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Green-card holders and temporary workers from seven targeted countries found themselves living in total uncertainty last Friday night. President Trump?s Executive Order, as it was written, bars entry of both immigrants and nonimmigrants from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.   On its face, the Executive Order would bar immigrants - green card holders - from those countries from being able to return to the U.S. after travel abroad, or even from returning to the U.S. if they were abroad last Friday when this travel ban was signed.  In other words, people who have lived in the U.S. as green card hol ...

The U.S. Department of State has announced that the Diversity Visa Program for 2018 will open October 4, 2016, and conclude on November 7, 2016. Fifty thousand diversity visas, or greencards, are available through the 2018 program. The Diversity Lottery program (DV program) was created to encourage and facilitate increased immigration from countries not largely represented in the pool of U.S. immigrants. Most immigration opportunities are only available to foreign nationals closely related to U.S. citizens or permanent residents, or those being ...

Each quarter, the Department of Labor publishes statistical data about the applications and certifications it adjudicates as a preliminary step in employment-based immigration petitions. Applicants for H-1B's, H-2A's, H-2B's, and employment-based green cards that require a test of the U.S. labor market, must all obtain various certifications from the Department of Labor before they can submit their petition to the USCIS. The most recent data for employment-based green cards is shown below: https://www.scribd.com/doc/299377277/OFLC-Data-Q1-2016 This is the data for the Permanent Labor Certification Program, otherwise known as PERM. Filing the PERM application with the Department of Labor is the first step in the employment-sponsored green ...

Some Silicon Valley employers preparing to file new H-1B petitions on April 1st may be shocked by the filing fees, extraordinarily high for some employers. The Consolidated Appropriations Act, 2016, raised the supplemental fees from $2000 to $4000 for employers who have at least 50 employees, and at least 50% of their workforce is in H-1B or L-1 status. These employers could see their total USCIS filing fee be as high as $7550 per employee. The USCIS filing fee range for new H-1B petitions will range from $1575 to $7550. Determining USCIS filing fees requires employers ...

Many Silicon Valley employers know that in order to secure one of the coveted H-1B slots in this year's immigration H-1B lottery, they must take all the necessary steps to assure that their H-1B petitions are received by the United States Citizenship and Immigration Service between Friday April 1, 2016 and Thursday April 7, 2016. All cap-subject H-1B petitions submitted within that short window will be counted in this year's H-1B lottery. By law, only 65,000 new H-1B's are permitted each year, with an additional 20,000 H-1B's available only to for ...

Silicon Valley employers need to get started now in order to take advantage of the next H-1B filing window. Like last year, new H-1B petitions must be received at the USCIS between April 1, 2016 and April 7, 2016. The H-1B visa allows employers to sponsor foreign workers in specialty occupations. This is an occupation that requires the theoretical and practical application of a highly specialized body of knowledge, for which attainment of a U.S. bachelor's degree or higher is a minimum requirement for entry into the occupation. These are occupations such as engineers, scientists, architec ...

01-26-2016 Last week two former Disney employees sued Disney and two global consulting companies, claiming that Disney and the companies illegally conspired to violate the H-1B visa regulations by replacing U.S. workers with H-1B workers. The Complaint alleges that the two consulting companies, Cognizant and HCL, were the employer sponsors for the H-1B visas for the foreign workers. Presumably, Cognizant and HCL has contracts with Disney to place their workers with Disney to work on various projects. The Plaintiffs allege that in October 2014, between 200-300 Disney employees in the ...

Starting May 26, 2015, certain spouses of H-1B nonimmigrants will become eligible to apply for employment authorization. Currently, spouses and unmarried minor children of H-1B nonimmigrants, who hold H-4 status, are not eligible for employment authorization. The H-1B is a work visa for professionals to work in specialty occupations. Unlike other work visas, such as the L-1 (intracompany transferee) or E visa (treaty-trader or treaty investors), spouses of H-1B visa holders who hold H-4 status, are not eligible to apply for employment authorization. When an employer sponsors an H-1B worker for ...

The five-day window for the 2015 H-1B cap season is just over a month away, and this is the time for employers to make decisions on processing their cap-subject petitions. The H-1B petition has the highest filing fees per petition, of all the nonimmigrant visa options. The USCIS filing fee for an initial H-1B petition comes to $1725 for employers with 25 or less full-time equivalent employees, and $2475 for employers with more than 25 full-time equivalent employees. These filing fees are comprised of: The regular USCIS filing fee of $325; A $500 Frau ...

Most foreign students graduating from a U.S. University this Spring will want the opportunity to stay in the U.S. and put their new knowledge and skills to the test by working for a U.S. employer. For students with an employment offer, their future employers can sponsor them for an H-1B if the employment is in a specialty occupation and if obtaining the requisite degree will qualify the student to work for the employer. One of the many challenges that can arise with the H-1B process is with timing, of course. As we've explained above, there is an ann ...

Our country's own laws provide for people fleeing persecution in their own country, to apply for asylum upon their arrival to the U.S. The most vulnerable people, who are unable to avail themselves of the protections of their own country because of persecution, or a well-founded fear of persecution, on account of their race, religion, nationality, membership in a particular social group, or political opinion, can seek asylum in the U.S. Providing a haven for those attacked and in danger, on account of their race, their religion, their nationality, thei ...

Today the USCIS announced that it Will NOT start accepting new, expanded DACA applications tomorrow. This announcement comes after yesterday's Federal District Court's grant of a temporary injunction, blocking the implementation of the expanded DACA and DAPA. Department of Homeland Security Secretary Jeh C. Johnson announced that he "strongly disagrees" with the Court's decision, but that they must comply with the ruling. Accordingly, the USCIS will NOT begin accepting expanded DACA applications tomorrow, as originally planned. Furthermore, the USCIS ...

