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" »

As a Silicon Valley immigration lawyer, I received several e-mails from clients and colleagues last week excited about the blog post by the USCIS Director concerning visa options for entrepreneurs, and what it could mean. I often meet with entrepreneurial foreign nationals who want to start their own company but first need to explore their visa options. As our immigration laws don't provide for any type of "start-up visa", their options are usually limited.

Foreign national entrepreneurs still don't have a start-up visa. But based on USCIS Director Mayorkas' recent blog post, maybe we're inching closer to squeezing the realities of Silicon Valley style start-up ventures into the confines of U.S. immigration laws, currently viewed by the USCIS as if they were developed only for traditional, large corporate businesses. His blog post, followed by a joint announcement with U.S. Secretary of Homeland Security Janet Napolitano, and subsequent USCIS Fact Sheets put an entrepreneurial "slant" on current immigration laws. Mayorkas' post and the joint announcement made it sound like existing visa categories could now be used for foreign entrepreneurs wishing to start new U.S. companies.

However, no one has announced anything new and there have been no new laws passed by Congress regarding visas for entrepreneurs. Mayorkas and Napolitano simply highlighted how current visa categories could be used for immigrant entrepreneurs.

Continue reading "Immigrant Enterpreneurs Could See Their Visa Options Expand, But Only Slightly" »

As a Silicon Valley immigration lawyer, I often hear of Indian foreign nationals who suffer unexpectedly long delays in India when they return home for a visit, and then apply for a new H-1B visa in their passport. This has even been happening to H-1B workers who are renewing an H-1B visa, after having already obtained one a few years prior. The U.S. State Department's recently released "India Biannual Fraud Update" report sheds some light on possible reasons as to why some visa applications are taking so long. Although the report is dated October 2009, it discusses fraud trends from certain regions in India, and the steps that "Mission India" takes to combat fraud.

Indians make up the highest number of H and L visa applicants in the world. According to the report, all U.S. Consular posts in India regularly encounter inflated or fabricated educational and employment qualifications for H-1B visa applications. The majority of fraudulent documents come from Hyderabad. Some visa "consultants" specialize in fraudulent experience letters. To verify the legitimacy of an applicant's qualifications when experience is used instead of education, a post's Fraud Prevention Unit will make site visits to companies listed as a prior employer. In other words, an H-1B visa applicant who is using several years of experience to qualify instead of a four-year university degree, should expect to wait for their visa while the U.S. Consulate verifies prior experience.

Continue reading "Indian H-1B's Can Learn From DOS Fraud Report" »

H-1B employers in Silicon Valley will soon be facing yet another burden when applying for nonimmigrant visas for their foreign national employees. They may now have to incur the extra effort and expense of registering with Dun & Bradstreet (D&B), an Independent Information Provider (IIP) company that validates basic information about companies or organizations. D&B maintains a database of over 190 million companies across the globe, and will provide the USCIS with a business profile of any registered company, including company size, a credit profile, and any other public information. The introduction of D&B is spurred by USCIS' new VIBE program, a web-based tool that allows the USCIS to use information provided by an IIP (in this case, D&B) to verify a petitioning employer's qualifications. The VIBE program applies to most nonimmigrant visa categories.

The current trend in immigration law is that employers are receiving Requests For Evidence (RFEs), when the D&B information is either nonexistent for the petitioning company, or inconsistent with the information provided in the employer's petition. Even when petitioner's submit current documentation about their company, the USCIS is allowing the D&B profile to trump the information provided by the petitioner. This means that U.S. companies petitioning for foreign nationals might want to ensure that they are not only registered with D&B, but that their profile is up-to-date.

Though USCIS is stating that registering and updating a D&B profile is free of charge, the likelihood is that employers will be paying at least a couple hundred dollars to validate their company, or update their information. An employer who responds to an RFE about a discrepency with the D&B report could always provide information to show that the D&B report is just wrong. However, for employers filing multiple H-1Bs, it might make the most sense to just pay the fee for D&B in order to stave off these types of RFE's.

As if complying with the complexities of U.S. immigration law was not enough, employers must now review export control laws before submitting petitions for H-1B (professional worker), L-1 (intracompany transferee), or O-1 (extraordinary ability) visa petitions. The latest Form I-129, in effect since February 20, 2011, requires employers to complete the following question in Part 6:

With respect to the technology or technical data the petitioner will release or otherwise provide access to the beneficiary, the petitioner certifies that it has reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) and has determined that:

1. A license is not required from either the U.S. Department of Commerce or the U.S. Department of State to release such technology or technical data to the foreign person; or
2. A license is required from the U.S. Department of Commerce and/or the U.S. Department of State to release such technology or technical data to the beneficiary and the petitioner will prevent access to the controlled technology or technical data to the beneficiary until and unless the petitioner has received the required license or other authorization to release it to the beneficiary.

