Silicon Valley Immigration Lawyer Blog

Proposed New Immigration Rule Would Ease Waiting Time for the Spouse of U.S. Citizens Requiring a Waiver

Fri, 06 Jan 2012 16:40:41 -0800

Yesterday the Department of Homeland Security announced a process change that would allow the spouses of U.S. citizens who are in the U.S. but need a waiver to obtain a green card, apply for that waiver while still within the U.S. While most family-based green card applicants do not need a waiver to obtain a green card, this proposed change will have a major impact on the lives of those applicants who do need to obtain a waiver.

While the foreign national spouses and children of U.S. citizens living in the U.S. can apply for a green card, those who entered the U.S. illegally or entered legally yet overstayed their period of authorized stay, must leave the U.S. and apply for their green card at the U.S. Consulate abroad. For those who have accrued a year of unlawful presence in the U.S, once they leave the U.S. they trigger a ten year bar from the U.S. They can apply for a waiver to allow them to return to their families before ten years by showing that their U.S. spouse or parent would face extreme hardship as a result of the separation. But under current procedures, waiver applicants must first leave the U.S., be interviewed at the U.S. Consulate and be told to apply for a waiver, and then must submit the waiver. This can result in family members being stuck outside the U.S. for months, and even years while they wait for their U.S. Consulate appointments and for their waiver to be approved - if it is.

The proposed new rule would allow U.S. citizen spouse waiver applicants to apply for a "provisional waiver" while they are still in the U.S. Instead of leaving the U.S. and first applying for a green card, and first waiting for a waiver application to be adjudicated, this would allow spouses to wait in the U.S. while their waiver application is adjudicated, and then leave the U.S. to apply for the green card at the U.S. Consulate. While this proposed rule would minimize the time that the spouses and children of U.S. citizens are apart, one of the real, but unstated benefits is that it allows spouses to "test" whether they can overcome the ten-year bar before they actually trigger the bar by leaving the U.S.

As an immigration lawyer, I know that one of the first questions from a client who would want to apply for a "provisional waiver" would be: "What happens to me if my provisional waiver is denied? Will I be put into deportation proceedings since now I have alerted the USCIS to the fact that I am here illegally, and I have provided my home and work address? " Unfortunately there is no answer to this question at this time. However, the recent shift in immigration policy towards a greater exercise of prosecutorial discretion might have the benign result of allowing immigrants with no criminal records and U.S. citizen spouses, whose provisional waiver is denied, to remain in the U.S. For now we do not know the answer, but as the proposed rule goes through the comment and rulemaking process hopefully this question will be addressed.

Employers May Have to Delay Starting the Green Card Process

Thu, 18 Aug 2011 09:19:39 -0800

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.

Immigrant Enterpreneurs Could See Their Visa Options Expand, But Only Slightly

Thu, 11 Aug 2011 14:13:52 -0800

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.

Indian H-1B's Can Learn From DOS Fraud Report

Fri, 05 Aug 2011 00:34:03 -0800

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.

California Dream Act Is a Step in the Right Direction for Undocumented Students

Fri, 29 Jul 2011 00:22:09 -0800

This past Monday, California Governor Jerry Brown signed AB130, a bill known as the California Dream Act that would open up private financial aid and privately funded scholarship opportunities to undocumented immigrant students who were bought to the country illegally as children. Undocumented students who qualify for in-state tuition in California will be able to apply for $88 million in private scholarship funds administered by the University of California, Cal State University, and the California Community Colleges. The bill will go into effect January 1, 2012. AB130 is the first installment of a two-part package that would provide undocumented students greater access to funding for their education. The second bill in the package, AB131, is considered more controversial since it would allow the state to confer to undocumented students publicly funded scholarships and financial aid, including access to Cal Grants. AB131 is still undergoing discussion in the state Senate.

