Silicon Valley Immigration Lawyer Blog

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"" »