Silicon Valley Immigration Lawyer Blog

Now that the H-1B season is in full swing, employers need to be wary of falling into traps with their Labor Condition Applications. An employer's lack of familiarity with the problems surrounding the Department of Labor's new I-Cert system can make the difference between having an H-1B application counted towards the 2010-2011 cap, and missing it entirely. Employers must use the I-Cert system to obtain a certified Labor Condition Application (LCA). A certified LCA must be submitted with an H-1B application. But the DOL's problems with the I-Cert system have been causing H-1B denials.

Last year the Department of Labor rolled out its new "I-Cert" system for H-1B's, H-2A's, and PERM applications. H-1B employers are required to file LCAs electronically using the Department's LCA Online System. The LCA's for H-1B's includes declarations regarding the payment of prevailing wages for the position, and the working conditions offered. By law, the DOL must certify the LCA within seven days, unless it is incomplete or inaccurate. When completing the LCA, an employer must enter their Federal Employer Identification Number (FEIN) assigned by the IRS. When the I-Cert system initially started, long-established employers started receiving denials of their LCA's because the DOL could not verify the employer's FEIN. This happened to companies of all sizes, and even to companies that had been using the prior LCA program for years.

The DOL has since provided a rather weak "fix" to this problem. Employers can submit proof of their FEIN in advance of submitting an LCA. An employer who does this should receive confirmation from the DOL within a week, that the DOL has confirmed the employer's existence. Although this appears ridiculous to employers who have been in business and paying taxes to the IRS for years, it is ultimately a time saver. If an employer does not submit proof of their FEIN in advance, then a few days after submitting an LCA, the employer might receive a denial based on the DOL unable to confirm the employer's FEIN. The employer will then have to submit the proof of FEIN, and once the DOL confirms the employer's existence, the employer will have to submit a new LCA. Submitting the proof before filing the initial LCA can save one to two weeks.

Continue reading "DOL Issues with H-1B Labor Condition Applications" »

It's time for Silicon Valley employers to prepare their H-1B filings for fiscal year 2010/2011. April 1st is the first day that employers can submit H-1B applications for the 2010-11 fiscal year. The fiscal year begins on October 1st, and H-1B applications can be submitted up to six months ahead of time - on April 1st.

Congress sets the annual cap for new H-1B visas, and it is currently 65,000 plus an additional 20,000 H-1B visas for employees with a U.S. Master's degree or higher. Except for last year, the prior few years saw the cap reached within the first few days of April 1st. If the USCIS determines that the volume of applications the first few days of April shows that the cap will be reached, then they will conduct a lottery and include all the applications submitted within the first five days of April 1st.

H-1B visas are a work visa for foreign professionals. To qualify for an H-1B, the worker must, at a minimum: (1) Be coming to work for a U.S. employer; (2) Be coming to work in a specialty occupation position. A specialty occupation ordinarily requires the attainment of a bachelors degree or its equivalent, as a minimum for entry into the occupation, and (3) Have at least the requisite bachelors degree or equivalent.

To sponsor a prospective employee for an H-1B, an employer must first obtain a certified Labor Condition Application (LCA) from the Department of Labor. The main purpose of the LCA is to assure that employment of H-1B workers will not adversely affect U.S. workers in the same occupation. An employer must attest that they will pay the H-1B worker the higher of either the same wage that similarly employed workers are currently paid, or the "prevailing wage" for similarly employed workers across the metropolitan area.

Once an LCA is approved, the employer can file the H-1B petition with the USCIS. An H-1B can be granted for an initial three year period, and can be extended for an additional three years. After six years in H-1B status (or a combination of H-1B and L-1 status), an H-1B worker must leave the U.S. for at least one year before returning on another H-1B (or L-1).

Spouses and children can obtain H-4 visas that allow them to accompany the H-1B worker, but the H-4 does not allow them to work.