Late on February 16th, a Federal Judge in Texas issued a ruling to temporarily block the expanded DACA program from going into effect two days from now. On February 18th, the USCIS is supposed to make the new applications available under the expanded DACA program that the President announced back in November. Under the expanded DACA program, the upper age restriction was lifted, potentially allowing millions of more undocumented people to become eligible for this temporary benefit. This past December, the State of Texas, joined by twenty-six other st ...

The brief window for employers to file for new H-1B petitions is about to open. Starting April 1, 2015, employers may submit H-1B petitions for FY2016. The H-1B visa allows employers to sponsor foreign workers in specialty occupations. This is an occupation that requires the theoretical and practical application of a highly specialized body of knowledge, for which attainment of a U.S. bachelor's degree or higher is a minimum requirement for entry into the occupation. These are occupations such as engineers, scientists, architects, a ...

Starting February 18, 2015, the USCIS will start accepting requests expanded DACA pursuant to President Obama's executive actions. On November 20, 2014, the President took executive action to broadly expand the number of persons eligible to obtain DACA, or Deferred Action for Childhood Arrivals. Until now, the DACA program provided for people without any legal immigration status, who were born AFTER June 15, 1981, and who entered the U.S. before the age of 16 and before January 1, 2010, to obtain "deferred action". The expanded DACA program removes th ...

Just as he promised, last night President Obama announced his own series of executive actions to usher in significant immigration benefits. The most important, and dramatic, action is the introduction of a program allowing Deferred Action for Parents (DAP) of children who are U.S. citizens or U.S. permanent residents. It is anticipated that this will benefit more than 4 million people currently living in the U.S. Furthermore, the current Deferred Action for Childhood Arrivals (DACA) program, will expand the maximum age of eligibility, broadening the ...

Often touted as a champion of immigrants' rights, President Obama truly disappointed the immigrant population, advocacy groups, and the nation at large when he announced that he would not pursue any executive actions to jumpstart immigration reform until after Congress' November elections. Given the President's track record in utilizing his executive power to provide relief for undocumented foreign nationals - most notably the Deferred Action for Childhood Arrivals (DACA) program that he implemented in June 2012 - the President's decision to delay further action ha ...

The American Immigration Lawyer's Association (AILA) is national association of immigration lawyers that advocates for fair and reasonable immigration law and policy, and strives to advance the quality of immigration and nationality law and practice. As a member since 2001, I am pleased with the organization's press release today blasting the President's failure to exercise executive powers to help with the humanitarian crisis of refugee women and children at our border. FOR IMMEDIATE RELEASE Saturday, September 6, 2014 CONTACTS: George Tzamaras or Belle Woods 202-507-7649 - 202-507-7675 gtzamaras@aila.org - bwoods@aila.org Washington, DC - The following is a statement from Leslie Holman, President of the American Immigration La ...

For the past two years, the President and Congress have been working together (and often against each other) in the effort to formulate a solution to address the growing undocumented foreign national population in the United States. As part of a temporary solution, in June of 2012, the President implemented his Deferred Action for Childhood Arrivals program (commonly referred to as DACA) which provides young adult undocumented with a short-term delay of their deportation proceedings. DACA is similar to a long-s ...

One of the most common ways for foreign workers to receive U.S. permanent residence (green cards) is by having a U.S. employer sponsor them for a permanent employment position through the Labor Certification program, also referred to as "PERM." In order to complete the PERM program, the U.S. employer must place a series of job advertisements in different venues in order to test the labor market and confirm that there are no qualified and willing U.S. workers who can perform the job duties of the position offered to the foreign worker. The PERM program has ...

Most foreign nationals who want to come to the U.S. for an extended period of time must apply for a visa. If the foreign national wants to work, he/she must find an employer to sponsor a work visa such as an H-1B, O-1, or L-1. If the foreign national wants to attend a U.S. university, the national must obtain an F-1 visa. And if the foreign national simply wants to visit the U.S. as a tourist, he or she must obtain a B-1/2 visitor visa. (Nationals of certain countries are exempt from the visitor visa requirement and can instead enter the U.S. without a visa und ...

One of the most popular nonimmigrant (temporary) work visas in the United States is the H-1B visa. The H-1B visa is used for foreign workers who will be coming to the U.S. to fill speciality occupation positions for U.S. companies, which means that their job positions require at least a Bachelor's degree. You can learn more about how to qualify for the H-1B visa here. There are many industries that employ large numbers of H-1B workers, with the information technology sector being one of the leaders in taking advantage of the H-1B program. One of the down ...

Obtaining U.S. citizenship is often the ultimate dream for many foreign nationals who come to this country and apply for permanent residence. By receiving U.S. citizenship, nationals become entitled to hold a U.S. passport, are empowered to vote in regional and national elections, and become eligible to receive many other important benefits that are reserved to citizens. The process of acquiring U.S. citizenship is called naturalization. In most circumstances, U.S. permanent residents (green card holders) may apply for naturaliza ...

As readers of the Silicon Immigration Lawyer Blog are no doubt aware, USCIS received the maximum 65,000 H-1B petitions to meet the 2015 Fiscal Year H-1B cap in April 2014. Since April, USCIS officers have been adjudicating the 65,000 petitions, and many clients have started receiving their H-1B approval notices for their cases. In order for USCIS to approve the H-1B petition, the petition must demonstrate that the H-1B job position qualifies as a specialty occupation, meaning that the position normally requires a bachelor's degr ...

Now that USCIS has begun to review and approve the H-1B applications it received during this past April, many U.S. companies who sponsored these applicants, as well as the foreign workers themselves, are calling our office to speak to one of our knowledgeable immigration attorneys about the H-1B visa interview process. Once USCIS approves the H-1B petition, the agency forwards a copy of the approved petition to the U.S. embassy in the foreign worker's home country. If the worker is not already in the U.S. and has been approved for a "change of stauts", then the wor ...

