Silicon Valley Immigration Lawyer Blog

Opponents to any comprehensive immigration reform often argue that illegal immigrants are taking jobs away from Americans. The United Farm Workers of America are putting that assumption to the test with their "Take Our Jobs" campaign. Any American who would like a job in agriculture can enter their contact information online, and the UFW will help place them. The online submission section, called "I want to be a farm worker", includes the following note:

"Job may include using hand tools such as knives, hoes, shovels, etc. Duties may include tilling the soil, transplanting, weeding, thinning, picking, cutting, sorting & packing of harvested produce. May set up & operate irrigation equip. Work is performed outside in all weather conditions (Summertime 90+ degree weather) & is physically demanding requiring workers to bend, stoop, lift & carry up to 50 lbs on a regular basis."

Last week the president of the UFW was a guest on Comedy Central's Colbert Report to discuss the work of farm workers, and the UFW's new campaign. He told Steven Colbert that in response to the campaign, a total of THREE American workers had starting working. Americans simply do not want many of the jobs that are currently filled by undocumented immigrants.

The UFW campaign highlights the reality that labor performed by undocumented immigrants is vital to our food industry, and also highlights the need for immigration reform. AgJobs, the Agricultural, Job Opportunities, Benefits, and Security Act sponsored by Senator Dianne Feinstein, and re-introduced in Congress last year, would provide some of the immigration reform needed in this area. AgJobs would provide temporary legal immigration status for experienced farm workers already in the U.S., who committed to continue in farm work for the next five years. These farm workers would need to pay a fine, and undergo background checks. Unless more than three Americans start turning to agricultural work, we need AgJobs.

California Senator Feinstein is amongst a group of Democratic Senators (including Senate Marjoity leader Reid, and Senators Durbin, Schumer, Leahy, and Menendez) that set forth an immigration law reform "proposal" last week, called the Real Enforcement with Practical Answers for Immigration Reform (REPAIR) Proposal. This proposal is not an actual bill, or a proposed bill. It is a "proposal". While it is a purely Democratic proposal, it contains provisions that show a willingness to reach out to Republications and incorporate the immigration reforms critical to any Republican support.

The proposal acknowledges that in order to accomplish any immigration reform, achieving greater border security and improving methods for fighting crimes connected to illegal immigration is a prerequisite to addressing the millions of undocumented immigrants living here. The proposal addresses: (1) increased border enforcement, (2) increased interior enforcement; (3) biometric identification and employment verification; (4) family and employment visas; and (5) registration and legalization of the millions of undocumented immigrants living here.

As an immigration lawyer often representing highly-skilled foreign nationals, the most exciting provision is the change for graduates of U.S. universities. Graduates of U.S. universities obtaining advanced degrees in the fields of science, technology, engineering, or mathematics, who have an offer of employment from a U.S employer in a field related to their degree, would be eligible for a green card. As has been said repeatedly on this blog, it only makes sense to allow these folks to remain in the U.S. and use their intelligence and knowledge to benefit the U.S.

Continue reading "California Senator Supports Immigration Law Proposal" »

Today the San Francisco Board of Supervisors pushed for a boycott of Arizona and its businesses based there, to protest the new immigration law signed last Friday. The new immigration law requires state and local law enforcement to question individuals about their immigration status if the officer has a "reasonable suspicion" that they are undocumented. An individual who cannot provide proof of legal status would be subject to arrest. The new law essentially compels law enforcement to conduct racial profiling of all people in the state, and will lead to people being questioned and detained for looking foreign.

In opposition to the new law, the San Francisco Board of supervisors is calling for San Francisco to end any and all contracts with Arizona-based companies and to stop, doing business with the state. Supervisor David Campos told a City Hall rally, "We want to send a message. . . . There are consequences when you target a whole people." City Attorney Dennis Herrera also called for a wide-ranging boycott of Arizona, and pledged to have attorneys in his office work with the city to identify contracts with Arizona companies and help break those contracts where possible.

San Francisco is not the one calling for a boycott. Within hours of the new law being signed, the American Immigration Lawyers Association (AILA) Board of Governors voted to move the Association's Fall 2010 conference, which was to be held in Arizona. AILA's Board President explained that AILA could not spend its funds in a state that dehumanizes the very people that many AILA members represent.