Today, U.S. Senators John Kerry and Richard Lugar proposed a new immigration law that Silicon Valley companies and investors have long supported - the Startup Visa. The Startup Visa Act would allow a foreign national entrepreneur to receive a two-year visa upon showing that a qualified U.S. investor is willing to invest at least $250,000 into the entrepreneur's startup venture. If after two years the entrepreneur can show that the venture created at least 5 full-time jobs in the U.S., and attracted an additional $1,000,000 in additional investment capital, or achieved $1,000,000 in revenue, then the entrepreneur could obtain permanent resident status.

Many Silicon Valley venture capital firms signed onto a letter to the Senators in support of the Startup Visa Act. The letter describes how the immigrant entrepreneurs they have tried to work with often cannot obtain a visa that will allow them to remain in the U.S. and develop a new business. When the immigrant cannot obtain the visa and leaves the U.S. to start their company in a different country, the loss to the U.S. is substantial. The jobs that would be created by the new venture, which could easily number in the hundreds and thousands over the first decade of a successful company, are simply lost.

Senator Kerry's Press Release today quotes him as saying, ""Global competition for talent and investment grows more intense daily and the United States must step up or be left behind. Everywhere Dick Lugar and I travel for the Foreign Relations Committee, we see firsthand the entrepreneurial spirit driving the economies of our competitors. Creating a new magnet for innovations and innovators to come to the United States and create jobs here will offer our economy a double shot in the arm - robust job creation at home and reaffirmation that we're the world's best place to do business."

Continue reading "Startup Visa Would Help Silicon Valley" »

In my experience as a Palo Alto immigration lawyer, the number one question is the obvious one: How long will my visa application take? The USCIS service centers provide bi-monthly tables that show how long different visa applications should take. The most recent table for the California Service Center is below.

USCIS CSC Processing Times Table

The column on the far left shows the actual Form number, and then the type of visa application. The far right column shows either a duration of months, or a specific date. If the time frame is shown as a duration of months, this mean that the time period is the USCIS' "goal" for that type of application, and that they are meeting the goal, for the most part. If the time frame is shown as a specific date, it means that the USCIS is not meeting its "goal" for that type of application, and that the date shown is the submission date of the last application adjudicated.

For example, the chart above shows that an I-129 visa application for an O-1, Extraordinary ability nonimmigrant, is taking approximately two months to adjudicate. For I-90 applications to replace a Permanent Resident Card, the California Service Center last adjudicated an application submitted August 17, 2009.

Continue reading "Silicon Valley Visa Applicants Want to Know: "How long will it take?"" »

Today's New York Times article, Report Warns Silicon Valley Could Lose Its Edge, looks to the factors that have slowed economic recovery in Silicon Valley. The article attributes the down economy in large part to the recession, reporting that Silicon Valley lost 90,000 jobs from the second quarter of 2008 to the second quarter of 2009, and that unemployment is higher than national levels. Other measures of the down economy are the decrease in the number of patents from last year, as well as the fact that last year saw the lowest number of initial public offerings of stock in technology companies since 1970.

Discussing how the Silicon Valley economy may recover through new innovation and green technology, the article points out that over 60% of Silicon Valley scientists and engineers are foreign-born. However, the region saw a decrease in immigration by 34% last year. Countries are luring their own citizens back home, as discussed in an earlier post "Silicon Valley Immigrants Included in Talent Exodus". At the same time, the U.S. is increasingly making it difficult for temporary foreign workers to come on an H-1B or L-1 visa, as well as subjecting intending immigrants to long queues.

The article highlights one of the key solutions to this "brain drain" problem - increase the level of education to U.S. students so that the U.S. is not as reliant on foreign talent. However, the article points out that 5 percent fewer California high school graduates are meeting requirements for entrance to state universities, the number of science and engineering degrees has leveled off and California general fund spending on higher education dropped 17 percent last year.

Before you head off to your San Francisco or San Jose USCIS immigration interview take a quick look at the document below. The United States Citizenship and Immigration Service recently provided a real gem. Their immigration Fraud Referral Sheet was submitted into evidence during a removal hearing. This sheet is a checklist of possible fraud triggers, applicable to various types of immigration benefits. It appears that if a USCIS adjudicator suspects fraud in an immigration application, they would check the appropriate boxes and forward the sheet to the Fraud Detection and National Security Unit for follow up.