The Silicon Immigration Lawyer Blog has frequently discussed President's Obama's federal program called Deferred Action for Childhood Arrivals. Enacted in 2012, the President's "DACA" provides a mechanism for certain undocumented foreign nationals to receive employment authorization and the suspension of their deportation proceedings if they arrived in the U.S. when they were children and have a clean criminal record. (For more information on all of the requirements for the DACA program, readers are encouraged to visit the U.S. Citizenship and Immigration Services website). Ma ...

In the year that has passed since the Senate approved its own version of comprehensive immigration reform, immigrant rights advocates and foreign nationals have experienced a slow but significant decrease in their enthusiasm for new legislation as the House of Representatives continues to stall in its own efforts to pass any sort of immigration reform. Many of the states are frustrated with Congress's ongoing inaction and infighting when it comes to immigration reform, and so they are taking matters into their own hands. For example, New York's state legislature rec ...

Amid the national debate on comprehensive immigration reform, one topic that political pundits have discussed ad nauseam is how to address the needs of the undocumented foreign nationals who were brought to the U.S. as children. This population is commonly referred to as "DREAMers." Since Congress has not yet agreed on a citizenship pathway or any other immigration solution for DREAMers, in June 2012 President Obama announced the implementation of the Deferred Action for Childhood Arrivals policy, otherwise known as DACA. Since 2012, DREAMers could apply for DACA, ...

Today, the U.S. Department of Homeland Security (DHS) announced that it has created two new proposed rules that, once they take effect, will impact many foreign nationals who are currently residing in the United States, as well as many foreign nationals who wish to immigrate to this country. The first rule concerns those who are in the U.S. in H-4 status as spouses of H-1B temporary foreign workers. At the present time, H-4 spouses are ineligible to receive work authorization from U.S. Citizenship and Immigration Services (USCIS). However, the new proposed rule ...

In June of 2012, the Obama administration was heralded by undocumented foreign nationals and immigrants' rights groups as the President announced the now widely known Deferred Action for Childhood Arrivals program (referred to as DACA). Under DACA, young foreign nationals who are currently residing in the U.S. without immigration authorization may apply to U.S. Citizenship and Immigration Services (USCIS) for a temporary postponement of deportation proceedings and may also receive work authorization. USCIS has received hundreds of ...

Most foreign workers and U.S. employers are aware that only 65,000 H-1B visas can be issued each year (with an extra 20,000 visas that are given to foreign workers who have Master's degrees from U.S. universities). The reason for this limitation is because Congress created a cap on the amount of H-1B visas that could be approved each year. (However, there are a number of special types of foreign workers and companies that are exempt from this cap, so their cases are not counted towards the H-1B cap). The H-1B cap would not be a problem if only a few foreign worke ...

If there is one question that immigration lawyers hear every day it is, "Why hasn't my application been approved yet?" We understand that it can be very frustrating for applicants, their family members, and their employers to wait for a very long time before receiving a decision. In certain situations, there may be a way to expedite an immigration application, but the decision to do so should be undertaken very carefully as explained below. The government agency called U.S. Citizenship and Immigration Services (USCIS) is the entity that reviews and decides application ...

Immigration topics have dominated the news in the past couple of years, with much of the attention focused on prospective immigration in Congress and the various employment-related immigration options for foreign workers. One of the most frequently discussed employment visas is the H-1B visa, which is a highly popular visa that allows foreign workers to seek employment in the U.S. for a maximum period of six years (though there are exceptions to this six-year maximum). While the H-1B visa is a great option for U.S. employers who are seeking to hire foreign worke ...

The Supreme Court of the United States (SCOTUS) is the highest court in the country - meaning that once a case is decided by SCOTUS, there is no other adjudicative body that will hear the case. In essence, the Supreme Court's decision is final. SCOTUS typically reviews cases that involve constitutional rights such as the right to freedom of speech, the right to bear arms, etc. However, the Supreme Court may be called to make a final decision regarding an immigration issue in the near future. The case is called Roxana Santos vs. the Frederick County Boar ...

Recently, U.S. and India relations were rocked by a very public scandal involving an Indian diplomat's arrest for committing immigration fraud - specifically for engaging in visa fraud, for allegedly mistreating her domestic servant, and for allegedly failing to pay the servant the appropriate salary under U.S. immigration law. This case brought to light one of the lesser utilized visas that is reserved for domestic servants, and also served to highlight the consequences of noncompliance with immigration laws. This case concerned an Indian Deputy Consul General named Devy ...

Nearly all of the nonimmigrant (temporary) work visas available to foreign employees are not country specific - meaning that regardless of the employee's country of origin, the worker may qualify for the visa. However, there are a few visas that are reserved only for workers from specific countries and one of these visas is called the TN visa. The TN visa, (the abbreviation for "Treaty National" visa) was created pursuant to the North American Free Trade Agreement (NAFTA) which was signed by the United States, Canada, and Mexico. The goal of NAFTA is to facil ...

During the recent public discussions about the need for comprehensive immigration reform, one group of foreign nationals has been talked about more than any other - the hundreds of thousands of young, undocumented immigrants who were brought to the United States as children and identify as American in every way but legally. This group, often referred to as DREAMers after the DREAM Act bill which would give them the opportunity to become U.S. citizens, are comprised of hopeful doctors, lawyers, teachers, and entrepreneurs who are still waiting for Congress to pass ref ...

Earlier this month, New Jersey Governor and Republican Chris Christie made the national news yet again when his state became the most recent to let undocumented foreign students attend New Jersey public schools at the in-state tuition rate, giving these students the same financial advantage as the state's other residents who have legal immigration status in the United States. Governor Christie signed the bill after the state's legislature reached a compromise that dropped financial aid eligibility for these foreign students, but which qualified them for the in-state tuit ...

The Board of Immigration Appeals (BIA) is the administrative body that reviews decisions handed down by immigration judges. Recently, the BIA heard a case wherein the immigration judge ruled that the foreign national had abandoned his permanent resident status by spending large amounts of time outside of the United States. After reviewing the facts of the case, the BIA returned the case back to the judge because the foreign national's attorney had not adequately advised and defended him during the course of his representation. In this case, the foreign national received lawfu ...

