Silicon Valley Immigration Lawyer Blog

USCIS Sets Guidelines for Expedited Review for Cases Affected by Administrative Errors

Tue, 01 May 2012 01:00:00 -0800

To err is human. While the expression is over three hundred years old, penned by the hand of the great eighteenth-century English poet Alexander Pope, it has since taken on a colloquial utility, used or at least known by everyone. Even the United States Citizenship and Immigration Service (USCIS) has realized that it is not infallible to human error. In a laudable showing of acknowledgement of its fundamental humanity, the USCIS established last month a process that allows immigrant petitioners who have received an unfavorable ruling in their case due to a specifically-defined administrative error to request for expedited review for corrective action. The new process is a significant step forward in ensuring judicial fairness for immigrant petitioners, particularly for those whose cases would have otherwise received a favorable adjudication.

Under the guidelines for the process for expedited review, the USCIS has outlined four "specifically-defined" administrative errors for which a petitioner may submit a service request. Petitioners may apply for expedited review only in the following circumstances:

If the USCIS issued an adverse decision based exclusively on the customer's failure to respond to a Request for Evidence (RFE), Notice of Intent to Deny (NOID), or Notice of Intent to Revoke (NOIR), and the customer possesses documentary evidence that he replied to the Requests and/or Notices in a timely manner.
If the USCIS issued an adverse decision based exclusively on the customer's failure to respond to a RFE, NOID, or NOIR, and there is evidence that the USCIS failed to send the Notices or Requests to the petitioner or his attorney or representative of record.
If the USCIS issued an adverse decision based exclusively on the customer's failure to appear at a biometrics appointment or failure to respond to an RFE, NOID, or NOIR, and there is evidence that that the petitioner properly submitted a change of address prior to the issuance of the Notice or Request to the wrong address.
If the USCIS issued an adverse decision exclusively based on the petitioner's failure to appear at a biometrics appointment, and there is evidence that the petitioner attended the appointment or properly filed to reschedule the appointment.

While the above administrative errors are likely the most common and easily correctable, they are not inclusive of all types of administrative errors that I believe should fall under the criteria for expedited review. As an immigration lawyer who has practiced the last ten years in Silicon Valley, I have seen a handful of bureaucratic mistakes by USCIS. One administrative error not listed under the criteria for expedited review is when a petitioner calls to reschedule an interview and receives a Notice from the National Customer Service Center (NCSC) confirming the request, but the USCIS denies an application solely because the petitioner failed to attend the interview.

Yet More Silicon Valley Immigrant Entrepreneurs

Tue, 24 Apr 2012 15:35:11 -0800

Mixed vibes of part celebration and part mystification are coursing through the conversations of many Silicon Valley residents following the news of Facebook's acquisition of the popular photo-sharing company Instagram for an astounding $1 billion. Despite the start-up company's infant status at barely one-and-a-half years old, Instagram has grown quickly since the release of its app that allows users to take stylized pictures through the program's filters. The service has over 30 million users, who, according to the company's report, upload an estimated 5 million photos via mobile technologies each day.

But beneath Instagram's success lies another important story of one of its co-founders, Mike Krieger. Krieger is a Brazilian immigrant who moved to California in 2004 on a student F-1 visa to study computer science and cognitive science. Following graduation, he worked for a year on his F-1 visa, most likely also in the Optional Practical Training program, and eventually applied for an H-1B visa as a specialty worker. Krieger has since applied for a U.S. green card, but, as he recalls in a contributory post on the White House blog, the road to obtain legal permanent resident status has not always been a smooth one.

As an immigration attorney in Silicon Valley, I recognize the value of foreign entrepreneurship and innovation in the ever-evolving technology industry. Highly-skilled professional immigrants have helped establish major high-tech companies, opening hundreds of thousands of job opportunities and stimulating the U.S. economy. You may recall that Andy Grove, the former chairman and CEO of Intel, is an immigrant from Hungary; that co-founder of Yahoo Jerry Yang came from Taiwan as a child; or even that Google co-founder Sergey Brin originally hailed from Russia. Krieger is the most recent incarnation of this established line of entrepreneurial spirit that knows no boundaries between foreign and native-born talent.

San Francisco Immigration Court to Grant Reprieves in Removal Cases

Fri, 06 Apr 2012 10:08:20 -0800

This summer the Executive Office for Immigration Review (EOIR) will suspend the operations of the San Francisco Immigration Court for a few days so that federal attorneys can comb the caseload to determine the low-priority cases to shelve from the court schedule. The San Francisco Immigration Court faces one of the biggest caseloads in the nation. The Department of Homeland Security (DHS) expects that the prioritization of the prosecution of high-risk immigrants with records of major crimes will provide hundreds of low-risk immigrants currently in removal proceedings a partial reprieve if they have no criminal record and can demonstrate strong community linkages.