Arizona is already under fire for signing into law a new immigration law that President Obama characterized as "misguided" and that would "undermine basic notions of fairness that we cherish as Americans." Obama said he instructed the Justice Department to "examine the civil rights and other implications" of the new law.

The new immigration law requires state and local law enforcement to question individuals about their immigration status if the officer has a "reasonable suspicion" that they are undocumented. An individual who cannot provide proof of legal status would be subject to arrest. The new law essentially compels law enforcement to conduct racial profiling of all people in the state, and will lead to people being questioned and detained for looking foreign.

What would cause an officer to have reasonable suspicion that a person is "undocumented"? The color of their skin? Their accent? They way they are dressed? The work that they are doing? The kind of car they drive?

When I first heard about this new law, I was reminded of a public service announcement that ran soon after the September 11 attacks, called "I am an American". Created by the Ad Council, it features Americans of different races, accents, ages, and dress stating "I am an American." It's a reminder that we really cannot determine who is American and who is undocumented, simply from appearances.

As an immigration lawyer, I've met U.S. citizens of all different ethnicities, occupations, and varying levels of English proficiency. I've also met undocumented immigrants with white collar jobs, who look and talk like they could be from the Midwest (where I am from.) When I meet a potential new client, I cannot tell whether they are a U.S. citizen, a U.S. permanent resident, a legal nonimmigrant, or an undocumented immigrant, until I hear their story. I wonder how the Arizona police will decide who creates a 'reasonable suspicion" of being undocumented?

Yesterday I had the benefit of joining a group of local San Francisco and Silicon Valley immigration lawyers and government staffers to meet with the USCIS Director, Alejandro Mayorkas. He held a town-hall style meeting at the San Francisco USCIS office, to provide an overview of his goals for the USCIS and to hear our concerns of working with the USCIS. Overall, as an immigration lawyer, I came away truly enthusiastic about the direction I hope we will see the USCIS headed. If the Director can put his goals into action, then applicants and lawyers should see a more positive interaction with the USCIS, and we should see the USCIS heading away from the "culture of no" that has pervaded the USCIS over the past several years.

The Director had no prepared remarks, and began by stating that he hoped everyone would feel comfortable being outspoken. As a Cuban immigrant himself, he explained that he wants the U.S. immigration system to be "welcoming". He wants adjudicators to understand that each case is about someone's life and the lives of their family, and each case needs to be treated as such. The Director rhetorically asked how the USCIS can be welcoming while also being vigilant against fraud. His answer was that a vigilant approach permits the USCIS to be welcoming and embracing.

The Director acknowledged that a government agency that is essentially a public service agency cannot serve without reaching out to the community. He highlighted the USCIS' Office of Public Engagement, as one avenue to bridge the divide between the USCIS and the community. He also acknowledged that the USCIS cannot govern by edict, as they effectively do when they publish new memos interpreting critical statutes and regulations without consulting those most affected. He specifically acknowledged the troublesome Neufeld Memo of January 2010 and discussed in an earlier post.

Continue reading "USCIS Director Meets With Silicon Valley Lawyers" »

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" »

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.

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"" »

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.

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.

Today's San Francisco Chronicle reports on the city's vote to change its policy toward undocumented juvenile immigrants. For almost twenty years San Francisco has declared itself a "sanctuary city", meaning that it will not use city funds to help enforce immigration law by reporting undocumented immigrants. But "sanctuary" does not apply to people arrested and accused of felonies, and the city refers them to Immigration and Customs Enforcement (ICE). Until last summer, the city did not apply this practice to juveniles accused of felonies, and refused to refer juveniles in custody to ICE.

Last summer, San Francisco Mayor Gavin Newsom implemented a new policy requiring the police to contact ICE whenever they arrest a juvenile on felony charges who they suspect is in the United States illegally. Since the policy took effect last summer, more than 100 undocumented juveniles have been referred to federal immigration authorities.

Mayor Newsom implemented this policy after several incidents highlighted the problems with not referring juveniles. The most horrific was the 2008 triple homicide committed by a suspected gang member and an undocumented immigrant from El Salvador, who had been picked up as a juvenile by the San Francisco police but not referred to immigration authorities. The San Francisco Chronicle also uncovered incidents of sending young Honduran crack dealers to a group home in Los Angeles, from which they just walked away one day, as well as incidents of the city using taxpayer money to fly accused juveniles back to their home countries instead of referring them to ICE.

Continue reading "San Francisco Changes Immigration Reporting Policy" »