Nearly twenty years ago, Sergio Garcia's parents brought him to the United States from Mexico without valid immigration papers. His father has since become a U.S. permanent resident (green card holder) and filed a green card application for his son in 1995. However, due to the lengthy waiting times for Mexican nationals seeking to obtain a green card, 19 years later Mr. Garcia still does not have permanent residence. During this interlude, Mr. Garcia has been residing, working, and studying in the U.S., culminating with the obtainment of his law degree from Cal Northern ...

In June of 2012, the Obama administration issued a directive in conjunction with the Department of Homeland Security, putting into place a temporary reprieve from deportation for certain foreign national minors who were in the U.S. without legal immigration status. Known as Deferred Action for Childhood Arrivals, or DACA or DREAMers, this policy has granted relief to thousands of eligible foreign nationals who are now able to temporarily remain in the U.S. without fear of deportation. Recently, in the face of mounting pressure from immigrant rights groups who are stil ...

When a U.S. employer wishes to hire a foreign national for a permanent position, the employer must complete the permanent labor certification process (also referred to as PERM). The purpose of the PERM process is for the employer to test the U.S. labor market to confirm that there are no willing and able U.S. workers who could perform the duties of the job opportunity offered to the foreign national. To do so, the employer must place a series of advertisements for the job opportunity, such as in a newspaper of general circulation and with the state workforce ...

Infosys Corporation, a large multi-national company operating primarily out of India, is a provider of IT consulting and tech-support services. Due to activities arising out of its immigration and employment practices, the U.S. government sued Infosys in U.S. federal court. Recently, Infosys agreed to a settlement with the U.S. government to the tune of a $34 million fine - making this settlement the largest fine for immigration violations in history. The company must also abide by stricter immigration compliance rules in the future. The lawsuit originat ...

The Obama administration released a directive last Friday, instructing federal immigration officers to be cognizant of family connections and needs when detaining undocumented foreign nationals who have children. The directive does not prevent the deportations of these foreign national parents, but it does facilitate the detainees' abilities to make decisions regarding the care of their children. While the document does not prevent the deportation of undocumented parents or high-priority criminal immigrants, it does allow detained individuals to make caregiver d ...

U.S. Customs and Border Protection (CBP) is the federal government agency that oversees and enforces many of the country's international trade, customs, and immigration regulations. When entering and exiting the United States, travelers will be processed by a CBP officer and questioned about the items they are bringing into the country, their immigration status, their plans during their stay in the country, etc. In order to facilitate international travel in and out of the U.S., CBP created the Global Entry Program (GEP). The GEP allows qualified travelers to expedite ...

The Senate's reform bill is more than one thousand pages long and details plans to change employment-based immigration opportunities, as well as provides a pathway to citizenship for many foreign nationals who are currently in the U.S. without legal status. While these bill provisions have received much attention from American media, there are several other sections of the legislation that are worth a closer look. For example, one section of the bill would triple the amount of Afghan nationals who are eligible for a U.S. green card. This specific section concerns the ...

The immigration queue for the spouses of U.S. permanent residents is temporarily disappearing, starting in August. Spouses of U.S. permanent residents (green-card holders) can immigrate to the U.S. under the family-based immigration system, but the number allowed every year is dictated by law. This has historically resulted in a multi-year queue for this category - the F2A category. That queue is going to temporarily disappear for at least a couple of months, starting in August. For the spouse of a U.S. permanent resident to immigrate, the U.S. permanent resident first files an immigrant visa petition (the Form I-130). Upon filing this petition, the "priority date" will be established. The priority date is the date on which the petit ...

The U.S. Senate's immigration bill that just passed in June includes a complex scoring system to ascribe points to prospective immigrants. The highest scorers, up to 250,000 annually, could obtain green cards. The Senate plan sets out one tier for white collar workers, and one tier for blue collar workers. The white collar tier (Tier 1) favors U.S. work experience in a high-skill field, qualifications in a high-demand job, entrepreneurship, English language skills, family in the U.S., high levels of post-secondary education, youth, less represented country of origin, and a level of civic involvement. The amount of U.S. work experience in a high-skilled job carries the most weight, followed by level of education. The San Jose Mercury New ...

Texas Congressman Mr. Lamar Smith (R), recently introduced legislation into the House Judiciary Committee. The bill is called the Legal Workforce Act (LWA) and its purpose is to expedite the implementation of employment-verification systems in the United States. According to Representative Smith, his impetus for introducing the bill is to ensure that there are firm mechanisms in place to discourage future unauthorized immigration and employment. The Congressman believes that one of the largest motivators of unauthorized immigration is the job prospects offered by ...

Persons who are not United States citizens, such as nonresident aliens and greencard holders, face a difficult United States estate tax planning environment when they invest in United States assets. Instead of the $5,250,000 (exemption amount for 2013 that is indexed to inflation), to which United States citizens and permanent residents are entitled, a nonresident alien is entitled to an exemption of only $60,000 for their United States property. Permanent residents of the United States, while entitled to the entire estate tax exemption for the United States estate tax (which is indexed for inflation and is $5.25 million for 2013), are subject to United States estate tax on their worldwide assets, including assets held in their country of ...

Earlier this week, the House of Representatives Judiciary Committee passed a measure that would make being an unauthorized immigrant in the U.S. a federal crime. The physical act of entering the country without inspection is currently a federal misdemeanor crime, but the new bill would criminalize the unlawful presence resulting from either entering without inspection or overstaying one's visa. The bill is called the Strengthen and Fortify Enforcement Act (SAFE Act) and would also allow state and/or local governments to implement their own immigration laws as long as ...

The American Civil Liberties Union (ACLU) has filed a lawsuit against the U.S. government, alleging that federal immigration officials provide misinformation and otherwise coerce undocumented foreign nationals into using the voluntary departure program. Voluntary Departure (VD) is a program that allows a foreign national who is in removal proceedings to depart the country without an immigration judge entering a removal order against that person. A foreign national who applies for VD must concede removability and must depart the U.S. within the time allotted in the grant of VD. ...

