Silicon Valley Immigration Lawyer Blog

The first day to submit H-1B applications for the 2010-2011 fiscal year is next Thursday, April 1st. Here in Silicon Valley, I've been getting calls from entrepreneurial foreign nationals wanting to know if they can start their own business and get an H-1B for themselves. Up until January of this year, I've always explained that "yes", if you set up a corporation, the corporation can sponsor you as its employee. This is based upon established tenets of corporate law, as well as case law, that a corporation is a separate legal entity from its owner. As an immigration lawyer, I've successfully represented H-1B applicants who have done just this.

But this past January, the USCIS took it upon themselves to redefine what constitutes an "employer-employee" relationship for purposes of obtaining an H-1B visa. The USCIS acted like they were Congress, and essentially created a new immigration law modifying the meaning of "employer". They did this via internal USCIS Memorandum, and by adding sections to their Adjudicator's Field Manual.

The USCIS' new meaning of an "employer-employee" relationship eliminates the possibility of the majority shareholder of a corporation from sponsoring themselves. This is a dramatic change. The new meaning focuses primarily upon whether an employer has the right to control an employee's employment. In a footnote within the Memorandum (footnote 9), the USCIS acknowledges an older immigration case that held that a sole stockholder of a corporation can be employed by that corporation, since the corporation is a separate legal entity from its owners. But the next sentence of that same footnote goes on to argue that an H-1B employee who owns a majority of the sponsoring company, and who reports to no one but him or herself may not be able to establish an "employer-employee" relationship because the required "control" could not be established.

Continue reading "Before You File Your H-1B Make Sure you are an "Employee"" »

New immigration laws proposed last week by Senator's Charles Schumer (D-NY) and Lindsay Graham (R-NC) present dramatic reforms. The most notable are the opportunity for millions of undocumented immigrants to legalize their immigration status, and the introduction of a biometric Social Security card for EVERYONE, including U.S. citizens.

The two Senators set forth their bi-partisan immigration reforms in last Friday's Washington Post article, "The right way to mend immigration." The plan is based upon four pillars: (1) a biometric Social Security card that employers would need to swipe to verify an employee's authority to work in the U.S.' (2) further resources towards border security and interior enforcement; (3) more options for both skilled and unskilled temporary workers, and (4) a pathway to legalization for the approximately 11 million undocumented immigrants living here.

One of the proposals would award green cards to immigrants who receive a Ph.D. or a Master's degree in science, technology, engineering, or math from a U.S. university. This proposal is commendable, and this blog as advocated for such a reform. As stated before, it makes no sense to allow the best and brightest from across the world to be educated at our universities, and to then force them to leave the U.S. instead of remaining and using their skills.

Surely legalization will be the most hotly-contested proposal. The Senators describe the path to legalization as a "tough but fair path forward". According to the proposal, they would be required to "admit they broke the law and to pay their debt to to society by performing community service and paying fines and back taxes." They would also undergo background checks (as all immigrant applicants do), and be proficient in English. Paying fines and back taxes have always been a hallmark of legalization programs, but forced community service is new. Does community service mean picking up trash on the side of the highway while wearing an orange vest? Helping in a soup kitchen? Do you owe the same debt to society if you've been here illegally for two years v. twenty years? Also, as an immigration lawyer, I don't know whether I would advise a nineteen-year old who was brought here as a baby to "admit that they broke the law".

Continue reading "Immigration Law Reforms Would Legalize Millions" »

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.