A New way for the Government to make money---Deemed export rule

Certain technology is controlled by our Government and restricted for importing to other countries. The Commerce and State Depratments issue licenses for such exports. This rule has long been in the books, but was not really enforced. Suddenly in December of 2010, the new I-129 form came in, and the form included questions about deemed export for H-1B, H1B1,L-1 and O-1A.

The employer has to first ascertain what the beneficiary's citizenship country is. Then ascertain what technology the beneficiary has access to. If the employer needs a license from the Department of commerce/State to export that technology to that person's country, then the employer has to first get the license before filing the H-1B, or deny access to the person until such license is obtained.

For large Computers Systems, usually source code is controlled, not onject code. Also sophisticated networking systems and encryptions are usually controled.


There are two types of Deemed Export regulations: the Export Adnimistration Regulations administered by the Department of Commerce, and the International Traffic in Arms Regulations, administered by the Department of State. More information on these can be found at:

http://www.bis.doc.gov/licensing/exportingbasics.htm



To get the license for nationals from countries like Iran, Iraq, Syria, China and Libya is very difficult.

The penalties for violation of this law is severe. And ICE will audit employers. Civil penalties range is either $250,000 or twice the gain from the particular technology. Criminal pelalties range from upto 1 million USD, and upto 20 years prison term.

There is of course no prior evidence that anyone on H-1B ever exported any technology back home. But, Immigration is fast becoming a huge cash cow for the Government. We love to hate immigrants, and make employers who hire immigrants pay severe penalties. And in the process we will loose our competitive edge to other countries.



For more information contact Houston Immigration Lawyer or Houston Immigration Attorney, Annie Banerjee

Xenophobia failing in Arizona

We formed society and weaved laws to regulate our lives so that we can live and let live. Laws need to be for common good. Thus any law based on hatred for any group, usually fails. The tough immigration law of Arizona, based on xenophobia is failing. Arizona has been shunned by businesses across the nation. Phoenix dropped from being one of the top four destinations in the US for conventions, to being the 23rd. And Governor Jan Brewer's tough anti immigration stance has been tempered.

Arizona businesses are now strongly protesting the anti immigration law. Bowing down to business pressures, the Arizona Senate recently voted down 5 bills which included amongst other things that hospitals report police of immigration status of emergency care patients, and do away with birthright citizenship. Other conservative states like Utah are not going the Arizona way. The whole reason behind the unpopularity of the Arizona law was that it was based on xenophobia about Mexican immigrants. The hatred for them was embodied in the denial of basic services to them. And hatred for a targeted group got no one no where.

For more information contact Houston Immigration Lawyer or Houston Immigration Attorney, Annie Banerjee

Immigrant Children

In the official American Immigration Lawyer's Blog, Ms. Crystal Williams disputes a "study" for the Center for Immigration Studies, an Anti Immigration group, which states that in 2009, 200,000 people were born in the US to immigrant women here who were "lawfully admitted as temporary visitor" and they are all growing up to become terrorists. Both the claims are of course preposterous. Ms. Williams reasons why the number (200,000) is impossible in her blog. http://ailaleadershipblog.org/2011/03/15/msu-on-steroids/

In this blog, I want to make a case that first generation immigrant children achieve much more than their peers who are not. I was one of those who had a child born in the US, when my husband was on a J visa at Harvard Medical School, and this is my story too.

In her book, "Battlehymn of the Tiger Mother" Ms. Amy Chua, a Yale law professor argues about how, we immigrant mothers do not have the softer way of parenting as does native American mothers. We are not concerned about hurting the feelings and self confidence of our children. We feel that if our children achieve, they gain the self confidence through admiration from teachers and other students, rather than from parents. I have "American" (I will use this term to mean US born) mother friends who say "wow" when their children get Bs and Cs. If my children got a 95, I would ask why they did not get a perfect score. The result? Both my happy healthy kids went to the ivy leagues, and are now both in med school. In both their graduations, about 95% of cum laude students were first generation Americans. My kids loved the education they got, and have already given back numerous hours in social service. They will continue to do so, because they feel for Americans. (Not to mention the high taxes they will pay as future doctors).

Would they have done this, if birthright Citizenship was not granted to them? Would these high achieveing ivy educated kids love a country that did not care for them? We would be back to the America of the 50s, with a generation of Willy Lomans if we followed the dictates of Center for Immigration Studies.

For more information contact Houston Immigration Lawyer or Houston Immigration Attorney, Annie Banerjee

Peter King, Muslims, the Hysteria

Today, the Chairman of the Department Of Homeland Security in the House, a Republican from New York, Peter King testified before the House about the "growing radicaliszation of American Muslims." He has previously said more than 80% of mosques were tainted by radicalism. I wonder where he got that figure. There were two people who testified that they their relatives, (a son and a nephew) turned radical. Two out of how many muslims in this nation? Two is a trend for Mr. King. Enough to scrutinize every Muslim in America and deprive them of their fundamental right to privacy. Not to mention the humiliation.
Interestingly where were these republicans when Timothy McVeigh blew up the federal building in Oklahoma. Or during the KKK ralies? Unfortunately its so easy to target and demonize an identifiable minority group. And if America does this, can it really champion Freedom and Democracy to the rest of the world?