Opponents of Dream Act legislation argue that granting financial aid to undocumented students would exacerbate the competition for already limited resources and state funds. While this is a legitimate concern, the California's public colleges and universities have expressed support for the bill, estimating that the state Dream Act would affect less than 1% of their current student population.

As a Californian, I support access to a California college education for those students who went to high school here and are going to remain in California, whether or not they are undocumented. It is ultimately in our own interest to generate a larger population of college graduates with higher knowledge and skills.

However, as an immigration lawyer, I have met with undocumented college graduates who cannot get a legitimate, professional job. As long as they are undocumented, they cannot legitimately obtain a job. Federal law requires employers to verify that all new hires are eligible to work in the U.S. Whether or not they are U.S. citizens, all new hires are required to produce documentation showing their identity, and that they are authorized to work in the U.S. (i.e. state driver's license and unrestricted Social Security Card; U.S. permanent resident card and foreign passport; work visa and foreign passport). Furthermore, federal contractors and subcontractors are required to submit a new hire's information through the E-Verify website to confirm the worker is authorized to work in the U.S. E-Verify is an online system that verifies an employee's information with the U.S. Department of Homeland Security and the Social Security Administration. An undocumented college graduate will have a college diploma, but will not have the documentation to show that they can work in the U.S.

As least for now. The federal Dream Act, totally different from the California Dream Act, would change this. The federal Dream Act would allow those undocumented students brought to the U.S. as children to eventually legalize their status. Students would have to graduate from high school and either serves in the U.S. military or attends college, and demonstrates good moral character. Bi-partisan, federal Dream Act legislation has been introduced in Congress over the past several years, in different variations. Although the specifics regarding length of residency in the U.S., age of students, possible fines, and military service requirements have varied from different proposals, the end result of a federal Dream Act law would be to legalize all those students who had no say in the matter when they were brought to the U.S. as children. The California Dream Act is at least a step in the right direction.

Silicon Valley Congressional Leaders Oppose HALT Immigration Bill

Tue, 26 Jul 2011 01:11:56 -0800

Several Silicon Valley Congressional leaders signed off on a letter to President Obama opposing the newly proposed immigration law that strips away President Obama's ability to authorize Temporary Protected Status (TPS) and to exercise prosecutorial discretion in removal cases. The proposed immigration law introduced by Representative Lamar Smith (R-TX) is called "Hinder the Administration's Legalization Temptation Act" - or HALT for short. The bill attempts to discredit the Obama administration by temporarily suspending immigration law provisions only for the duration of President Obama's term. For the remainder of his current term, the bill would strip President Obama's ability to designate TPS for countries wreaked by havoc from civil war or natural disasters, such as Haiti and Sudan which are still designated for TPS. It would prevent granting humanitarian parole for persons to enter the U.S. unless the life of the person seeking parole was threatened. It would prevent eligible persons from obtaining deferred action. An example of how deferred action is applied to innocent victims is when the 10,000 cap on visas for victims of crimes is reached (a U visa), persons who would otherwise qualify for a U visa are placed on a waiting list and provided deferred action while in the queue.

Silicon Valley Schools Facing Immigration Issues

Tue, 19 Jul 2011 15:11:11 -0800

The San Jose Mercury News reports that at least two of Silicon Valley's unaccredited universities could be gaming the F-1 student visa system. According to the article, a university in Sunnyvale and one in San Jose cannot show that they actually satisfy the regulatory criteria to enroll international students on F-1 visas, despite being on the ICE list of schools approved to issue F-1 visas. This comes on the heels of the F-1 visa escapades with Pleasanton's Tri-Valley University, now closed and under investigation.

The Mercury News article explains that the universities in question are neither accredited by any agency with accrediting authority, nor are their credits accepted by other accredited schools. Without being accredited or having credits accepted by other accredited schools, these schools should not be approved to enroll F-1 students.

