Posts Tagged ‘H-1B’


October 7, 2016

Since Comprehensive Immigration Reform was not likely to pass, President Obama passed a series of Executive Actions to remedy some of the harm caused by immigration inaction. Originally DACA (Deferred Action for Childhood Arrivals) was published in 2010, which basically said that Kids brought…



H-1B lottery

September 30, 2016

Every year as winter starts to fade into spring, the Citizenship and Immigration Service receives thousands of petitions for H-1B visas. 236 thousand petitions last year to be precise. H-1B visas are used by US Employers to get highly qualified professionals, mainly in Science and Computer…


Entrepreneurs Visa

August 29, 2016

In 2014, President Obama issued an Executive order making it easy for Entrepreneurs to get visas. However until this past Friday, the Citizenship and Immigration Service (hereinafter CIS) did not issue any guidance as to how this could be achieved. For instance, a computer science major foreign…


The Donald and Immigration fraud

August 5, 2016

Politico has raised doubts about Melania Trump’s Immigration Status.  Melania could have come to the US with the special H-1B status for models.  H-1B for fashion models, unlike other H-1B categories, does not require education.  However it does require that the model be famous in internationally, and that she has a job offer.  Therefore Melania’s lie about her education in Slovenia was probably not instrumental. However, the facts as to (1) whether she had a job offer, probably from a modeling agency, before coming to the US and (2) Whether at that time she was a reputed model, can be in dispute.

Added to that, Politico also notes that both Donald and Melania Trump stated that she would return home every few months to renew her visa.  Since most H-1B visas are given for three years, maybe Melania Trump came on a Visitor’s visa (B visa).  Under a B visa, she was not allowed to work in the US.

The H-1B visa would require Melania to work for a modeling agency.  She needed to sign up with the agency before coming to the United States.  Maybe she was free lancing, because my guess is that free lancing models get paid more per job. So she came on a B visa, worked here, and went back to Europe after the job was done, to come back again. The only problem is that the B visa DOES NOT allow her to work in the US. So in this scenario, she committed Immigration fraud.

After the article came out, many left wing pundits are calling for deporting Melania.  Not so fast. She is married to a United States Citizen.  Her “fraud” can be waived (the technical term is 601 waiver) if the US Citizen husband suffers “extreme hardship” if she leaves.  This standard is “Yuge”.  However judging by the number of times Donald has mentioned “sex” in the campaign, not to mention his strong defense of his hand size, I think Donald would claim “tremendous loss” if Melania is deported.

For more information on Immigration, please contact Houston Immigration Lawyer, Annie Banerjee

H-1B fraud solutions

March 7, 2016

The H-1B program has been coming under attack lately. Ted Cruz wants to put a moratorium on H-1B visa. That seems to be the Republican solution to every crisis—-stop it and put your head under the sand, and the problem will go away. Is there fraud in the H-1B program? Yes. But the way to…


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.

H-1B Cap

April 8, 2013

USCIS announced that it has received approximately 124,000 petitions.

The cap is 20,000 for US Master’s Degree holders and 65,000 for general.

USCIS has received more than the amount in all categories.  Thus it will do a lottery for the 20,000 Master’s Degree holders first.

Those who are selected will get the receipt notice.

Those who are not selected will be entered into the 65,000 general lottery

So US Master’s cap will get two chances at the lottery.

USCIS has not announced when they will do the first lottery.

We will update each and every one of our clients as soon as we know anything.

If you don’t get selected  the CIS will not withdraw your application fees. If you are on any other visa category, and applied for a change of status, your status won’t be changed and you can continue in your current status.

If you were a student, and are working in your OPT, and don’t get selected even after 2 lotteries, you can either : (1) go back to student status, or (2) file H-1B from a non cap (non profit research) institute.

CIS also has the power to extend the cap gap or the EAD status until next year, but we cannot predict if the CIS will do so.

If you are a student and get selected, you will need your receipt notice to apply for cap gap, if your EAD expires before October 01, 2013.


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


The Unnatural H-1B quota

April 5, 2013

Our laws impose the completely unnatural, unrealistic, uncapitalistic quota of 65,000 (plus 20,000 for US Master’s Degree holder) visas for H-1B, a visa reserved for professional skilled personnel.  Since the government year starts on October 01, and they accept visa applications 6 months before, the first day one can file the petition is April 01.  The job actually starts from October 01.

From  2006 to 2008 more than that amount was filed with the USCIS on the first day. The government resorted to a lottery.  Then came the economic downturn and the visa filings were slow.  Now again, as the service centers start counting the visas today, its expected to at least reach or exceed the quota this year.  This means that the economy looks better.

