Archive for May, 2013

H-1B vs EAD

May 30, 2013

Question: I have filed my I-485 petition and have my work and travel permit.  Do I still need to continue my H-1B?

 

I get asked the above question a lot.  And the answer like most things is, “it depends.”

 

Since the Department of State advanced the current dates for Indian and Chinese individuals in 2007 and then EB-2 towards the end of 2011, a lot of people filed for adjustment of status (I-485).  Along with that filing they got the initial Employment Authorization Document and advance parole (travel document).  Those documents can be extended yearly until one gets the Green Card (Permanent Resident Card).  So technically one does not need the H-1B

Please note though that once you don’t extend the H after 6 years of being in H status, it disappears.  You cannot extend it anymore.  If you want to get back to the H quota, you will have to go back for one year,  then you will have to wait for the next fiscal year, and might have to get into the lottery which happens some years, including this year.  In other words its close to impossible to get back the H status if you don’t keep extending beyond 6 years.

The work and travel permits are dependent on the I-485.  This is applicable to the principal alien filing the I-485, ie the person for whom the employer filed the Labor Certification.  As long as the I-485 is valid (ie the Employer still wants to continue the process) there should be no problem.  The problem arises though when the sponsoring employer does not want to sponsor anymore.

 

However if the principal alien has a new employer after 180 days of filing the I-485, that new employer can transfer the Green Card (Permanent Resident Card) process through AC-21.  The job has to be “same and similar” to the job described in the labor certificate.  In this situation, the I-485 will be valid for the principal and the dependent aliens as well.

 

If it happens to be a job in a completely different area, the new employer can start a whole new process of PERM- Labor Certification.  The principal alien will still get the old Priority Date, but in this case the I-485 will no longer be valid. And if the principal and dependent aliens don’t have a valid H-1B visa, they cannot do this.

 

The bottom line: The H-1B visa provides a second layer of security and should be extended if cost is not a consideration.  However if cost is a factor, one needs to do a cost-benefit analysis.

 

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

When lawyers try to bribe

May 24, 2013

Why does it always have to be Indian lawyers? Usually lawyers who are foreign graduates, and usually Indians.

They try to bribe Immigration officers. Just like they did in India.

Kiran Diwan, an attorney from the Law office of Dewan in Maryland recently got indicted on charges that he tried to bribe (an undercover) CIS agent for 3 of his clients.  He took money and faked a marriage for two of his clients, and probably faked the signature of the employer in Employment based visas. Then he submitted these documents to the Immigration Officer rather than by proper mail channels that is regular with the CIS.

I remember being asked by an Immigration Officer, for an interview (at the Houston District Office)  I had with my clients once, “you are not going to bribe me with tickets to the music show?” When I looked horrified that the officer would suggest such a thing,  he said, he was joking with me, but that the previous Indian attorney had offered him tickets to a musical show that she performed in.  Although the officer did not say the name of this attorney, I completely believed him, because there is an attorney in Houston of Indian origin who sings.

This attorney may or may not be trying to bribe the officer, but of course was trying to get friendly with him. As Immigration lawyers, and in order to ensure and uphold due process must not become friends or have any social connections with the officers who adjudicate these cases.  The same is true for judges.

And while I am at it, Texas elects all its judges. And lawyers give “campaign contributions.”  Is not campaign contribution a form of bribery?

 

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

 

 

Special Quotas for Irish in the New Immigration Deal?

May 17, 2013

The history of Immigration in the USA goes right along the history of slavery, and can be described by one word: Discrimination. The Asians were not even allowed to enter, because Immigration was restricted to people “from Caucasian descent.”

In 1923, when Bhagat Singh tried to get Citizenship, claiming that he was “Caucasian” (Indians are Caucasians by race), the US Supreme Court ruled that Indians could not assimilate into the “white society”, that East Asians were barred from immigrating, and applied it retroactively, denaturalizing all Asians given the Citizenship previously.

Fast forward not even a 100 years and the Irish are claiming favoritism again in 2013.  They claim its “hard” for people of Europe to immigrate and estimates that as many as 50,000 Irish people are currently living ILLEGALLY in the US.  They complain because they are not included in the “Diversity” visa, a visa given by lottery to any High School graduate because there are few citizens of that country.  Note India and China never were included in the diversity visa.  People from there come on the basis of merit.

And just how will Ireland justify allowing more numbers to the Immigration quota? Because they  have “political clout” with a lot of Senators. Senator Chuck Schumer is in their pocket. John McCain “works ” with them.