As an immigration lawyer, I was delighted to find this sheet posted on the American Immigration Lawyers Association infonet. We know the obvious issues that could indicate potential fraud (i.e. large age difference in a marriage case, a low-income earning, high-school educated male petitioner marrying a college-educated professional woman). However it's always a bonus to obtain a copy of the document that the USCIS actually uses.

Some of the possible fraud triggers listed are rather surprising, in that I do not know why they would indicate possible fraud. For instance, the first section applies to in-person interviews. Interviews at the local USCIS office are required for marriage-based green card cases, asylum cases, and for some employment-based green card cases. "Late for interview" is one of the listed factors. An applicant should certainly plan for contingencies and make every effort to be at a USCIS interview on time, but I have stood in very slow lines to enter the USCIS office in San Francisco as only a few people are allowed to enter the building at a time and everyone is required to put everything through security. If an applicant was late for an interview at the San Francisco USCIS, a more realistic assumption is that they did not know where to park or did not plan on waiting in line to enter the building.

"Eye contact" is another factor. I assume this means lack of eye contact when answering questions during the interview. It should be commonly understood among USCIS adjudicators that people from some cultures will not make eye contact when asked questions by someone with greater authority, when asked questions by a government official, or for some women - when asked questions by men. Lack of eye contact should not necessarily trigger a fraud alert, especially for people from cultures where making eye contact is seen as aggressive or as disrespectful. Of course, many people who are just nervous fail to make eye contact, and being questioned by a USCIS official is likely to make many honest people somewhat nervous.

"Answers prompted by attorney or other" is another factor for which I disagree. As an immigration attorney, I have attended many interviews where I have "prompted" my client. This was not an attempt to answer for them or to suggest the answer to them. It usually arose when my client did not understand the adjudicator or their question. I would rephrase the question for my client, or actually remind my client about something they had already told me. I've also watched clients sit frozen, and not pull out the stacks of documents they've brought to the interview that would provide important evidence to their case. In those instances, I've spoken up and suggested that the client pull out particular documents to show the adjudicator. I consider this being an advocate, and don't see it as a fraud trigger.

Several of the fraud triggers on the sheet below certainly do make sense, such as "lack of knowledge of basic questions", and "children born during marriage to other parent". Hopefully this is simply used as a guideline for USCIS officers, and that it does not replace their experienced judgment in evaluating cases.

USCIS Fraud Sheet (1!27!10)

Angel Island Immgration Station

Today's San Francisco Chronicle profiles the complex history of Angel Island, an immigration station opened 100 years ago to process new immigrants into the United States. The article quotes a retired professor of American studies who is writing a book on the immigration status as declaring "Angel Island is a symbol of both inclusion and exclusion." More than 500,000 people passed through Angel Island between 1910 and 1940. Almost one third of them were Asian, and the immigration laws at that time were designed to limit Asian immigration. The Chinese Exclusion Act, in effect until 1943, allowed only certain classes of Chinese immigrants to be admitted - scholars, clergy, merchants, and the children of American citizens. Thousands of Chinese, as well as other Asian immigrants, and Russian refugees from the Bolshevik Revolution, were detained on Angel Island for up to a year at a time while their case was evaluated.

Many Chinese immigrants passing through Angel Island had false papers claiming to be a child of Chinese American citizens so that they would be able to enter the U.S. The article reports that these "paper sons" spent a great deal of time studying the background of their supposed ancestors, and immigration officers tried to ferret out these "paper sons" through extensive interrogation. If caught, they were shipped back to China, but if they succeeded they were admitted to American. Many Chinese American families have this unique legacy of descending from "paper sons".

The government first opened the immigration station on Angel Island, in the San Francisco Bay, on Jan. 21, 1910, and immigrants were taken there from San Francisco by small steamers. The immigration station was closed after a fire in 1940. Angel Island is now a state park, and the immigration station buildings have been restored. Many of them have poems written on the walls by immigrants detained there.