The reassessment of the immigration court docket reflects the shift in immigration policy ushered in by the Obama Administration last August. Facing an overburdened immigration caseload and limited institutional resources, the federal government announced a new removal policy that would focus on immigrants who have committed serious crimes and allow immigration officers to exercise greater discretion in recommending the suspension of removal of low-risk immigrants not considered a threat to public safety. Due to the policy change, the immigration courts in Baltimore and Denver ran a six-week pilot program, in which over 10% of the roughly 11,000 cases reviewed were dropped. In comparison, the San Francisco Court has about 17,000 pending cases on its schedule.

As an immigration lawyer in Silicon Valley, I am pleased to hear that many low-risk, undocumented immigrants who are otherwise upstanding members of the community will receive stays in removal. Among the beneficiaries expected to receive partial reprieves are students brought to the United States at an early age. For such individuals in particular, the upcoming caseload review addresses humanitarian concerns, as many undocumented students, growing up most of their lives in the U.S., do not possess any ties to their countries of origin.

March Madness for H-1B Preparation Has Begun

Thu, 22 Mar 2012 09:50:43 -0800

It's that time of the year again. As college basketball enthusiasts turn on their TV sets and head to the sports arena in the spirit of March Madness, immigration attorneys are preparing for a different type of seasonal hype. In the mind of the immigration lawyer, "March Madness" represents the frenetic period of the year when we embark on the final sprint to prepare H-1B petitions to file on April 1st. While the fiscal year for new H-1B visas begins on October 1st, USCIS allows U.S. employers to submit H-1B applications up to six months before, starting on April 1st. Under the numerical limit for H-1B visas set by Congress, the USCIS may allocate up to 65,000 H-1B visas, in addition to another 20,000 allocations for advanced-degree applicants with a U.S. Master's degree or higher. The limited number of available H-1B visas means that immigration attorneys and U.S. employers must often scramble in the pre-season month of March to prepare and submit their petitions before USCIS reaches the cap.

Last year, the USCIS reached the numerical limit for cap-subject H-1B petitions on November 22, 2011 This was a significant uptick in the rate of submission of H-1B petitions in comparison with FY 2010, when USCIS did not reach the cap until a full ten months after the start of the filing period. Compared to previous years, however, in which the cap was often reached within a few months or even a few days, the rate of submission of H-1B petitions has slowed significantly in the last few years. In FY 2008-2009, USCIS reached the cap on April 7, 2008, merely seven days after the opening of the filing period. In FY 2007-2008, the cap was reached on April 2nd, the day after the filing start date. Economic analysts have conjectured that the lull in the rate for filing H-1B petitions was reflective of the weakened state of the U.S. economy.

While it is difficult to predict when the USCIS will reach the cap, the strengthening U.S. economy suggests that the filing period for FY 2012 may terminate at an earlier date than last year. To be on the safe side, employers certain about hiring specific foreign workers for whom they have been waiting to file should prepare their petitions for filing by April 1st. If the volume of applications submitted in the first few days of the filing period shows that the cap will be reached, then under the H-1B program's regulations, USCIS will conduct a lottery for all applications filed within the first five days of April.

Four Students Begin Trek Across U.S. in Support of DREAM Act

Thu, 15 Mar 2012 13:18:40 -0800

Last Saturday four college students began a 3,000-mile trek by foot across the U.S. in support of the federal DREAM Act, a proposed immigration law that, if passed, would provide a path towards lawful permanent resident status for undocumented individuals who have graduated high school or obtained a GED, and are pursuing a college degree or military service. The students began their campaign with a kick-off rally at the Golden Gate Bridge in San Francisco. They plan to visit 285 cities and towns in 13 states to gain national publicity for the immigration bill.

The conclusion of the students' journey in Washington D.C. in October will coincide with the 2012 presidential election campaigns. The walkers and their sponsors chose this specific date in an effort to compel the presidential candidates to seriously consider immigration reform as one of their central platform points. Whereas President Barack Obama has endorsed the DREAM Act but was unable to oversee its passage in Congress, Mitt Romney, currently the most promising presidential nominee for the Republican party, has stated that he would veto the Act if it passed.

The starting point of the DREAM Act campaign trail in San Francisco is indicative of California's progressive stance in rolling out immigration reforms. In June 2011, Governor Jerry Brown signed the California DREAM Act that allows undocumented students brought into the U.S. under the age of 16 to apply for state financial aid for schooling. The passage of the bill found wide-based support from immigration advocacy groups, civil rights organizations, as well as many school-based associations. Many of the bill's advocates, however, have stressed the limitations of the bill in ushering in comprehensive immigration reform at the national level. Unlike the bill for the federal DREAM Act, the California legislation does not grant beneficiaries any positive immigration benefits, as jurisdiction over immigration policy rests in the hands of the Federal Government. For this reason, pro-immigration advocates deem the passage of the federal DREAM Act vital to immigration reform.

