Silicon Valley Immigration Lawyer Blog

Silicon Valley O and P Visa Applicants to See Faster Processing

Tue, 27 Jul 2010 16:17:29 -0800

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.

Changing Minds About Immigration: UFW's "Take Our Jobs" Campaign

Wed, 21 Jul 2010 14:27:46 -0800

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.

Family-Based Visas Going Unused

Thu, 08 Jul 2010 23:38:26 -0800

As an immigration lawyer, I regularly advise green-card holders how long it will take to sponsor their spouse, their brother, or their child for a green card. The U.S. immigration law has several categories under which a U.S. citizen, or a U.S. permanent resident (green card holder), can sponsor a close relative. All but one of these categories (the category including the spouse, child, or parent of a U.S. citizen), is subject to annual numerical limitation. The annual limitation for worldwide family immigration in 2010 is 226,000. This numerical limitation is determined annually by the U.S. State Department, in accordance with U.S. immigration law.

Because more than 226,000 family-based visa applicants wish to immigrate annually, a queue is formed in each of the family-based categories. Applicants are assigned a "priority date" that serves as their place holder in the queue. The priority date is the date that a sponsoring family member submitted the immigrant visa petition. So if a permanent resident submitted a visa petition for their spouse on April 1, 2001, the priority date for the spouse is April 1, 2009. Applicants can then view where the queue currently is by reviewing the State Department's Visa Bulletin, published monthly.

As an example, an excerpt from the July 2010 Visa Bulletin is below. The family-based immigration chart is at the bottom of the first page, and continues onto the second page. Category "2A" is the category for spouses and children of permanent residents. Under the "All Chargeability Areas Except Those Listed" column, the current priority date for category 2A is July 1, 2008. This means that if a permanent resident submitted a petition for their spouse or child before July 1, 2008, the spouse and child could now apply to immigrate to the U.S. The rest of the family-based chart shows some queues going back into the 1990's, and even 1989 for one category.

Excerpt July 2010 Visa Bulletin

Immigration Fees Going Up Again

Fri, 25 Jun 2010 23:28:38 -0800

As an immigration lawyer, I recently explained to a client that the USCIS filing fees for a U.S. citizen's new spouse and her two children to apply for a green card here in the U.S. would be $3935. That's just the USCIS filing fees, and does not include any legal fee, the medical exam fee, or any costs to obtain documents. (For those counting, it breaks down to: Form I-485 for spouse, $1010; Forms I-485 for two minor children, $930 each; Form I-130 for spouse and two children, $355 each). Now these fees are going to go even higher.

The USCIS announced in the Federal Register its proposed rule for new fees. Although the proposed rule is forty-four pages of small type printed three columns to a page, it provides background for USCIS fee increases, describes the studies conducted to determine the new fees, and explains the considerations that went into place in determining new fees. Furthermore, comments from the public are welcome and encouraged. The first page of the rule explains how to submit comments.

The USCIS is raising fees because it needs to cover the costs of providing the service it provides. It is generally raising fees across the board by 10%. This would raise the filing fees for the U.S. citizen spouse and two children above, to over $4300.

The USCIS is also going to implement a new fee for civil surgeons to be designated providers by the USCIS. Civil surgeons complete the medical examination form required for green card applicants. The U.S. citizen's spouse and children would need to undergo a medical exam with a civil surgeon as part of their green card application. Surely this new fee on civil surgeons will simply be passed through to the applicants, thereby further increasing the financial burden on green card applicants.

Out of curiosity I looked up what the filing fees would have been for the same U.S. citizen spouse and her two children, back in 2002. Their USCIS filing fees would have totaled only $920 (Form I-485 for spouse, $220; Form I-485 for two minor children, $160 each; Form I-130 for spouse and two children, $110 each; fingerprint fee for spouse, $50). When compared to today's filing fees of $3935, this equates to more than a 325% increase over the last 8 years.

The "Green Card" is Green Again

Thu, 13 May 2010 22:40:12 -0800

Today the USCIS unveiled a newly redesigned "green card' that is supposed to have stronger security measures to make the cards harder to counterfeit and tamper. The new card is provided by local Silicon Valley company, LaserCard. And it's green again. The nickname "green card" is derived from the first Alien Registration Receipt Card introduced in 1946. It was green, and remained green over the next two decades. The card has been revised numerous times since then, and has been officially called a Resident Alien card and a Permanent Resident Card. Despite these official names, it's still commonly known as a green card.

The pictures below show the front and back of the cards, and detail some of the security features. One feature to note is embedded Radio Frequency Identification (RFID), which allows inspectors to read unique, 192-bit serial number (192-bits) from a distance and link the information to the personal data on file. The card incorporates high resolution security artwork, resolved at up to 25,000 dots per inch, making it beyond the capability of scanning, copying and printing technologies. It also has laser etching on the hologram, making it that much more difficult to counterfeit. As an immigration lawyer, I'm looking forward to seeing one of these new cards soon.

Permanent residents do not need to replace their existing green card until their current one expires, or if they lose or damage their current one.

Silicon Valley Companies Top List of H-1B Employers

Sun, 09 May 2010 23:03:50 -0800

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

California Senator Supports Immigration Law Proposal

Thu, 06 May 2010 21:24:44 -0800

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.

San Francisco Calls for Boycott of State of Arizona over Harsh New Immigration Law

Mon, 26 Apr 2010 23:15:34 -0800

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's Harsh New Immigration Law Already Under Attack

Fri, 23 Apr 2010 22:37:07 -0800

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?

USCIS Director Meets With Silicon Valley Lawyers

Thu, 15 Apr 2010 09:39:25 -0800

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.

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

Thu, 25 Mar 2010 08:16:30 -0800

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.

Immigration Law Reforms Would Legalize Millions

Sun, 21 Mar 2010 23:04:56 -0800

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".

DOL Issues with H-1B Labor Condition Applications

Sun, 07 Mar 2010 21:51:32 -0800

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.

Silicon Valley Employers Still Have time for H-1B's

Mon, 01 Mar 2010 22:24:57 -0800

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.

Startup Visa Would Help Silicon Valley

Wed, 24 Feb 2010 22:59:38 -0800

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."