Silicon Valley Immigration Lawyer Blog

Former Palo Alto resident Yong Li is apparently similar to many Chinese-born immigrants leaving Silicon Valley to return to China. This weekend's San Jose Mercury News highlighted his situation in an article titled "Silicon Valley Brain Drain: Immigrant Chinese Return to Homeland to Pursue Entrepreneurial Dreams". Mr. Li left his family in Palo Alto to start up a pharmaceutical company in Tianjin, China, with the financial backing of the Chinese government. He is representative of a wave of highly skilled immigrants returning to China to start companies.

According to the article, Chinese recruiters regularly come through Silicon Valley targeting highly skilled and educated Chinese immigrants who have lost jobs, and who just graduated from college and cannot find jobs. The timing is good for recruiters, as the U.S. economy continues downward and venture capital funding evaporates. Chinese recruiters are selling the Chinese immigrants on prospects of China's large and growing market, and on the Chinese government's deep pockets to fund and assist new companies. The growing anti-immigrant sentiment accompanying record-high unemployment in the U.S., makes these offers even more attractive.

Surely there are many people who will cheer this news, and see it as cutting out some of the competition for already scarce jobs. This view is short-sighted, and misses the significance of a "Brain Drain". I have previously posted on the potential effects of talented immigrants leaving the U.S., and on the importance of reforming U.S. immigration laws to encourage the "best and brightest" to stay.

Although China turns out thousands of engineers and scientists from its universities each year, we have to ask ourselves why Chinese recruiters are coming to the U.S., and specifically to Silicon Valley to recruit. The Mercury News article states that "it does not have deep ranks of seasoned scientists and technologists." One Chinese national who returned is quoted as stating that finding qualified talent has not been easy. Lack of experienced talent is surely not the only reason, and we should recognize that part of the reason that Chinese recruiters come here is to seek out those who have learned and gained experience in a creative, open, and innovative culture unique to Silicon Valley.

This week the U.S. Congress headed towards a new immigration law that would allow spouses of U.S. citizens to continue, or even begin the green card process, even if their U.S. citizen spouse has passed away. To date, the United States Citizenship and Immigration Service (USCIS) has taken the harsh approach that if the U.S. citizen petitioner died, the pending green card application died as well. This harsh approach resulted in tragic consequences of widows facing deportation after the death of their spouse. The bill Congress passed this week would allow surviving spouses to apply for a green card for themselves and their children, regardless of when their spouse died or how long they were married. President Obama is expected to sign it into law.

Immigration law provides for the foreign national spouse of a U.S. citizen to apply for a green card based on being married to a U.S. citizen. When the marriage is less than two years old, the foreign national receives a "conditional" green card. Shortly before the two-year anniversary of obtaining the "conditional" green card, the couple files a joint petition to remove the "condition". If the couple is no longer married or cannot submit a petition jointly, the foreign national spouse may still be able to submit the petition under various exceptions. This "conditional" green card process is supposed to help prevent and discover sham marriages, or marriages entered into primarily to obtain a green card. Entering into a sham marriage for a green card is a federal crime that can result in a prison term and fines.

Continue reading "Green Card Bill Passes for Widows of U.S. Citizens" »

Today's San Francisco Chronicle reports on the city's vote to change its policy toward undocumented juvenile immigrants. For almost twenty years San Francisco has declared itself a "sanctuary city", meaning that it will not use city funds to help enforce immigration law by reporting undocumented immigrants. But "sanctuary" does not apply to people arrested and accused of felonies, and the city refers them to Immigration and Customs Enforcement (ICE). Until last summer, the city did not apply this practice to juveniles accused of felonies, and refused to refer juveniles in custody to ICE.

Last summer, San Francisco Mayor Gavin Newsom implemented a new policy requiring the police to contact ICE whenever they arrest a juvenile on felony charges who they suspect is in the United States illegally. Since the policy took effect last summer, more than 100 undocumented juveniles have been referred to federal immigration authorities.