The counting starts today, on the day that the job records came out with a bleak report that hiring has slowed down in the USA. I am sure that the anti business immigration folks will scream about job preservation. Yet, the jobs lost in the US are federal government jobs and retail jobs partly seasonal and partly due to the sequestration. None of these jobs are tech jobs. If America idolized colleges for their US News and World Report rankings rather than the NCAA rankings, we would not face a shortage of tech  personnel.

However another major problem is the quota itself.  Computer consulting companies are the main users of the H-1B visas. They have to predict their usage for the year.  Once the quotas are gone, they cannot get labor to supply their clients, and have to take a major hit.

The other reason is that the educated spouses of H-1B holders, (on H-4 visas) cannot work. Dependents of L or J visas can.  But for some completely inane reason, dependents of H visas cannot work. So these H-4 visa holders approach Consulting companies for jobs. Consulting jobs are hard.  Not only do you have to know computer science, you also have to travel places with the job. Americans simply wont work that hard or travel that much.

Thus we should do away with this unnatural quota. Let the marketplace dictate needs. Yet the Obama Government simply will not handle immigration piecemeal. They want those Hispanic votes and wont do anything for the country until they get those votes.


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


March 27, 2012

Its about that time of the year when the Government will start accepting cap subject H-1B petitions for the Fiscal year 2013, which starts on October 01, 2012. The Obama Administration promised to Silicon Valley recently that they would ease the immigration laws for High Tech graduates.  Yet for small computer consulting companies, the outlook seems bleak.


Computer Consulting Companies specialize in recruiting and placing consultants in bigger companies. Many times one consulting company has contract with another who then in turn has a contract with a big company. This is the nature of their business.  In 2010, the Government in a memo created a new law that the employers should have “Direct control” over their employees. The Government then said that where there are intermediates between the employer and the end user of the employee, the employer does not have control.  The government requires a huge amount of proof and often letters from the end user saying that they don’t control the employee. The end users often refuses to bother with such things. After all, if they wanted the hassle of an employee-employer relationship, they would recruit themselves.


The burden on small consulting companies is onerous.  In a recent memo, the Government has said that they don’t require any particular type of document, including letters from the end user, but the companies have to prove by a preponderance of evidence that they control the employee. And the Government of course gets to decide whether there is preponderance of evidence. This is like the fox guarding the hen house.  Also very often contracts are given for a short duration, and is thereby extended. But letters from the end user that the contract may be extended is not enough. The Government will make the duration of the H-1B for a few months for the duration of the contract. Then the petitioner has to file again.


If the Government denies an H-1, the beneficiary has to leave the country. An appeal takes forever and is simply not cost efficient for the Petitioner to do.  So the government gets away with whatever they want. So very few of these cases make it to the Judiciary.  In a recent case, Residential Financial Corporation, 2:12-cv00008, the Government challenged whether the Court has jurisdiction since the plaintiff did not ask specifically to get the beneficiary back. The federal Court (Southern District of Ohio) said that the Government did not provide the Employer and employee , “A Bare minimum level of professionalism, diligence and reasoning.”


And that is how the H-1B petitions are being adjudicated. Of course getting the visa form a consulate in India is harder and more capricious, but that will take pages and another blog.


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

Policy vs. Practice

March 2, 2012

A few days ago, the Director of United States Citizenship and Immigration Service, Mr. Mayorkas said that the United States Citizenship and Immigration Service (USCIS) would make the process for foreign born tech start up companies’ immigration easier with the highly touted “Entrepreneur in Residence” Program. The goal he said was to keep foreign born entrepreneurs in the US. Everyone applauded, but it takes years to introduce a new program.  Meanwhile, the existing visas are not available for tech start ups. A start up cannot have H-1B visas, especially is the beneficiary owns part of the business. Bill Gates, if he was an immigrant, would not be able to get an H-1B visa, or a Green Card from Microsoft because (a) He didn’t have a “Computer Science Degree”, (b) He owned Microsoft, and (c) Microsoft as a start up would not have the ‘ability to pay’ Gates. Same is true for Sergey Brin and google, although Brin did have a Comp Sci degree., or Zuckerberg and Face Book. 


If the Government wants to make it easier for Computer Science Graduates from US Universities, it certainly does not look so. Since January 2010, the CIS issued a memo, which introduced an element stating that Employers should have direct control over H-1B employees. That effectively killed the H-1B visa for Computer Consulting industry. 


And recently, the Department of Labor has taken to auditing a lot of labor certifications (PERMS) . I can understand the auditing of Perms for jobs not requiring a highly skilled degree. But these audits are done in random and effects everybody.  So we have one hand of the Government stating that we need to keep our tech graduates, and the other hand doing everything to make it harder for them. Maybe someday the Government will work as a cohesive unit. 



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