Silicon Valley Immigration Lawyer Blog

Startup Visa Would Help Silicon Valley

2010-02-25T06:59:38Z

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."

]]> The Startup Visa Act is actually a modification of the current EB-5 category. The EB-5 permits foreign nationals who invest at least $1 million in the U.S., and thereby create 10 jobs, to obtain permanent residence. Instead of adding additional immigrant visas for this program, the Startup visa would draw from the visas already allotted annually under the EB-5 program. While 10,000 visas are allocated annually for the EB-5 category, less than half were used in FY 2009.

Understanding the importance of providing a startup visa comes down to one simple question: Do we want the bright and innovative foreign entrepreneurs who graduate from U.S. universities to create their business in the U.S., or in another country? As I've discussed in earlier posts, a start-up visa is much more than another visa type allowing foreign nationals to stay and work in the U.S. Providing a visa for entrepreneurs opens up a new avenue for creating businesses and generating jobs. Not only would a start-up visa result in new companies, new jobs, and a boost to the economy, etc., but it would also help the U.S. in maintaining its global stance in technological and innovative advancement.

Is Silicon Valley Losing its Edge by Losing its Immigrants?

2010-02-11T06:43:17Z

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 Go to Your San Francisco/San Jose Immigration Interview . . .

2010-01-28T22:11:58Z

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)

San Francisco Immigration Station Marks 100th Anniversary

2010-01-22T07:13:26Z

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 "Wiser" Lou Dobbs on Immigration Reform

2010-01-13T22:47:49Z

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.

National Human Trafficking Awareness Day is January 11, 2010

2010-01-09T07:34:55Z

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 .

Silicon Valley Employers to Face Slower Process for Work Visas

2009-12-31T04:59:33Z

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.

]]> All this will change on January 1, 2010. Instead of individual state workforce agencies making prevailing wage determinations, all such determinations will be made by one Department of Labor office in Washington D.C. Until the Department of Labor puts this process online, employers must MAIL all Prevailing Wage Requests on ETA Form 9141 to:

U.S. Department of Labor
Employment and Training Administration
National Prevailing Wage and Helpdesk Center
Attn: PWD Request
1341 G Street, NW
Suite 201
Washington, DC 200053142

If employers include their e-mail address on the Form 9141, National Prevailing Wage and Helpdesk Center (NPWHC) will respond via e-mail. The NPWHC states that they will handle all prevailing wage requests on a first-in first-out system. They have not provided an estimate as to how long it should take, but recommend that employers submit it at least 60 days before they need it.

I did a double take when I read 60 days. Employers are used to obtaining prevailing wage requests in no longer than a week. If it does in fact take 60 days, many employers and employees will miss critical deadlines while waiting for a prevailing wage determination. Since determining the prevailing wage is usually the first step in the employment-based green card process, employers who wait to begin this process may inadvertently wind up filing their PERM application too late for their employee to take advantage of legal provisions that allow H-1B employees to renew their H-1B status beyond six years if a PERM case has been pending long enough.

Another issue with the new NPWHC system is that employers will not be able to submit additional documentation with the form. Employers will not be able to recommend a particular occupation or wage level. Additionally, instead of just picking up the phone and talking to the analyst who made the determination, employers will have to follow a formal process and mail in appeals to the prevailing wage determination. Overall, while this new process should create uniformity in decisions, it will undoubtedly be slower and eliminate access to analysts.

U.S. Congressman Introduces Comprehensive Immigration Reform

2009-12-17T03:29:52Z

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.

Silicon Valley Immigrants Can't Afford High USCIS Fees - Which Will Only Get Higher

2009-12-16T06:58:12Z

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.

San Jose Mercury News Publishes Anti-Immigration Op-Ed Calling For Immigration Moratorium

2009-12-11T06:33:12Z

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.

]]> As an immigration lawyer who follows both sides of the immigration debate, I would not have been surprised to read a call for a moratorium on all business immigration. After all, he is concerned about jobs, unemployment, and the economy. We all share these concerns. But the answer is not a moratorium on all immigration. Buchanan ignores the economic reality that immigrants start businesses and employ Americans. In an earlier post, I noted statistics from the Wall Street Journal that immigrants, or foreign-born U.S. citizens, comprise over 50% of Silicon Valley company founders. I recently helped two Silicon Valley entrepreneurs obtain business visas so they could continue to build their business. If they were not here on business visas, their business would simply be based in another country. There would not be two U.S. citizens filling their jobs - because the jobs would not exist here. As these two entrepreneurs grow their business, they will create jobs. Furthermore, these two entrepreneurs are creating innovative new technology.

Cutting off all immigration to the U.S. will never be the right answer to helping America's economy. Cutting off all immigration would devastate families, and actually harm U.S. economic growth and innovation.

The Economic Case for "Start-Up Visas"

2009-12-03T02:00:44Z

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.

]]> A visa that acknowledges that a company might fail while still allowing the visa to continue is a RADICAL concept for the USCIS. In my experience as an immigration lawyer, it's actually too radical. Now, more than ever, sponsoring companies must submit excessive documentation of their continued viability as a business. Newer companies must routinely submit business plans, audited financial statements, Federal tax returns, proof of paying employees, contracts or invoices showing to show business activity, and more. The USCIS requests this documentation to establish: 1) that the company is really a legitimate company conducting business, and 2) that the company is viable and will be able to employ the foreign national throughout the term of his visa.

Fortunately, the USCIS does not make laws. Congress makes the laws. Although this particular recommendation is contrary to the USCIS mindset, we should continue to put all ideas out there as to how a start-up visa could work. My recommendation as to how it could work can be found in the earlier post.

A start-up visa is much more than another visa type allowing foreign nationals to stay and work in the U.S. Providing a visa for entrepreneurs opens up an avenue for creating businesses and generating jobs to a whole new group of smart, motiviated people. Not only would a start-up visa result in new companies, new jobs, a boost to the economy, etc., but it would also help the U.S. in maintaining its global stance in technological and innovative advancement. If the U.S. Congress does not create a "start-up visa", the bright entrepeneurs that graduate from U.S. universities will simply go to other countries, such as Canada, that already have this type of visa.

Why USCIS Might Be At Your Door

2009-11-21T07:10:00Z

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:

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.

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.

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.

]]> All employers should develop a plan in the event of a site visit. Several steps employers should take are provided on the earlier blog post. Employer should also consider contacting an immigration lawyer to assist them with developing a plan.

Information about the DHS program was compiled from AILA InfoNet Doc. No. 09112060 (posted Nov. 20, 2009).

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

2009-11-14T06:37:31Z

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.

]]> Some H-1B workers are fortunate enough to be paid well above the current prevailing wage. If those employees take a pay cut, and all similarly situation employees take a pay cut, they may still earn above the prevailing wage. In those cases, an employee would not need to take a corresponding reduction in hours.

With an H-1B, it may not be enough to simply reduce the employee's hours to the corresponding wage. Depending upon the specific facts, an employer may be required to also file a new Labor Condition Application with the Department of Labor and may also be required to file an amended H-1B petition. Employers should check with an immigration lawyer when reducing the salary of an H-1B worker.

Silicon Valley Hiring Fewer H-1B Workers Amid Downturn

2009-11-08T00:55:04Z

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.

Condoleezza Rice Advises Silicon Valley Chamber of Commerce That Immigration Reform Needed

2009-11-06T21:08:20Z

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.