Silicon Valley Immigration Lawyer Blog

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

Mon, 30 Aug 2010 12:10:06 -0800

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.

Silicon Valley Employers To Pay Even Higher H-1B and L-1 Fees

Thu, 19 Aug 2010 17:03:03 -0800

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

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

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

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.

Leaked Immigration Memo Shows Practical Solutions as well as High Hopes

Fri, 30 Jul 2010 09:27:44 -0800

A "leaked" USCIS internal memo (shown below) shows the immigration agency brainstorming various immigration reforms that could be implemented even without Congress passing any form of comprehensive immigration reform. The draft memo, titled "Administrative Alternatives to Comprehensive Immigration Reform", is directed to USCIS Director Alexandra Mayorkas. The proposed reforms outlined in the memo would serve to "promote family unity, foster economic growth, achieve significant process improvements and reduce the threat of removal for certain individuals present in the United States without authorization." As Congress, and not the USCIS, make immigration laws, the USCIS proposes these changes by reviewing prior statutory interpretation, issuing new guidance, and by broadening the use of discretionary relief.

These proposed reforms include practical suggestions that should not be controversial, such as authorizing the automatic extension of EADs for up to 240 days after submitting a renewal application, as well as issuing EAD's for two years instead of one year. Also included are measures that are likely to be controversial, such as allowing Temporary Protected Status (TPS) applicants who entered without inspection to adjust status to permanent residence. TPS provides humanitarian relief for persons currently in the U.S., regardless of their immigration status, when events such as war or natural disasters in their home county make it dangerous for them to return home. In most instances, applicants for adjustment of status to permanent residence must have been inspected upon entry, and this would allow persons with TPS to adjust status even if they entered without inspection.

The proposed reforms also suggest a liberal use of "deferred action", and apply it to large groups of people. Deferred action is a form of prosecutorial discretion that allows people who are otherwise removable, to stay in the U.S. Persons granted deferred action can obtain employment authorization. The proposed reforms include allowing persons who might benefit from the proposed DREAM Act, be afforded "deferred action". While deferred action is often used on a case-by-case basis, it has been used for large groups of people in the past.

The USCIS responded to an inquiry about the memo, made by the American Immigration Lawyers Association, with the following:

"Internal draft memos do not and should not be equated with official action or policy of the Department. We will not comment on notional, pre-decisional memos. As a matter of good government, U.S. Citizenship and Immigration Services (USCIS) will discuss just about every issue that comes within the purview of the immigration system. We continue to maintain that comprehensive bipartisan legislation, coupled with smart, effective enforcement, is the only solution to our nation's immigration challenges.

Internal memoranda help us do the thinking that leads to important changes; some of them are adopted and others are rejected. Our goal is to implement policies wisely and well to strengthen all aspects of our mission. The choices we have made so far have strengthened both the enforcement and services sides of USCIS - nobody should mistake deliberation and exchange of ideas for final decisions. To be clear, DHS will not grant deferred action or humanitarian parole to the nation's entire illegal immigrant population."

Leaked CIR Memo (7!29!2010)

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, 2001. 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. So for persons that fall within the category of 'spouse and/or child of permanent resident", the overall timing will be around two years. The rest of the family-based chart shows some queues going back into the 1990's, and even 1989 for one category. For persons in those categories, the amount of time it takes from when their sponsor submits an application until the benefiiary can actually apply for an immigrant visa, can be up to twenty years.

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".