A self-proclaimed "wiser" Lou Dobbs appeared on Bill O'Reilly's program last week to discuss immigration reform. "Wiser" means acknowledging that this country needs immigration reform legislation that goes beyond enhanced border security, and that meets the needs of the undocumented people already living here. The answer is not mass deportations. Mr. Dobbs' suggestions are consistent with prior proposed legislation, including allowing undocumented people to pay a fine, learn English, and get on the path towards U.S. citizenship. He also suggested a separate guest-worker program to help reduce continued illegal entries from Mexico. A key issue of any immigration reform providing legalization will be to dramatically increase the size of the USCIS. Whatever his reasoning for "wisening up", we say better late than never.

Modern-day slavery takes place every day across the U.S., including the Bay area, in the form of human trafficking. It is not exclusive to impoverished, third-world countries. San Francisco, San Jose, and the communities in between include people living in modern-day slavery. The United States, including the Bay area, is a destination for thousands of people illegally trafficked into the U.S. from Mexico, East Asia, South Asia, Central America, Africa, and Europe. Trafficking includes prostitution, domestic servitude, and other forced labor. But it also includes people who we would not necessarily think are trafficking victims, such as nail salon workers, and live-in domestic help.

Raising awareness is key to combating human trafficking in the U.S. If we understand what trafficking looks like, we can report it to police or federal authorities. Immigration Customs and Enforcement (ICE) is the lead U.S. Federal agency for investigating and dismantling human trafficking organizations. Last year ICE launched their "Hidden in Plain Sight" billboard campaign in cities across the U.S. to educate Americans and to provide anonymous tip lines. During 2009 ICE initiated 566 human trafficking investigations, leading to 388 arrests, 148 indictments and 165 convictions. The ICE website includes examples of criminal prosecutions, such as the family convicted on multiple grounds for smuggling young African women into the U.S. , and forcing them to work in hair-braiding salons in the Newark, N.J., area. The women worked six to seven days a week, eight to 12 hours per day. They were not allowed to keep the money they earned. Some of the victims were also subjected to physical and sexual abuse, and were held in servitude for more than five years.

Since 2000, U.S. immigration law provides an avenue to legal immigration status for victims of trafficking. Most foreign trafficking victims are in the U.S. illegally, having been smuggled in or with false visas and passports. Trafficking victims may be eligible for a "T" nonimmigrant visa, and if they obtain a "T" visa they could ultimately apply for U.S. permanent residence. Eligibility requires showing that the applicant has been a victim of a severe form of trafficking, is physically present in the U.S. or at a port of entry on account of trafficking, has complied with any reasonable request for assistance in investigating or prosecuting trafficking, and would suffer extreme hardship if removed (deported) from the U.S.

Monday, January 11th will be National Human Trafficking Awareness Day, and earlier this week President Obama proclaimed January 2010 to be National Slavery and Human Trafficking Prevention Month. In the Bay Area, the San Francisco Collaborative to End Human Trafficking will sponsor several events throughout January geared towards raising awareness and advocating for tougher laws. Follow the links below, and at a minimum increase your awareness of modern-day slavery in our own cities: U.S. Department of State Trafficking in Persons Report 2009, Polaris Project .

Employers wanting to sponsor employees for H-1B's or immigrant visas will face new legal procedures beginning January 1, 2010. Employers will need to obtain the "prevailing wage determination" through a centralized Department of Labor office in Washington D.C..

The "prevailing wage" is the average wage paid to similarly employed workers in the requested occupation, in the same geographic area. The immigration laws require that the hiring of a foreign worker will not adversely affect the wages of U.S. workers working in the occupation in the area of intended employment. To comply with the law, the Department of Labor requires the wages offered to the foreign worker to be at least the prevailing wage in the geographic area of employment.

Employers sponsoring foreign employees for H-1B's, H-2B's, E-3's, and for employment-based green cards must establish that the wage offered is at least as high as the prevailing wage. In some instances, the employer can rely on published date to make to determine the prevailing wage themselves. In other instances (i.e. the employment-based green card process), employers must submit a request to the Department of Labor to make a Prevailing Wage Determination.

