Silicon Valley Immigration Lawyer Blog

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" »

Across Silicon Valley and the rest of the U.S., many employers are avoiding layoffs by reducing employee hours or by cutting salaries. However, H-1B visa holders, and their employers, can run afoul of U.S. immigration laws if the salary is cut without a corresponding reduction in hours.

An H-1B employer must attest to the Department of Labor, that the employer is paying the H-1B employee the higher of either: 1) the prevailing wage for the same occupational classification in the same area of employment, or 2) the actual wage level paid by the employer to all employees with similar experience and qualifications for the same job. When submitting the H-1B petition, the employer must state the number of hours per week that they will employ the H-1B worker. So if the prevailing wage for a software engineer in the San Jose metropolitan area is $40/hr., then for a full-time job the annual salary would be $83,200. This would be the minimum that the employer would need to pay annually, and an employer could always pay more.

Suppose your Palo Alto employer informs you that all professionals are taking an across-the-board 15% pay cut. If the prevailing wage for your job is $83,200, a 15% pay cut would lower your salary to $70,720. If your employer started paying you only $70,720 annually while you were still working full-time, your employer would be violating the H-1B regulations, and you could be in violation of your H1-B status. However, if your hours were reduced to only 34 hours per week, then at $40/hour you would earn $70,720 annually. Therefore, an employer and its H-1B employee could properly follow the H-1B regulations by reducing the employee's hours enough to still comply with the prevailing wage. Of course, in this example, the H-1B employee would only be able to work 34 hours per week.

Continue reading "A Pay-Cut Could Mean "Part-Time" for H-1B Workers" »

More than seven months after Silicon Valley companies could first submit new H-1B applications, several thousand slots remain open. Earlier this week the USCIS reported that approximately 52,800 H-1B cap-subject petitions, and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. The annual cap for H-1B's is 65,000, plus an additional 20,000 for workers with a Master's degree or higher from a U.S. institution.

This is the lowest number since 2003. The past few years has seen the cap reached within the first few days that companies could submit petitions. The reasons vary. As reported in the San Jose Mercury News, Silicon Valley tech insiders attribute the lower numbers to the economic downturn. Companies are just hiring fewer workers.

Another reason is based on the restrictions placed on financial companies that received money from the Troubled Asset Relief Program, or TARP. Restrictions formed companies like Bank of America to rescind job offers to foreign professionals.

Of course politics plays a role as well. Iowa Senator Charles Grassley has criticized tech companies for not protecting jobs of U.S. citizens over those of foreigners as the unemployment rate reaches highs not seen in decades. The Iowa Republican and Sen. Richard Durbin, an Illinois Democrat, in April reintroduced a bill that would require companies to do everything they can to hire Americans before seeking H-1B visas.

For years the Silicon Valley attitude was to seek out the most talented people, regardless of whether they needed to be sponsored for an H-1B or a green card. However, as reported in the San Jose Mercury News article, some employers feel they should be hiring a U.S. worker with the unemployment statistics so high. That, coupled with the costs involved of sponsoring an H-1B worker, and the new likelihood of receiving a surprise visit from the Office of Fraud Detection and National Security , and it's not a surprise that the H-1B numbers are down this year.

Former Secretary of State and advisor to two presidents, Condoleezza Rice, addressed the San Jose Silicon Valley Chamber of Commerce earlier this week at their annual fundraiser. She warned about the need for immigration reform, explaining "The United States of America had better reform its immigration policy to make sure that the most ambitious people in the world still want to be a part of us. We are a society of immigrants, and if we ever think that we can close our doors, we will suffer the same fate of those in Europe and other places."

As an immigration lawyer, I have posted before about the need for our immigration laws to encourage the world's best and brightest to come and stay in the U.S. As for Europe, many European countries have far stricter immigration laws than the U.S. While I don't know what the sorry "fate" is that Former Secretary of State Rice was alluding to in her address, stricter immigration laws are not the answer to raising the U.S. out of its current economic downturn and high unemployment.

Google CEO, Eric Schmidt, sharply critized U.S. immigration policy during a Stanford University roundtable discussion last week. Stanford University President John Hennessy participated in the roundtable and offered criticism as well. Eric Schmidt questions how U.S. immigration laws allow us to take the smartest people who are going to build companies and pay taxes, and then have them do it in another country. He argues that we bring the smartest people in the world to Stanford, educate them, and then kick them out of the country.

John Henessy explained that graduate programs rely on foreign students because U.S. K-12 does not produce enough students for the graduate level. He also pushed for the Dream Act. The Dream Act would help all the students who were brought to the U.S. illegally as small children. Right now, these students attend universities, and then cannot even begin a career because they are in the U.S. illegally. The Dream Act would provide an avenue for these students to obtain legal immigration status.

Here's an excerpt of the Stanford Roundtable discussion.