I have a note to Irish parents: why don’t you just have your children get the Bachelor’s Degree like the rest of us?  And yes, the CIS favors a British or Irish Degree over Indian or Chinese Degree anyways.

We should end country quotas, end Diversity based on country of origin, end Xenophobia, and get immigration not by the color of our skin, but by the content of our brain and character.

 

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

The LGBT Amendment

May 9, 2013

Sen Patrick Leahy has introduced an amendment on the Senate immigration bill introduced by the gang of 8, to allow LGBT couples in long term relationships to get immigration benefits. And even though I am a liberal, and whole heatedly support gay rights, I think this amendment should be considered if and only if the Supreme Court leaves DOMA intact. 

Gay couples are allowed to marry in many states. However, unlike heterosexual couples, who can get immigration benefits if their spouse is a Citizen of United States, gay couple cannot get the same benefit. And that is because DOMA, a federal law defines marriage as  an union between a man and a woman. This law is up in front of the Supreme Court, has no support of the Obama administration or the majority of American people, and is a discriminatory law with no purpose. If the Supreme Court does not strike down DOMA, then the Roberts Court will go down in history as a bigoted court, out of touch with the reality of the times. 

Being an optimist, I would like to think that the majority of Justices will at least think of their legacy and strike down DOMA. If that happens, gays can already marry in 11 states.  Under full faith and credit, other states have to recognize and give Immigration benefits to same sex married couples. 

The amendment says benefits to couples “in long term relationships.”  Why would same sex couples have to prove “long term” when hetero couples dont? Why should the law recognize a Kardashian type Vegas marriage and not a similar same sex marriage? 

Being LGBT is an immutable characteristic, same as skin color, or hetero orientation. So why should the law create a special class for LGBT people? We need EQUALITY, not special protection. Hetero and same sex couples should be looked upon as same, couples who will build their lives together. And because this is a subjective standard, and the CIS officers will look at this with their own biases, the law should create standards for determining whether the relationship is real or not.  The same standard for EVERYONE, regardless of their sexual orientation. 

No other area of law is rife with discriminatory history as Immigration Law.  Lets end this, end country quotas, end special protections for some. 

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

 

Travel on H-1B

May 7, 2013

Please note that this is advisory ONLY.  Anytime you travel, whether you are let in is purely up to the discretion of the CBP officer at your port of entry.  H-1B visa stamping is difficult in India, especially for smaller software companies.  However if you are not a US Master’s Degree holder and this is your first H-1B stamping, and you are originally from India, you have to go to India for stamping.

There is no way to predict when your regular processing H-1B will be adjudicated.  Premium is a safer bet, however upgrading it to premium sometimes incurs a Request for Evidence.

You are a US Master’s student on OPT, and you want to travel.  Your H-1B got accepted.  Can you travel in June and come back in July?

If you look at your OPT, it says not valid for travel.  So its good to have your student’s visa valid in your passport as well.  Also definitely have your H-1B on premium and approved when you go.  Have a letter from your employer that they are employing you currently on your OPT and intent to employ you on your H-1B, and recent pay stubs. .  However there is always a possibility that CBP Officer may want the H-1B visa stamped, especially if this is closer in date to October 01.  If you return after October 01, obviously you have to have the H-1B visa stamped on your passport.

 

You are on H-4 or L-1, applied for change of status to H-1B.  Your application got accepted. Now you want to go out of the US?

If there is a pending application with the Citizenship and Immigration Service, the CBP officers will usually not allow you to enter back.  Also, if the officer adjudicating your H-1B case finds out that you are not in the United States, then she will not give the change or extension of status.  Thus have the H-1B approval before going abroad.  However the above principles of not being let in, esp nearer to October applies.  And sometimes officers are less forgiving to people who do not have US Master’s Degree.

On another note some L-1s try to file for H-1B just to get the quota, and want to maintain their L-1 status even after October 01.  In that case, if the applicant enters after October 01, on his L-1 status, and the I-94 clearly proves it, then yes, L-1 status is maintained.  The applicant has to file another change of status application or get the H-1B visa stamped though before he starts work on H-1B.

 

You are on H-1B and have applied for extension or transfer and want to go out?

The officers will not extend status if you are not physically present in the US.  So if travel is urgent, then either upgrade to Premium, or be prepared to get the visa stamped before coming in.  If you go out after the approval, if you already have a valid H-1B visa stamped in your passport, you can come in with that, even though you filed for a change of employer, and your new employer’s name is on the I-797 approval form.

 

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