Up until now, employers submitted a form online or via fax to the Department of Labor's State Workforce Agency in their own particular state. When this law office sought a Prevailing Wage Determination, we would fax a Prevailing Wage Request form to the California Employment Development Department. If we wanted to recommend a particular job classification or wage level, we would include that supporting documentation with our fax. We would usually get a faxed response within a few days. If our result showed that there was a misunderstanding, etc., we had the name and phone number of the person who made the Prevailing Wage Determination, and we could call and talk to them.

Continue reading "Silicon Valley Employers to Face Slower Process for Work Visas" »

Yesterday U.S. Congressman Luis Gutierrez (D-IL) introduced the Comprehensive Immigration Reform for America's Security and Prosperity Act of 2009 (CIR ASAP). The video clip shows Representative Gutierrez introducing the proposed immigration law alongside members of the Congressional Hispanic Caucus, the Congressional Black Caucus, the Congressional Asian Pacific American Caucus, and the Congressional Progressive Caucus.

Representative Gutierrez characterizes the proposed immigration law as (1) pro-family, (2) pro-jobs, and (3) pro-security. But one of the most important provisions, not mentioned in the video clip, is the Earned Legalization Program for the Undocumented. This provision would allow those undocumented persons, currently in the U.S., to apply for nonimmigrant visa status. To qualify, applicants would need to attest to their contributions to the U.S. through employment, education, military service, or volunteer work. Applicants would pay a $500 penalty fee, and would have to pass criminal and other background checks. After six years, applicants could apply for permanent resident status.

As an immigration lawyer who has seen many people with no immigration options, I applaud Representative Gutierrez for moving the immigration reform debate forwards. Many of the provisions in the proposed legislation (which I will elaborate upon in future postings) remedy legitimate problems in our current immigration system, and are simply the right thing to do. But in the video clip, Representative Gutierrez also quotes Ghandi for the proposition that there simply is no compromise on some fundamental matters. I truly hope that there can be compromise on this proposed immigration law so that we can move towards improving our current immigration system while promoting family unity, jobs, and border security. Potentially divisive issues, such as the earned legalization program, must be open for compromise in order to further the other beneficial provisions.

Today's San Jose Mercury News highlighted the plight of a local Cambodian woman who immigrated to the U.S. as a refugee, and has long been eligible to apply for U.S. citizenship. Ms. Chantel In was born in the 1970's in Cambodia, during the brutal reign of Pol Pot. Her family survived and immigrated to the U.S. as refugees, eventually settling in California. Ms. In has been a U.S. permanent resident (a green card holder) for several years, but has not yet applied for U.S. citizenship. The $675 USCIS application fee is just too high, and Ms. In simply cannot afford it. The San Jose Mercury News included her story as part of their seasonal Wish Book campaign.

Unfortunately, USCIS fees are only expected to go higher. USCIS Director Alejandro Mayorkas recently stated that a 2010 fee increase is likely. USCIS funding relies heavily on the fees generated by applications. Applications, and therefore filing fees, plummeted in 2009 leaving the USCIS with a $164 million shortfall. But filing fees are already high enough to create obstacles to people like Ms. In. The cost for a family of four (two adults and two minor children) to file for an adjustment of status (for a green card) would range from $3220 to over $4000, depending upon the age of the children. That fee does not include additional, non-fee costs such as medical exams for each applicant and photos.

The USCIS does allow applicants to apply for a fee waiver. Applicants must show that they are elderly or disabled, have been receiving Federal means-tested public benefits, are destitute, are living below the Federal Poverty line, or have other extenuating circumstances. If the fee waiver request is denied, the application is returned and the applicant can resubmit it with the fee.

Yesterday I was taken aback when I turned to the editorial page of the San Jose Mercury News, the primary newspaper of Silicon Valley, and found an Op-Ed by Patrick J. Buchanan calling for a moratorium on ALL LEGAL immigration. He argues that the LEGAL immigrants are taking jobs from U.S. workers, and that by barring all U.S. immigration the economy can recover faster.