Continuing Controversy Over Driver's Licenses for Undocumented Immigrants

Tue, 06 Mar 2012 10:04:06 -0800

A recent Mercury News article reported a new push for driver's licenses for California's undocumented immigrants. By now, most Californians are familiar with the multiple proposed bills to obtain driver's licenses for undocumented immigrants in the state. Most people feel strongly about the issue one way or another. No matter what side of the debate, however, many Silicon Valley immigration lawyers know that the bill addresses only a small part of larger immigration concerns.

Democratic Assemblyman Gil Cedillo has authored numerous bills proposing granting driver's licenses to undocumented immigrants since 1998. In 2002, Governor Gray Davis signed a bill into law to that end, but Governor Schwarzenegger repealed it before it went into effect. Recently, however, with the passage of the Dream Act, which grants some undocumented college students access to financial aid, proponents of a bill giving undocumented immigrants driver's licenses see renewed hope. The bill has also picked up steam with the endorsement of Los Angeles Police Chief Charlie Beck in a Los Angeles Times article last week.

There are several arguments for and against a bill that would allow undocumented immigrants to obtain a California driver's license. Supporters of the bill ensure that these drivers' licenses will not be valid for identification purposes such as registering to vote, boarding an airplane, or opening a bank account. Proponents support making the licenses a different color and stress that they are not meant to grant undocumented immigrants rights enjoyed by US citizens or others who are in the country legally.

Let's Put USCIS Forms in the Post Office

Thu, 01 Mar 2012 05:00:00 -0800

The USCIS forms are free to obtain, yet most require a fee when submitted. Anyone can get the forms and their corresponding instructions, for free, at www.uscis.gov. Yet, as an immigration lawyer, I was dismayed to read this week about the criminal indictment of several Missourians for defrauding customers by selling free immigration forms and misleading consumers. These folks advertised immigration services online, directing consumers to call a toll-free number for immigration assistance. They led consumers to believe that they were immigration "agents," and advised them which forms to use. Then, even though the forms are free to obtain, they charged consumers the stated USCIS filing fee amount and FedExed the free forms. Consumers were led to believe that by paying the fee for the forms, they were paying the USCIS filing fees. After submitting the forms to the USCIS, consumers were then surprised to find that they had to first pay the USCIS filing fee.

After reading this article, I googled "immigration forms," and the USCIS website for free forms is not first. Instead I found many companies that will sell the forms as part of a "how-to" guide, for anywhere from $50-$70. Although I did not download any of these products, the table of contents for these "how-to" guides seems to mirror the USCIS form instructions (available for free). One company actually did say, on the web page for each form, that the forms were available for free on the USCIS website.

USCIS Talks Immigration Law at Silicon Valley's Entrepreneurs in Residence Program

Sat, 25 Feb 2012 23:36:21 -0800

This week I attended the USCIS Entrepreneurs in Residence program, held at NASA Research Park in Mountain View, CA. This program grew out of an acknowledgment that the existing U.S. immigration laws for business visas are based on traditional business entities, and don't recognize the dynamic and untraditional business environments of startup enterprises. We still don't have a Startup Visa, and Congress will not be creating one anytime soon. Accordingly, the Entrepreneurs in Residence program is part of an overall USCIS initiative, announced last summer, to promote startup enterprises within the framework of existing immigration law.

The "Entrepreneurs in Residence" part of the program invites in five successful entrepreneurs to educate USCIS adjudicators about the nature of startup business, the language of startups, and just what are the indicia of a legitimate business in startup mode. They will consider how the regular business visas - B: Temporary Visitor for Business; H-1B: Specialty Occupations; E-1: Treaty Trader; E-2: Treaty Investors; L-1: Intracompany Transferees; and O-1, Extraordinary Ability - can be used for entrepreneurs within the framework of existing immigration laws.

Several top-level USCIS leaders attended, and the program was kicked off by USCIS Director Alejandro Mayorkas. The morning's speakers included a small panel of successful CEO's and venture capitalists who provided their own inspiring immigration stories, as well as words of caution that America is experiencing a reverse "brain drain". These panelists, Ms. Ping Fu, Mr. Michael Moritz, Mr. Shervin Pishevar, and Mr. Vivek Wadhwa, as well as Mr. Christopher Che, were then awarded "Outstanding American By Choice" during a naturalization oath ceremony.

Foreign Visitors Help Stimulate The U.S. Economy

Tue, 14 Feb 2012 10:00:09 -0800

An informational video called "Let's Talk Numbers" released last week by the Department of State (DOS) shows that over 60 million foreign visitors to the U.S. last year generated an estimated total of $134 billion in revenue for the U.S. economy. Visitors to the United States are not only vacationing and seeing national attractions; when they visit, they spend money on businesses like hotels and restaurants, increasing levels of commercial exchange. They help strengthen the U.S. economy, and also provide millions of U.S. workers with employment.

Realizing the importance of expanding the tourist industry, the DOS is in the process of streamlining its tourist visa process to facilitate greater numbers of visitors to the U.S. Over the past five years, the U.S. Government has already increased its visas to foreign nationals. As the DOS video cites, visa numbers are up by 43% in Mexico, 38% in India, 154% in China, and 210% in Brazil.

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.