Recently the Secretary of the Department of Homeland Security (DHS) extended the temporary protected status (TPS) designation for nationals from El Salvador. Because of this action, foreign nationals from El Salvador who already have TPS may extend their status through March 9, 2015. Additionally, El Salvadorians who are currently in the U.S. without this status may apply for TPS designation. Congress created TPS in 1990 in order to provide foreign nationals from unstable countries with the option of remaining in the U.S. until their country's conditions i ...

In the last month, the U.S. Supreme Court declined to hear an appeal for a case involving a controversial Alabama immigration law. As is the court's tradition, the Supreme Court justices did not provide the public with a reason as to why they declined to hear the case. The case concerned the contentious Alabama law that created new criminal penalties for immigration violations performed within that state. Specifically, in 2011, the Alabama state legislature passed a law that attempted to criminalize harboring or transporting unauthorized immig ...

Much of the attention surrounding the immigration reform bill has centered on how the U.S. will address its millions of undocumented immigrants, and how it will increase the arrival of highly-skilled foreign workers. However, recently the attention has turned to the more humanitarian-based immigration opportunity of asylum. Since 1980, the U.S. has offered asylum (or safe haven) for foreign nationals who fear persecution on accountof their religion, race, nationality, membership in a particular social group, or political opinion. (Note that asylum is different from refuge. On ...

Since the Senate began debating the provisions of the comprehensive immigration reform bill (the "Border Security, Economic Opportunity, and Immigration Modernization Act"), many Senators have introduced proposed amendments to the bill in efforts to change, add, or delete key provisions of the legislation before it is presented for a final vote. One amendment proposed by Republican Senator Chuck Grassley (Iowa) is expected to pass the Senate Judiciary Committee in the next few days. The goal of Senator Grassley's amendment is to improve the Depa ...

Virginia Congressman and House Judiciary Committee Chairman Bob Goodlatte recently introduced his own piece of immigration legislation into the U.S. Congress. This week, Representative Goodlatte introduced the Agricultural Guestworker Act (AGA) which, according to the Representative's website, seeks to provide American farmers with a temporary agricultural workforce via a simple and employer-friendly immigration program. Representative Goodlatte drafted the AGA because he felt that the current immigration reform bill did not sufficiently address the employment n ...

Earlier this month, the comprehensive immigration reform bill was introduced into the U.S. Senate. The bill includes many significant changes to immigration law, including the introduction of multiple new visas, a heightened border security program, and changing the makeup of certain family-based immigration categories. The Senate has already began debating the provisions of the bill, a process that is estimated to last several months as various groups vie to protect and promote the interests of their constituents. One major group involved in th ...

The race to file H-1B visas for fiscal year 2013-2014 is about to begin! The H-1B temporary work visa is one of the most popular visas for foreign nationals, yet it is arbitrarily capped by Congress. Only 65,000 new H-1B visas are allocated each fiscal year, plus an additional 20,000 H-1B visas for workers with a U.S. Master's, or higher, degree. The fiscal year starts on October 1 every year, which means that employers who want to hire H-1B workers should file their H-1B petitions with USCIS on April 1 (six months in advance) in order to make sure their petitions ...

In the last few months, comprehensive immigration reform has been pushed into the national spotlight as Congress works to pass legislation to amend the U.S. immigration system. While most of these discussions and prospective changes involve employment-based immigration and how to address the large undocumented immigration population, it has recently come to light that Congress might also include changes to the Temporary Protected Status in its reform legislation. Temporary Protected Status ("TPS") was created in 1990 as the U.S.'s humanitarian response to the tumultuous ...

The Violence Against Women Act (VAWA) is a law that Congress initially enacted in 1994. The purpose of the VAWA law was to create safeguards and legal remedies for victims of domestic violence. VAWA authorized federal funding allocations for research into domestic violence, prevention efforts, treatment programs for victims, and several other programs aimed at decreasing domestic violence in the United States. Importantly, VAWA contains many provisions that affect foreign nationals and protect them from crimes of domestic violence perpetrated by U.S. citi ...

Silicon Valley Congressman Mike Honda recently reintroduced an immigration bill into Congress called The Reuniting Families Act. The goal of this legislation would be to improve the waiting time for family members trying to immigrate under the family-based immigration categories. U.S. immigration law allows U.S. citizens and lawful permanent residents (green card holders) to sponsor certain family members for green cards. U.S. citizens are eligible to sponsor their spouses, parents (if the U.S. citizen is at least 21 years old), children, and ...

The U.S. federal government is preparing to address its impending forced budget cuts, referred to as sequestration, which amount to approximately $85 million worth of cuts across several government agencies. Citing these future cuts, Immigration and Customs Enforcement (ICE), the agency responsible for identifying and detaining foreign nationals who are subject to deportation, has decided to release several hundred foreign national detainees from ICE custody. Those who are released will remain subject to a "supervised released" program and their deportation proceeding ...

The U.S. Customs and Border Protection (CBP) announced that it will be eliminating the I-94 card, an immigration document that was previously very important for foreign nationals. Currently, every foreign national receives an I-94 card when he or she enters the United States. The CBP officer who checks the foreign national's passport, visa, and other immigration documents issues the card. The card contains an eleven digit number unique to the foreign national, the foreign national's name, date of birth, and visa status (such as F-1, H-1B, etc.) and date the statu ...

A bi-partisan group of eight U.S. Senators just recently unveiled their plan to implement comprehensive reforms to the immigration system. Their current plan has four pillars: Institute a "tough but fair" path to citizenship for the undocumented foreign nationals currently residing in the United States. This citizenship plan will be contingent upon increased border patrol and security measures which include implementing an approved tracking system that will ensure authorized foreign nationals depart the country at the end of their stay. In order to impr ...