Legal immigration is not the same as "illegal" immigration. He is not talking about doing something about the high number of undocumented people living in the U.S. By calling for a halt to legal immigration, he would stop the husbands and wives of U.S. citizens from immigrating to the U.S. He would prevent the children and step-children of U.S. citizens from coming to the U.S. He would stop the parents of U.S. citizens from immigrating. He would stop U.S. citizens from adopting children from abroad. He would prevent those who came as refugees from obtaining permanent residence. He would turn away the brilliant minds who qualify to immigrate by being awarded the equivalent of a Nobel Prize.

Continue reading "San Jose Mercury News Publishes Anti-Immigration Op-Ed Calling For Immigration Moratorium" »

Immigrants, or foreign-born U.S. citizens, make up over 50% of Silicon Valley company founders. This, according to the Wall Street Journal article "Start-Up Visas Can Jump Start the Economy", is the evidence as to why Congress should pass an immigration law allowing for start-up visas. According to the article, even though foreign-born residents made up approximately 12.5% of the U.S. population, nearly 40% of technology company founders and 52% of Silicon Valley company founders are foreign-born. If U.S. immigration laws made it easier for bright, entrepreneurial foreign nationals to obtain a work visa to start a new company, then we would see more new business which would lead to more jobs for all.

Right now, immigration laws make it difficult for a foreign national to start their own business while maintaining legal immigration status. This blog has posted before about the Start-Up Visa, and evaluated the current immigration options for those entrepreneurial spirits determined to start a new company. The situation typically originates when foreign nationals come to the U.S. as students to earn a U.S. Bachelor's degree or even a U.S. Master's degree. Upon graduation, a foreign national usually needs a company to sponsor them for a work visa in order to stay and work in the U.S. As I've pointed out in a prior post, an entrepreneur's own company can sponsor them for an H-1B visa, but this route is challenging as the USCIS assumes that H-1B's are for larger companies, and not a one or two employee company. The other nonimmigrant option, the E-1 or E-2 based on a substantial investment or substantial international trade, has several limitations including it only being available for people from certain countries.

The Wall Street Journal article recommends that the requirements for a start-up visa are showing a minimum investment from legitimate sources, such as venture capital firms or angel investors. The article hypothesizes that some start-ups would fail (as start-ups often do), but the visa could continue as long as the entrepreneur continues to raise capital, create jobs, make sales, etc.

Continue reading "The Economic Case for "Start-Up Visas"" »

An earlier blog post "Silicon Valley Employers Need to Prepare for Surprise USCIS Visits" described the "new normal" of USCIS employees or contractors showing up unexpectedly and inquiring about past visa petitions and foreign national workers. A recently held Department of Homeland Security program, titled, "2009 Government and Employers: Working Together to Ensure a Legal Workforce" sheds more light onto the types of visits being conducted.

Ronald Atkinson, Chief of Staff of USCIS' Fraud Detection and National Security (FDNS) office, explained the three types of site visits that are currently being conducted:

1. Risk Assessment Program fraud study. Applicable to any type of benefit program, including family and employment-based visas, this study is part of a joint program between USCIS and ICE (Immigration Customs and Enforcement). Applications and petitions are chosen at random, usually on a post-approval basis, for visits to help in designing profiles of potential fraud.
2. Targeted site visits. These visits take place where fraud is suspected, and consist of a visit to ask questions. Advance notice, including notice to counsel, is supposed to be provided.
3. Administrative site visits. These relate to religious worker and H-1B petitions. They generally are conducted by contractors who know nothing of immigration law. Religious worker visits are performed under the regulations for that category. For H-1B site visits, the contractors have been equipped with a set of specific questions, and all employers/beneficiaries should be asked pretty much the same questions, primarily reaching the issues of whether there's really an employer there, whether the employer knows it filed the petition, and whether the beneficiary is doing the work and receiving the wage indicated on the petition. H-1B visits are done on a post-adjudication basis, and are randomly selected. Each employer should receive only one such visit, but may receive different visits for different sites.

Continue reading "Why USCIS Might Be At Your Door" »