time, and was married in Canada in 2009. She is 83 and lived in New York. When her spouse died the federal Government levied a tax of $363,000/- that would not be ordinarily levied on a widow.  Why? Because Edith was a lesbian, and the marriage was same sex.

The IRS looks to a State law in determining whether the person is married. New York recognized gay marriages in 2011. But the couple was married in 2009. Under the Federal Law Defense of Marriage Act (DOMA) , the word spouse is defined as a person of the opposite sex. The second circuit yesterday became the second federal court to rule that DOMA is unconstitutional. It takes away the rights of same sex couples that are inherent in heterosexual couples.

Although this case is a tax case, it has humongous impact on Immigration. Many long term same sex couples cannot get the immigration benefits from being married to their long time spouse.  They are actually penalized more heavily than even Edith Windsor.  Many times they are forced to live illegally, with no immigration benefits, but simply because of the love for their partners. If that partner dies, they cannot gain anything monetarily.

Same sex marriage is legal in 6 states and the District of Columbia. 5 more States allow Civil union. 4  States are voting on the issue in November.  Hopefully the tides will turn and we can actually become a land that guarantees “liberty and Justice for all.”


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

Difficulty for documentation for Childhood arrivals

October 11, 2012

President Obama decreed that students and those who at least graduated high school, has a clean record, and had arrived here illegally as a minor through no fault of their own would not be deported and can get temporary work permits.  The children had to have arrived before 2007,  before the age of 16, and have been present continuously present in the country and been here on June 15, 2012. This sounds good, and many people qualify.  But the problem for many kids is getting the documents.  If they were registered in school since 2007 to present, then school records should suffice.  But the problem comes in where the children graduated from high school before June 2012.

After they graduate, many children simply live with their parents.  They dont have lease, or utility bills under their name.

They work illegally for cash. Their employers dont want to say that to the government, and understandably so.  Since they deal in cash, they dont have receipts, bank accounts or credit cards.

They are generally in good health and don’t visit doctors or hospitals.

Although they attend church regularly, what United States Citizenship and Immigration Office is looking for is baptism, first communion or wedding records. Just letters from pastors stating that he has seen them attend church may not be enough.

Some of the other evidence would be maybe Facebook records or phone records for texting, or maybe internet postings.  But not all children are computer savvy enough to get this from 2007. And  many may not have Facebook accounts in 2007, and many may not have kept their MySpace accounts from 2007.  Also those records must somehow establish that the children were in the United States. These children certainly did not think, let me post, “Beautiful day in Houston” in 2007, in the hope that maybe sometime in the distant future this would establish that they were living in Houston since 2007.


Contact Houston Immigration Lawyer, or Houston Immigration AttorneyAnnie Banerjee, for more information