Foreign nationals eligible for U.S. permanent residence (a green card) can apply for permanent residence either by: (1) completing an "adjustment of status" from within the U.S., or (2) by applying for an immigrant visa at the appropriate U.S. Consulate abroad, and then entering the U.S. as an immigrant. Foreign nationals who are already in the U.S., and meet exacting criteria, have the option to file an Application to Adjust Status with the USCIS. Once the USCIS approves the applications, the agency creates and mails the green ...

USCIS, the federal agency that reviews and adjudicates immigration petitions, recently announced that it will be making a comprehensive Policy Manual available online in the coming weeks. The USCIS Policy Manual will outline the agency-wide procedures and practices that adjudicators abide by when reviewing petitions for immigration benefits. The Policy Manual will be separated into chapters, with each chapter dedicated to a different area of immigration such as employment-based immigration, family-based immigration, asylum, and citizens ...

USCIS recently announced a new immigration procedure that will allow certain family members of U.S. citizens who are in in the United States illegally and need to apply for a waiver before becoming eligible for a green card, to apply for that waiver before leaving the United States. Currently, certain relatives of U.S. citizens who are eligible for a family-based green card, but have been living in the U.S. illegally, must depart the U.S. and apply for their green card at the U.S. Consulate abroad. Because they have been in the U.S. illegally, they must apply ...

CNN recently reported that President Obama signed a rare private bill for immigration relief on Tuesday of last week. This bill granted Nigerian student Victor Chukwueke U.S. permanent residence (i.e. a green card). Typically, in order to obtain permanent residence the foreign national must have a U.S. employer or a U.S. citizen/permanent resident family member sponsor the foreign national's green card application. However, in a very small number of cases, Congress has the ability to bypass this sponsorship requirement and grant permanent res ...

Customs and Border Protection (CBP), the agency responsible for admitting travelers and residents to the U.S., recently answered questions regarding international travel for lawful permanent residents (LPRs). This question and answer session was conducted by the American Immigration Lawyers Association. As an experienced Silicon Valley Immigration Attorney, I know that long and/or multiple periods of international travel can create serious issues for some LPR clients. Typically, most LPRs do not encounter any delays or issues when returning to the U.S. after internation ...

Yesterday marked the first day that undocumented young people can apply for deferred action. The USCIS is actually calling this program "Deferred Action for Childhood Arrivals", or DACA. This past June, the USCIS announced that undocumented young people who meet specific eligibility criteria could apply for deferred action. Deferred action allows people to remain in the U.S. without threat of removal (deportation). Under this program, it also allows people to apply for a renewable, two-year employment authorization document. As a Silicon Valley immigration lawyer, I often meet people who have attempted to apply for a U.S. immigration benefit on their own, by following the instructions on the USCIS website. While plenty of people nav ...

There are not many aspects of the immigration debate that Democrats and Republicans seem to agree on. Across issues of border enforcement, amnesty, and immigrant rights, infighting and animosity seem like more fitting descriptions of their relationship than collaboration and mutual respect. It is consequently significant that, amid the general atmosphere of dissension in party politics, legislative efforts to facilitate the immigration of foreign entrepreneurs and innovators have obtained support from a handful of Democratic and Republican Senators alike. Recently introduced by Republican Senators Jerry Moran (R-Kan.) and Marco Rubio (R-Fla.) and Democratic Senators Mark Warner (D-Va.) and Chris Coons (D-Del.), Startup Act 2.0 would expand ...

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 immigran ...

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 ...

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 immig ...

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 appl ...

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 ...

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 int ...

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 ...

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 entrepreneu ...

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 fi ...

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 ...

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 th ...

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 ...

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 th ...

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, AB ...

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 ...

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 ...

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 ...

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 n ...

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 pro ...

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 ...

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 ...

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 Co ...

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. http://www.scribd. ...

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. http://www.scribd.com/doc/49508862/Sample-I-9-Subpoena-2-2011 Sample I-9 Subpoena (2-2011) The second page ...

As an immigration lawyer, I advise couples applying for marriage-based green cards. This includes advising them as to what type of documentation they need to submit to show that they have the sorts of things that married people usually have (i.e. joint accounts, auto insurance, etc.) Now I need to see what their Facebook profile looks like too. The Office of Fraud Detection and National Security, of the United States Citizenship and Immigration Service (USCIS), is advising its investigators to go out and try to "friend" persons suspected of visa or other immigration fraud. The Electronic Frontier Foundation obtained an internal USCIS memorandum through a Freedom of Information Act request, that explains how investigators could use s ...

Silicon Valley Congresswoman, Zoe Lofgren, the Chair of the House Judiciary Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law, invited Comedy Central's Stephen Colbert to Testify before the Subcommittee. This past July, Mr. Colbert invited the President of the United Farm Workers of America on his show to discuss their "Take Our Jobs" campaign. The purpose of the campaign was to highlight the fact that most Americans will not take jobs picking produce on farms. Mr. Colbert took up the offer to take a job working in the field, and he reported on his experience to the Subcommittee. ? http://www.youtube.com/watch?v=k1T75jBYeCs ? While Mr. Colbert jokingly recommends that Americans just stop eat ...

Silicon Valley large employers of a foreign national workforce should get ready for their filing fees to double for an H-1B and triple for an L-1. The filing fees to submit one H-1B petition by a company larger than 25 people has held at $2320 for a couple years ($320 I-129 petition fee + $1500 supplemental fee + $500 fraud fee). An employer can add an extra $1000 for premium processing, to have the USCIS adjudicate the petition within 15 days. Now, companies with more than 50 U.S. employees, and whose workforce is more than 50% H-1B or L-1 status, must pay an additional $2000 (H-1B) or $2250 (L-1) per new petition. This will bring the total to $4320 for an H-1B, and $3070 for an L-1 ($320 I-120 petition fee + $500 fraud fee + new $22 ...

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 Ke ...

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-fr ...

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 ...

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 ...

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 w ...