For more information contact Houston Immigration Lawyer or Houston Immigration Attorney, Annie Banerjee

Proposed registration before filing the H-1B

The Citizenship and Immigration Services (CIS) is proposing a registration process before filing the actual petition for new cap subject H-1Bs. The registration will apparently take 30 minutes, and the CIS will preview the application and then give the employer the go ahead to file.

If by April 01, more than 65 K applications are reached, the the CIS will do a lottery and let lucky ones know. The rest will be kept on a wait list, and may get in if the numbers become available. If the numbers are not reached on the first day, the CIS will keep the registration open until the cap is reached.

This will hopefully be a simpler process, and cut down the amount of work, and thus the cost of having an H-1B petiton filed.

However, what we dont know is HOW LONG the CIS will take to review the registration and give the go ahead. Also not known is how much bureaucratic mess we will go through. The Department of Labor's LCA fiasco with their "inability to match FEIN numbers" come to mind. So if numbers are still available after October 01, of a given year, and an employer wants an urgent approval, she will still have to deal with first the CIS registration, and then the LCA process before she can file. Thus the purpose for which Premium processing was created so that the Employers can get somebody at the pace of the 21st Century, will become meaningless.

Also not known is how extensive this registration process will be. If the CIS needs to adjudicate substantive issues of the law, then the registration itself will be as long as the petition. Thus this whole process will be a complete waste of time and money for everyone.

The Comment period is until May 02, 2011. So this registration process will not be for Fiscal Year 2012.

For more information contact Houston Immigration Lawyer or Houston Immigration Attorney, Annie Banerjee

Sputnik Moment for the arts?

This weekend I'm going out with some friends to a Korean restaurant in Houston. Not the kind of place where the menu is in Korean and the food looks like it could be in Seoul. We don't have such places in Houston, or New York, or LA. To find authentic food, other than that country, you need to travel to Canada. Why? Because we will simply not give immigration to Chefs.

President Obama reiterated our Sputnik moment, a moment when we competed with Russia in the space war and won it. And yes, we want the brightest and the best. But only the brightest and the best in Science. We give an additional 17 month work permit for foreign students in Science, Technology, Engineering and Math. The rest of the subjects don't matter to us. In general Extraordinary Ability visas are easier for Scientists to obtain than artists. And yes, the measly budget that the Government spends on the National Endowment for the Arts gets slashed every time, to increase budgets like the military.

As a Society we consciously chose to become a melting pot. And we did that with great success. Countries like Canada, England or France which chose multiculturalism created sub classes of immigrants with awful race relations. Yet we are not adding to our melting pot.

During New York's Fashion Week, Mayor Michael Bloomberg argued that the country's immigration policies jeopardize New York's status as "the fashion capital of the world," saying they limit visas for designers, manufacturers and, yes, models. Similarly throughout the country artistic performances get canceled because artists don't get visas. And what's strange is that most politicians, including President Obama are humanities majors. Yet until they realize the importance of the arts, I have to be content with my American version of Korean food.

For more information contact Houston Immigration Lawyer or Houston Immigration Attorney, Annie Banerjee

The PERM Game

In order to do a Labor Certification, commonly known by its acronym, PERM, the US employer has to "test" the labor market to prove that no Americans are available to do the job. They do this by advertising in various places. The Department of Labor prescribes to us which particular places we can advertise. And that's where this game starts. Its a stilted process which has no resemblance to real life. We have to advertise in the Sunday edition of a newspaper. While this might keep the newspaper industry in the US afloat, in real life especially for jobs like "software engineer"--nobody reads print newspapers anymore. Then we have to advertise in the State Workforce Agency's web site. I bet you did not know that each state has a job search website run by the workforce agency. I did a google search on "Engineering jobs in Texas" and the workforce agency's website did not come up in the first two pages.

Yet when employers use a private Recruitment firm to do the "test" of labor market, they can get denied unless they have adequate documents to delineate exactly how they conducted recruitment. In re Unica Corporation, Balca 2010-PER-00006

So my advise to Employers is play the game by the DOL rules. In this game, the referee (DOL) is unforgiving, so avoid fouls by keeping meticulous records of all advertisement and recruitment report before starting to play the PERM game. If you are using any private recruitment agency, have a signed statement from them as to what they did, and keep it in the file. Follow the letter of the law, not its intent. Is this contrary to American jurisprudence? You bet.

For more information contact Houston Immigration Lawyer or Houston Immigration Attorney, Annie Banerjee