Mayor Newsom implemented this policy after several incidents highlighted the problems with not referring juveniles. The most horrific was the 2008 triple homicide committed by a suspected gang member and an undocumented immigrant from El Salvador, who had been picked up as a juvenile by the San Francisco police but not referred to immigration authorities. The San Francisco Chronicle also uncovered incidents of sending young Honduran crack dealers to a group home in Los Angeles, from which they just walked away one day, as well as incidents of the city using taxpayer money to fly accused juveniles back to their home countries instead of referring them to ICE.

Continue reading "San Francisco Changes Immigration Reporting Policy" »

Earlier this month Silicon Valley was abuzz with the exciting news that two locals, Elizabeth Blackburn and Carol Greider had won the prestigious Nobel Prize in medicine. The two were honored for their work in DNA replication, along with Jack Szostak of Harvard who also partnered in the research. Also noted in reports was that Elizabeth Blackburn is a dual citizen of the U.S. and Australia, and that Jack Szostak was born in the United Kingdom.

The significance of these prize winners' immigration backgrounds is highlighted in an article from this week's Wall Street Journal, "Immigrant Scientists Create Jobs and Win Nobels", by the President of the Massachusetts Institute of Technology, Ms. Susan Hockfield. The article digs into the immigration history of recent Nobel Prize American winners. While eight out of nine of this year's winners in chemistry, physics and medicine are American citizens, four of the Americans were born outside of the U.S. and only came here as graduate or post-doctoral students, or as scientists. According to the article, they came because the U.S. system of higher education and advanced research has been a magnet for creative talent.

U.S. immigration laws need to encourage drawing in this global talent, as opposed to obstructing it with arcane, protectionist immigration laws. The U.S.' role in global innovation, as well as the U.S. economy will benefit. According to the article, of the 35 young innovators recognized this year by Technology Review magazine for their exceptional new ideas, only six went to high school in the United States. From MIT alone, foreign graduates have founded an estimated 2,340 active U.S. companies that employ over 100,000 people.

The immigration laws, however, do not encourage foreign students to stay after graduation and put their newly acquired knowledge to work in the U.S. A foreign national applying for a student visa at a U.S. Consulate abroad will be denied a visa if the U.S. Consular Officer does not believe the student will return to their home country upon graduation. To further complicate matters, if a foreign student does find U.S. employment it is often in capacity as an H-1B specialty worker and the student and their prospective employer will have to compete for one of only 65,000 annual H-1B visas. Many graduate and post-doc students come to the U.S. on a J-1 visa, which often requires the visa holder to return to their home country for two full years before applying for permanent residence in the U.S.

Continue reading "Immigration Laws Must Allow the Best and the Brightest Into the U.S. " »

The New York Times recent article, "U.S. Can't Trace Foreign Visitors on Expired Visas" highlights the case of a former Silicon Valley teen, now facing criminal charges for attempting to use weapons of mass destruction in Dallas. Mr. Hosam Maher Husein Smadi, a 19 year old Jordanian citizen, came to the U.S. in 2007 on a six month tourist visa. He briefly stayed in San Jose and Santa Clara, California, before moving to Texas. Last month Mr. Smadi was arrested after placing what he believed to be a car bomb in the garage of Dallas high-rise. The FBI had been monitoring Mr. Smadi, and provided him with the inert car bomb.

The New York Times article uses this case to highlight the problem with immigration enforcement when legitimate visitors stay longer than authorized. Mr. Smadi entered the U.S. legally, but most likely overstayed his visitor's visa by at least 18 months. Most foreign nationals wishing to visit the U.S. as a tourist or on brief business must obtain a visitor's visa at the U.S. Consulate in their home country. At the border, the Customs and Border Protection officer will often permit a tourist to stay in the U.S. for up to six months. Tourists from many countries with low rates of visa fraud and low rates of visa overstays can come to the U.S. without first obtaining a visitor's visa, but they can only be admitted up to 90 days.

The article highlights the problem of visa overstays by using a shockingly misleading statistic that last year 2.9 million temporary visitors legally entered the U.S. but never "officially checked out". This statistic allows readers to presume that all those visitors who stay longer than initially authorized are here illegally. To the contrary, many visitors come and find legal employment, decide to go to school, experience a whirlwind romance and decide to marry, or simply decide to tour the U.S. longer. It is perfectly legal and common to apply for a "change of status" to a different immigration status, such as to a temporary professional worker (H-1B), or to a student (F-1, J-1). Those who wind up married to a U.S. citizen can apply for an "adjustment of status" and begin the green card process. Those who want to stay longer than six months can apply for an "extension of status". The figure does not mean that 2.9 million people entered the U.S. and are now here illegally. Those that applied to change or extend their status would not have "checked out" yet.