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 ann ...

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 USCI ...

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 ...

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, ...

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 c ...

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 contract ...

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 an ...

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 Dire ...

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 ...

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 s ...

Now that the H-1B season is in full swing, employers need to be wary of falling into traps with their Labor Condition Applications. An employer's lack of familiarity with the problems surrounding the Department of Labor's new I-Cert system can make the difference between having an H-1B application counted towards the 2010-2011 cap, and missing it entirely. Employers must use the I-Cert system to obtain a certified Labor Condition Application (LCA). A certified LCA must be submitted with an H-1B application. But the DOL's problems with the I-Cert system have been causing H-1B denials. Last year the Department of Labor rolled out its new "I-Cert" system for H-1B's, H-2A's, and PERM applications. H-1B employers are required to ...

It's time for Silicon Valley employers to prepare their H-1B filings for fiscal year 2010/2011. April 1st is the first day that employers can submit H-1B applications for the 2010-11 fiscal year. The fiscal year begins on October 1st, and H-1B applications can be submitted up to six months ahead of time - on April 1st. Congress sets the annual cap for new H-1B visas, and it is currently 65,000 plus an additional 20,000 H-1B visas for employees with a U.S. Master's degree or higher. Except for last year, the prior few years saw the cap reached within the first few days of April 1st. If the USCIS determines that the volume of applications the first few days of April shows that the cap will be reached, then they will conduct a lott ...

Today, U.S. Senators John Kerry and Richard Lugar proposed a new immigration law that Silicon Valley companies and investors have long supported - the Startup Visa. The Startup Visa Act would allow a foreign national entrepreneur to receive a two-year visa upon showing that a qualified U.S. investor is willing to invest at least $250,000 into the entrepreneur's startup venture. If after two years the entrepreneur can show that the venture created at least 5 full-time jobs in the U.S., and attracted an additional $1,000,000 in additional investment capital, or achieved $1,000,000 in revenue, then the entrepreneur could obtain permanent resident status. Many Silicon Valley venture capital firms signed onto a letter to the Senators ...

In my experience as a Palo Alto immigration lawyer, the number one question is the obvious one: How long will my visa application take? The USCIS service centers provide bi-monthly tables that show how long different visa applications should take. The most recent table for the California Service Center is below. http://www.scribd.com/doc/28190458/USCIS-CSC-Processing-Times-Table USCIS CSC Processing Times Table The column on the far left shows the actual Form number, and then the type of visa application. The far right column shows either a duration of months, or a specific date. If the time frame is shown as a duration of months, this mean that the time period is the USCIS' "goal" for that type of applic ...

Today's New York Times article, Report Warns Silicon Valley Could Lose Its Edge, looks to the factors that have slowed economic recovery in Silicon Valley. The article attributes the down economy in large part to the recession, reporting that Silicon Valley lost 90,000 jobs from the second quarter of 2008 to the second quarter of 2009, and that unemployment is higher than national levels. Other measures of the down economy are the decrease in the number of patents from last year, as well as the fact that last year saw the lowest number of initial public offerings of stock in technology companies since 1970. Discussing how the Silicon Valley economy may recover through new innovation and green technology, the article points out that o ...

Before you head off to your San Francisco or San Jose USCIS immigration interview take a quick look at the document below. The United States Citizenship and Immigration Service recently provided a real gem. Their immigration Fraud Referral Sheet was submitted into evidence during a removal hearing. This sheet is a checklist of possible fraud triggers, applicable to various types of immigration benefits. It appears that if a USCIS adjudicator suspects fraud in an immigration application, they would check the appropriate boxes and forward the sheet to the Fraud Detection and National Security Unit for follow up. As an immigration lawyer, I was delighted to find this sheet posted on the American Immigration Lawyers Association infon ...

Angel Island Immgration Station Today's San Francisco Chronicle profiles the complex history of Angel Island, an immigration station opened 100 years ago to process new immigrants into the United States. The article quotes a retired professor of American studies who is writing a book on the immigration status as declaring "Angel Island is a symbol of both inclusion and exclusion." More than 500,000 people passed through Angel Island between 1910 and 1940. Almost one third of them were Asian, and the immigration ...

A self-proclaimed "wiser" Lou Dobbs appeared on Bill O'Reilly's program last week to discuss immigration reform. "Wiser" means acknowledging that this country needs immigration reform legislation that goes beyond enhanced border security, and that meets the needs of the undocumented people already living here. The answer is not mass deportations. Mr. Dobbs' suggestions are consistent with prior proposed legislation, including allowing undocumented people to pay a fine, learn English, and get on the path towards U.S. citizenship. He also suggested a separate guest-worker program to help reduce continued illegal entries from Mexico. A key issue of any immigration reform providing legalization will be to dramatically increase the size o ...

Modern-day slavery takes place every day across the U.S., including the Bay area, in the form of human trafficking. It is not exclusive to impoverished, third-world countries. San Francisco, San Jose, and the communities in between include people living in modern-day slavery. The United States, including the Bay area, is a destination for thousands of people illegally trafficked into the U.S. from Mexico, East Asia, South Asia, Central America, Africa, and Europe. Trafficking includes prostitution, domestic servitude, and other forced labor. But it also includes people who we would not necessarily think are trafficking victims, such as nail salon workers, and live-in domestic help. Raising awareness is key to com ...

Employers wanting to sponsor employees for H-1B's or immigrant visas will face new legal procedures beginning January 1, 2010. Employers will need to obtain the "prevailing wage determination" through a centralized Department of Labor office in Washington D.C.. The "prevailing wage" is the average wage paid to similarly employed workers in the requested occupation, in the same geographic area. The immigration laws require that the hiring of a foreign worker will not adversely affect the wages of U.S. workers working in the occupation in the area of intended employment. To comply with the law, the Department of Labor requires the wages offered to the foreign worker to be at least the prevailing wage in the geographic area of employm ...