But international students can be big business for schools, since schools can charge full tuition. According to the article, the Tri-Valley University investigation revealed that the school had been paid millions by foreign students to obtain student visas. Unlike other visa categories, there is no cap or limit on the number of F-1 visas issued each year. The U.S. Department of State statistics show that in 2010, U.S. Consulates issued 385,210 F-1 visas. The potential for an unlimited number of international students, coupled with the high tuition fees that can be charged, provide an opportunity to create U.S. schools in the business of enrolling international students.

The Green Card Lottery Fiasco

Tue, 28 Jun 2011 16:00:22 -0800

The "lucky" person's path to a green card came to a head earlier this month when the results of this year's immigration green card lottery were invalidated. After thousands of lucky green card lottery applicants logged onto the U.S. State Department's website to see that they won, a few weeks later those same "lucky" people were told that the results of the lottery were invalid and that they were no longer green card lottery winners. According to the U.S. State Department, the lottery results were not valid because more than 90% of the winners were drawn from entrants submitted within the first two days of the 30-day registration period. This meant that the drawing was not "random", as required.

Each year approximately 55,000 people obtain a green card through the Diversity Lottery (or Green Card Lottery). Diversity Lottery applicants must come from a country with lower overall immigration to the U.S. (eligible countries are listed), and meet minimal education requirements. Applicants simply apply online through the U.S. State Department's website during a 30 day window in the Fall. There is not even an application fee. Then, the "winners" are randomly drawn by computer, and notified that they may apply for a green card within the following fiscal year.

As an immigration lawyer with full understanding of the long and arduous path to obtaining a green card through employment, asylum, and even through family, it has always seemed peculiar to me that another avenue to a green card is to play the annual green card lottery. Whereas the majority of employment-based green card applicants have at least a Bachelor's degree and usually require employer sponsorship, diversity lottery applicants only have to show that they completed high school or have at least two years of work experience. When the stated goals of U.S. immigration policy regarding legal immigration include attracting the best and brightest to the U.S., filling labor shortage needs, reuniting families, and providing a refuge for those seeking freedom from persecution, then holding a random drawing for green cards seems an anomaly.

U.S. Citizenship and Immigration Service Facing Identity Crisis

Thu, 14 Apr 2011 09:47:43 -0800

As an immigration lawyer I subscribe to receive automated e-mails sent out by the U.S. Citizenship and Immigration Service. Just yesterday I received an e-mail titled "Did you Know? The INS No Longer Exists". Apparently, despite the INS not existing since 2003, each month tens of thousands of visitors to the USCIS website find it by googling "INS". I'm an immigration lawyer, and not a marketing expert, but this seems like poor branding when eight years later tens of thousands of people still refer to you by your former name. Even worse, when I google "INS" the USCIS is not even at the top of the page. Now, eight years later, the USCIS is wondering why so many of us still don't know the name of their agency. I personally think it's a name flow problem. INS just rolls off the tongue rather smoothly. If you slur the letters together, it could really be just about two syllables. And no one ever felt the need to call it by its long form "Immigration and Naturalization Service". Everyone just knew (and still does know) what the INS was. "USCIS" just lacks the flow of "INS". You can't slur the letters so easily, and it's five distinct syllables. And "United States Citizenship and Immigration Service" is simply a mouthful to say, let alone remember. When an agency begins with "United States", people start to zone out after hearing the first two words as they know it's some government bureaucratic agency.

My personal recommendation is to first shorten it to three letters, along the lines of IRS, FBI, CIA. Everyone knows them by their abbreviation. Then, "CIS" seems like the obvious choice except it makes too much of a hissing sound when said quickly. Which leads me to my actual recommendation: "ICS", short for Immigration and Citizenship Service. It's got the three letters, it's descriptive, and it's easy and catchy to say. I think it could catch on in faster time than eight years.

The USCIS Wants to Hear Your Complaints

Thu, 31 Mar 2011 11:00:11 -0800

Your immigrant visa petition was denied because you didn't respond to a Request for Evidence...because you never received the Request for Evidence in the mail? Felt like the local USCIS adjudicator asked inappropriate questions at your marriage-based green card interview? If you've got a complaint, the USCIS Ombudsman wants to hear from you. He's even provided his e-mail address at: cisombudsman.feedback@dhs.gov.