The idea is that when technology is disclosed to a foreign national, it is deemed to be exported to the home country of the foreign national. Some technologies require an export license to be exported to certain countries.

Continue reading "USCIS Now Requiring H-1B, L-1, and O-1 Employers to Review Export Control Law" »

Google, Oracle, Intel, and Fujitsu America led Silicon Valley Labor Condition Application filings for 2010. Filing a Labor Condition Application for Nonimmigrant Workers (an LCA) with the U.S. Department of Labor, and getting it certified, is a prerequisite to filing an H-1B application. The chart below is created by this immigration law office, based upon the Department of Labor's Disclosure Data for FY 2010. It shows the number of LCA filings for major Silicon Valley employers.

As shown on the chart, Fujitsu America led the way on LCA filings with 1,714. Google was a distant second with 900. Thereafter, it dropped down to 521 LCA filings by Oracle, and Intel, Apple, Hewlett-Packard, and Cisco all breaking 400.

H-1B LCA's filed in the Silicon Valley 2010

The chart, and the LCA data, DOES NOT SHOW THE NUMBER OF H-1B'S FILED by an employer. Although a certified LCA is required by an employer to submit an H-1B application, obtaining a certified LCA does not mean that an employer actually filed an H-1B petition. According to the Department of Labor, it usually certifies over three times the LCA requests as the number of H-1B visas petitions approved by the USCIS.

Continue reading "Silicon Valley H-1B Labor Condition Application Filings for 2010" »

Silicon Valley large employers of a foreign national workforce should get ready for their filing fees to double for an H-1B and triple for an L-1. The filing fees to submit one H-1B petition by a company larger than 25 people has held at $2320 for a couple years ($320 I-129 petition fee + $1500 supplemental fee + $500 fraud fee). An employer can add an extra $1000 for premium processing, to have the USCIS adjudicate the petition within 15 days. Now, companies with more than 50 U.S. employees, and whose workforce is more than 50% H-1B or L-1 status, must pay an additional $2000 (H-1B) or $2250 (L-1) per new petition. This will bring the total to $4320 for an H-1B, and $3070 for an L-1 ($320 I-120 petition fee + $500 fraud fee + new $2250 fee). This does not include any premium processing fee, or other potential fees such as education evaluations, translations, or visa fees.

These increased fees come from a new law, Public Law 111-230, President Obama signed in August for emergency supplemental appropriations for border security. The text of the law shows hundreds of millions of dollars going towards salaries for Customs and Border Patrol salaries and equipment. Maintaining a secure border is critical to our nation's security, and I support our government allocating necessary funds to carry out this purpose. But why double the filing fees for large employers? Does Congress think these fees will make employers hire more U.S. workers instead of foreign nationals? This thinking doesn't even make sense for an L-1, which is an intra-company transferee. For an L-1, a U.S. company that is a parent, affiliate, or subsidiary of a foreign company transfers a current employee of the foreign company to the U.S. office. The L-1 transferee is coming to the U.S. because they are already an executive or manager of the foreign company, or because they have specialized company knowledge.

Or is our government just looking for someplace to get more revenue? When the USCIS raises filing fees across the board, they always explain that the filing fees fund the operations of the USCIS. With this new law, the funds do not go to the USCIS for operations. Instead they go directly into the General Fund of the U.S. Treasury. In other words, this is basically a tax on large employers with a high foreign-national work force.

In the past, this blog has advised Silicon Valley employers to prepare for surprise visits by the USCIS Fraud Detection Unit regarding their H-1B petitions. This advice applies to all employers. While most employers who sponsor a foreign national on an H-1B, L-1, or other employment visa go to great lengths to comply with the immigration laws governing these programs, employers going about their daily business simply do not expect a surprise visit from the USCIS, so should they should have a basic plan in place. Now, employers should also be prepared for a phone call from the U.S. Department of State.

Once an employment-based petition (such as an H-1B or an L-1) has been approved, it is forwarded to the U.S. Department of State's Kentucky Consular Center. The Kentucky Consular Center verifies information about the petitioning company, relying on Google Earth, the company's own website and contact information, and probably from other sources as well.

Now, in addition to verifying the petitioning company, the Kentucky Consular Center may also verify information about the foreign national employee and the offer of employment. They will do this by making surprise phone calls to the petitioners, and asking questions about the company, the offer of employment, and the employee. The caller may request to speak to an authorized official. They will then ask a series of questions verifying certain information contained in the approved nonimmigrant visa petitions.