Continue reading "Charges Against Former Silicon Valley Teen Highlight Immigration Enforcement Issues" »

Suppose a U.S. government agent walks through the front door of your Palo Alto start-up, and tells the first employee seen that he is there to speak with HR about the company's H-1B employee. The employee politely informs the agent that there is no HR - it's a "start-up". The agent then studies their own copy of the H-1B petition, and states he needs to speak with the person who signed it. Of course this person (founder, co-worker, Board member) is not in the office. Is your company prepared for this scenario?

The USCIS has a division called the Office of Fraud Detection and National Security (FDNS). Created in 2004, their purpose is to deter and combat immigration benefit fraud, and to assure benefits are not granted to people who threaten national security or public safety. They currently have approximately 650 staffers throughout the U.S., and have contracted with additional private investigation firms. They are now targeting the H-1B program. The Vermont Service Center has forwarded about 20,000 cases to the FDNS, and it is presumed that the California Service Center has forwarded a comparable number.

FDNS visits are typically unannounced, and occur either at the employer's principal place of business or at the H-1B employee's worksite. The purpose is to verify information contained in a particular H-1B petition. The FDNS officer will request to meet with an HR representative or with the person who signed the H-1B petition. The FDNS officer will have a copy of the petition. They will request specific information about the company, including: the employer's business, the business locations, the number of employees, the H-1B worker's job title, job duties, work location, and salary. The FDNS officer may also request to view the company's federal tax returns, quarterly wage reports, and the H-1B employee's recent pay stubs and last W-2.

The FDNS may then request a tour of the employer's facility and may take photographs. They may also request to interview the H-1B employee, and even the H-1B's manager or a colleague.

Employers should take the following steps to prepare for FDNS surprise visits:

Continue reading "Silicon Valley Employers Need to Prepare for Surprise USCIS Visits" »

Like most H-1B employers, Silicon Valley employers need to start over-documenting their H-1B petitions and increasing the material provided about the sponsoring employer, as well as about the employee and the proposed job. Recent reports of fraud in the H-1B program, as well as Senator Grassley's vocal proposals to tighten screening of H-1B employers have cast a cloud of fraud onto the H-1B program.

The cover article in the October 12, 2009 Business Week issue is called "America's High-Tech Sweat Shops: How U.S. companies may contribute unwittingly to the exploitation of foreign workers". This article highlights the various ways in which some H-1B employers have abused the visa system, and taken advantage of unknowing foreign nationals seeking work in the U.S. Fraud ranges from employers: charging potential H-1B workers exorbitant fees as high as $15,000 to submit visa applications; allowing potential H-1B workers to pay fees and obtain an H-1B visa only to come to the U.S. and find that the employer does not have a paying job for them; siphoning off H-1B employees' wages; failing to pay H-1B employees between contract jobs - also called "benching"; to employers claiming that an H-1B worker is employed in a low-wage metropolitan area so that a lower wage can be paid - but actually employing the H-1B worker in a higher wage area.

Unfortunately, the Business Week article is just one of several recent highlights of H-1B fraud. Last week Senator Grassley (R-Iowa) wrote a letter to the new head of the USCIS, Alejandro Mayorkas, pushing for tighter restrictions on H-1B employers. His letter referenced the USCIS' 2008 internal assessment of compliance in the H-1B program. Although the 2008 USCIS report showed a rate of error in H-1B applications of almost 20%, Senator Grassley characterized these errors as fraud, whereas only 13% were found to be fraud and 7% were considered to be technical errors. In his letter to Director Mayorkas, Grassley requested more information from petitioning employers to assure that work is waiting for H-1B employees and they will not be "benched".

Continue reading "Silicon Valley H-1B Employers Will Face Tougher Challenges in Light of Fraud Reports" »