The USCIS Ombudsman just released a report regarding the absence of a tracking system for complaints with the USCIS, and how the USCIS Office of Security and Integrity (OSI) is introducing a complaints tracking initiative to fix the problem. The initiative is supposed to guide the public on how to contact USCIS regarding problems they encounter with the system. The USCIS is hoping to increase overall customer satisfaction by using direct input from customers. The Ombudsman wants USCIS to expand that initiative to 1) establish a better means of informing the public how to submit general complaints; and 2) publish the collected complaint data for public scrutiny.

As an immigration lawyer, I welcome a specific, designated place to send concerns and complaints. What I would like even more is if action is taken on these complaints.

Silicon Valley H-1B Employers Face Even More Requirements

Wed, 23 Mar 2011 11:27:22 -0800

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.

March Madness Time For H-1B Preparation

Wed, 16 Mar 2011 11:37:13 -0800

March Madness is in the air. While millions of avid sports fans are rushing to finish their NCAA brackets, immigration lawyers across the country are also preparing for a frenzy. To immigration lawyers, "March Madness" is when we traditionally scramble to prepare H-1B petitions to be filed on April 1st. The first day that employers can submit H-1B applications for the 2011-12 fiscal year is April 1st. 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.

Before the 2008-09 FY, the annual cap for non-U.S. Master's degree petitions was often reached within days, and within a few months for other years. FY 2008-2009 saw the cap reached on April 7, 2008, just seven days after the filing period opened, and for FY 2007-08, the cap was reached on April 2, 2007. However, this past year, the cap was not reached until January 26, 2011, a full ten months after the filing window opened. If last year is an accurate prediction of this year, then employers don't have to feel rushed to submit their H-1B petitions by April 1st , as it is unlikely that 65,000 H-1B petitions will be submitted within the first five days of April. However, those employers who are sure about hiring specific workers and have been waiting to file should have their H-1B petitions ready to be filed on 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.

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

Tue, 01 Mar 2011 09:30:08 -0800

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:

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

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.

Silicon Valley H-1B Labor Condition Application Filings for 2010

Thu, 24 Feb 2011 14:43:08 -0800

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.

Silicon Valley Employers Must Prepare for I-9 Audits

Fri, 18 Feb 2011 17:27:31 -0800

The Federal government is about to start knocking on the doors of employers, demanding to see I-9 records and more. The Wall Street Journal reported that more than 1,000 audit notices, or notices of inspection, are to be sent out by Immigration and Customs Enforcement (ICE), part of the Department of Homeland Security, within the next few days. These "audit notices" are actually subpoenas, requiring employers to present original I-9 employment verification forms and payroll documentation. An employer is usually required to produce this documentation within three days. A sample I-9 subpoena is below.

Sample I-9 Subpoena (2-2011)

The second page of this subpoena shows that ICE demands more than I-9 forms. They request records of all employees hired within the past three years, copies of the documents the employee provided when completing the I-9, detailed information about independent contractors, any Social Security no-match letters, and detailed payroll filings.

Employers should realize that these I-9 audits can target any employer, of any size and in any sector, whether or not the employer has H-1B workers, L-1 workers, or sponsors foreign nationals for employment-based green cards. As all employers must complete I-9's for new hires and maintain payroll records, all employers should be prepared for an audit. Fines for uncorrected technical and substantive errors on the I-9 forms range from $110 to $1,100. If an employer had technical or substantive errors on their I-9 forms, they might not necessarily realize this and could be exposing themselves to substantial fines.

These audits come as ICE has created an Employment Compliance Inspection Center. The Head of ICE recently explained that this new center would "address a need to conduct audits even of the largest employers with a very large number of employees." The center is supposed to be staffed with specialists to pore over I-9 employee files of targeted companies.