Silicon Valley Immigration Lawyer Blog

Silicon Valley employers who want to sponsor foreign employees for a green card may have to delay the process. The U.S. Department of Labor (DOL) announced last week that it will temporarily suspend processing of prevailing wage requests for permanent labor certification (PERM). This move is so that the DOL can comply with a U.S. Federal District Court order to redo over 4000 prevailing wage determinations for the H-2B category. The DOL will only resume prevailing wage determinations for PERM applications once the court-ordered H-2B redeterminations are completed. The DOL anticipates this will not be before August 31, 2011.

Employers wishing to sponsor a foreign national for an employment-based green card are often required to test the U.S. labor market through a regulated process referred to as PERM. As part of the PERM process, employers must recruit for the permanent position being offered according to specific recruitment methods established by the DOL. The wage offered for the position must be the higher of either: (1) the wage that the employer pays to workers in similar positions in the area of intended employment, or (2) the prevailing wage for the occupation in the area of intended employment, as determined by the DOL. The DOL issues prevailing wage determinations to ensure that the wages of U.S. workers are not depressed by lower-paid foreign workers. All PERM applications require a prevailing wage determination from the DOL. Most employers obtain the prevailing wage determination at the beginning of the PERM process, prior to starting any recruitment. This way, employers can be sure that the wage offered in the recruited position complies with the DOL regulations.

Continue reading "Employers May Have to Delay Starting the Green Card Process" »

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."

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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" »

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" »

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.

Here's a common scenario: Your Silicon Valley employer sponsors you for an H-1B visa, and then sponsors you for an employment-based green card. How long it takes to actually get your green card depends on your priority date (the date your employer submitted the first application), your visa preference category, and your country of chargeability (usually your country of birth). It can take a relatively short time, to several years.

Each year 140,000 employment-based green cards can be issued. Over the years well over 140,000 annually have applied, resulting in a long queue. Once your priority date becomes "current", you can then apply for a green card. About 85% of the 140,000 green cards go to people currently living in the U.S. who apply for an "adjustment of status". The remaining 15% go to people seeking to immigrate from abroad. The USCIS estimates that there are currently 234,000 pending employment-based adjustment of status applications pending.

Until recently, the only way to estimate how long it would take for your priority date to become "current" was to view the Department of State's monthly Visa Bulletin. The Bulletin shows the current priority dates within each preference category. You can view the Visa Bulletins over several months and track the movement in particular categories.

Recently the USCIS started providing more detailed information by publishing sets of charts. The charts track the USCIS' total pending inventory of applications for employment-based adjustment of status. The charts show how many pending adjustment of status applications in each preference category have priority dates in a given month and year. You can use the chart to determine how many applicants in your preference category are ahead of you in line for a visa number by adding up the number of cases with an earlier priority date than your own.

For example, the chart below shows the 1st, 2nd, and 3rd preference categories. Suppose your priority date is January 2003, and you are approved for 2nd preference. Using the chart below you can see that there are six other adjustment of status applications with the same priority date. You can add up how many 2nd preference applicants have an earlier priority date by adding up all the numbers starting at the beginning of the table, and ending with December 2002. In this case, there would be 130 applications with a priority date earlier than yours.

I-485 USCIS Partial Chart

Continue reading "Employment-Based Green Card Waiting Times Explained by USCIS" »