These questions could include, but are not limited to:

1. Whether the petitioner, in fact, submitted the petition;

2. When was the petitioner incorporated;

3. Where was the physical location of the petitioner;

4. Number of employees;

5. Names of shareholders;

6. Location of Attorney of Record;

7. General information regarding the petitioner's operations and business plan.

Preparing for a Phone Call
First of all, unless a business is involved with government contracts or regularly deals with U.S. government agencies, most employers may not know what to make of their receptionist telling them that a representative from the U.S. Department of State is on the line. All employers, of all sizes, that submit nonimmigrant visa petitions should know that it is possible to receive a phone call from the U.S. Department of State.

Continue reading "Silicon Valley H-1B and L-1 Employers Should Prepare for Phone Calls from U.S. Department of State" »

A new law raises immigration filing fees, to the point that an employer wanting to petition a foreign national for an H-1B could pay as high as $5320 just in USCIS fees, while an employer wanting to petition for an L-1 could pay as high as $4070 in USCIS fees.

The new fees apply if all of the following criteria are met:

If an employer

1. employs at least 50 employees in the U.S. , and


2. if at least 50% of those employees are in H-1B, L-1A, L-1B, or L-2 status, and


3. it is the first H-1b or L-1 petition submitted by that employer, for that employee.

Employers who meet this criteria will have to pay an extra $2000 per H-1B petition, and an extra $2250 per L-1 petition. This is in addition to the base petition fee ($320), the anti-fraud fraud fee ($500), and for H-1B employers the ACWIA fee of either $750.00 for employers with fewer than 25 employees, or $1500 for employers with 25 or more employees. Then employers can choose to pay an extra $1000 fee for premium processing service, providing for the USCIS to adjudicate the petition (or at least act upon it) within 15 days of filing.

This latest filing fee increase was part of a new law (Public Law No. 111-230) providing for emergency supplemental appropriations for border security. The new law provides more money for border security personnel and infrastructure along our Southwest border. But picking on U.S. employers and multi-national companies with U.S. offices as a source for border security funding is ultimately a mistake that will just leave us with a weaker border. At some point it is no longer cost-effective for employers to pay up to $5320 per employee for a temporary job. So employers will not use the program, or simply cut back on hiring to avoid reaching the 50% threshold. Or worse, employers will just increase their outsourcing of these jobs. The result is less hiring in the U.S., and ultimately less revenue to fund border security.

Good news for Silicon Valley artists, performers, athletes, and "superstars" in their respective fields, who rely on the "O" or "P" visa to enter the U.S. to perform at various events. "O" visas are for persons with extraordinary ability in the sciences, arts, education, business, or athletics, and "P" visas are for athletes and entertainers. Both of these visas are routinely used for performing artists. Last week, USCIS Director Mayorkas told a gathering of arts groups that regular processing for O and P visas should be accomplished within fourteen days. This is welcome news as USCIS processing delays can often result in artists and performers missing scheduled events. Although agents and event organizers need to plan to allow time for USCIS adjudications, various entertainment and artistic fields often finalize events and specific artists with relatively short notice.

Our Palo Alto immigration law firm welcomes this news, and is looking forward to seeing if the USCIS really does adjudicate regular O and P filings within fourteen days. Currently, this law office routinely files P cases via premium processing, which costs an extra $1000 but promises to adjudicate the case within fifteen days. This is out of necessity, as the first of scheduled events is often for thirty days after the petition is filed. However, if the USCIS will start adjudicating O and P cases within fourteen days, clients will be able to save the $1000 premium processing fee.

While this is welcome news, the timing for O and P visa applicants to actually obtain their visa at a U.S. Consulate abroad is an entirely different matter. The length of time to obtain an interview for an O or P visa can range from one or two days at several of the busiest U.S. Consulates, to thirty (Ho Chi Minh City) or thirty-five (Beijing) days. O and P petitioners need to plan for the actual visa processing in their home country, as well as for the time for the USCIS to adjudicate the petition.

A quick review of the list of largest H-1B users for FY 2009 shows high tech and Silicon Valley topping the list. The top users of the H-1B program for 2009 included multi-national technology companies headquartered, and with branch offices in Silicon Valley. Wipro tops the list with 1,964 new H-1B visas. Microsoft is second with 1318, but then Intel Corp has a big drop off at 723 H-1B's The list of Silicon Valley companies continues, including Infosys Technologies (440), Qualcomm (320), Cisco (308), Oracle (272), Google (211), Yahoo (183), Apple (168), Nvidia (130), and Hewlett Packard (115). While there is no way to know whether these companies sponsored employees located in Silicon Valley, as opposed to another office location, it is clear that high-tech and Silicon Valley are standouts on the list of H-1B employers.

Those who assume the H-1B is a tool used primarily by IT companies may be surprised to see the number of prestigious universities and medical facilities also nearing the top of the list. H-1B visas are work visas for professional workers who typically require at least a Bachelor's degree for entry into their profession. This includes teachers, professors, doctors, and scientists in addition to engineers.

The first two pages of the list are below:

H-1B Users Fy2009

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"" »

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.

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" »