Yesterday U.S. Congressman Luis Gutierrez (D-IL) introduced the Comprehensive Immigration Reform for America's Security and Prosperity Act of 2009 (CIR ASAP). The video clip shows Representative Gutierrez introducing the proposed immigration law alongside members of the Congressional Hispanic Caucus, the Congressional Black Caucus, the Congressional Asian Pacific American Caucus, and the Congressional Progressive Caucus. Representative Gutierrez characterizes the proposed immigration law as (1) pro-family, (2) pro-jobs, and (3) pro-security. But one of the most important provisions, not mentioned in the video clip, is the Earned Legalization Program for the Undocumented. This provision would allow those undocumented persons, current ...

Today's San Jose Mercury News highlighted the plight of a local Cambodian woman who immigrated to the U.S. as a refugee, and has long been eligible to apply for U.S. citizenship. Ms. Chantel In was born in the 1970's in Cambodia, during the brutal reign of Pol Pot. Her family survived and immigrated to the U.S. as refugees, eventually settling in California. Ms. In has been a U.S. permanent resident (a green card holder) for several years, but has not yet applied for U.S. citizenship. The $675 USCIS application fee is just too high, and Ms. In simply cannot afford it. The San Jose Mercury News included her story as part of their seasonal Wish Book campaign. Unfortunately, USCIS fees are only expected to go higher. USCIS Director ...

Yesterday I was taken aback when I turned to the editorial page of the San Jose Mercury News, the primary newspaper of Silicon Valley, and found an Op-Ed by Patrick J. Buchanan calling for a moratorium on ALL LEGAL immigration. He argues that the LEGAL immigrants are taking jobs from U.S. workers, and that by barring all U.S. immigration the economy can recover faster. Legal immigration is not the same as "illegal" immigration. He is not talking about doing something about the high number of undocumented people living in the U.S. By calling for a halt to legal immigration, he would stop the husbands and wives of U.S. citizens from immigrating to the U.S. He would prevent the children and step-children of U.S. citizens from coming to ...

Immigrants, or foreign-born U.S. citizens, make up over 50% of Silicon Valley company founders. This, according to the Wall Street Journal article "Start-Up Visas Can Jump Start the Economy", is the evidence as to why Congress should pass an immigration law allowing for start-up visas. According to the article, even though foreign-born residents made up approximately 12.5% of the U.S. population, nearly 40% of technology company founders and 52% of Silicon Valley company founders are foreign-born. If U.S. immigration laws made it easier for bright, entrepreneurial foreign nationals to obtain a work visa to start a new company, then we would see more new business which would lead to more jobs for all. Right now, immigration laws ...

An earlier blog post "Silicon Valley Employers Need to Prepare for Surprise USCIS Visits" described the "new normal" of USCIS employees or contractors showing up unexpectedly and inquiring about past visa petitions and foreign national workers. A recently held Department of Homeland Security program, titled, "2009 Government and Employers: Working Together to Ensure a Legal Workforce" sheds more light onto the types of visits being conducted. Ronald Atkinson, Chief of Staff of USCIS' Fraud Detection and National Security (FDNS) office, explained the three types of site visits that are currently being conducted: Risk Assessment Program fraud study. Applicable to any type of benefit program, including family and employment-based visa ...

Across Silicon Valley and the rest of the U.S., many employers are avoiding layoffs by reducing employee hours or by cutting salaries. However, H-1B visa holders, and their employers, can run afoul of U.S. immigration laws if the salary is cut without a corresponding reduction in hours. An H-1B employer must attest to the Department of Labor, that the employer is paying the H-1B employee the higher of either: 1) the prevailing wage for the same occupational classification in the same area of employment, or 2) the actual wage level paid by the employer to all employees with similar experience and qualifications for the same job. When submitting the H-1B petition, the employer must state the number of hours per week that they will empl ...

More than seven months after Silicon Valley companies could first submit new H-1B applications, several thousand slots remain open. Earlier this week the USCIS reported that approximately 52,800 H-1B cap-subject petitions, and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. The annual cap for H-1B's is 65,000, plus an additional 20,000 for workers with a Master's degree or higher from a U.S. institution. This is the lowest number since 2003. The past few years has seen the cap reached within the first few days that companies could submit petitions. The reasons vary. As reported in the San Jose Mercury News, Silicon Valley tech insiders attribute the lower numbers to the economic do ...

Former Secretary of State and advisor to two presidents, Condoleezza Rice, addressed the San Jose Silicon Valley Chamber of Commerce earlier this week at their annual fundraiser. She warned about the need for immigration reform, explaining "The United States of America had better reform its immigration policy to make sure that the most ambitious people in the world still want to be a part of us. We are a society of immigrants, and if we ever think that we can close our doors, we will suffer the same fate of those in Europe and other places." As an immigration lawyer, I have posted before about the need for our immigration laws to encourage the world's best and brightest to come and stay in the U.S. As for Europe, many European countrie ...

Google CEO, Eric Schmidt, sharply critized U.S. immigration policy during a Stanford University roundtable discussion last week. Stanford University President John Hennessy participated in the roundtable and offered criticism as well. Eric Schmidt questions how U.S. immigration laws allow us to take the smartest people who are going to build companies and pay taxes, and then have them do it in another country. He argues that we bring the smartest people in the world to Stanford, educate them, and then kick them out of the country. John Henessy explained that graduate programs rely on foreign students because U.S. K-12 does not produce enough students for the graduate level. He also pushed for the Dream Act. The Dream Act would ...

Former Palo Alto resident Yong Li is apparently similar to many Chinese-born immigrants leaving Silicon Valley to return to China. This weekend's San Jose Mercury News highlighted his situation in an article titled "Silicon Valley Brain Drain: Immigrant Chinese Return to Homeland to Pursue Entrepreneurial Dreams". Mr. Li left his family in Palo Alto to start up a pharmaceutical company in Tianjin, China, with the financial backing of the Chinese government. He is representative of a wave of highly skilled immigrants returning to China to start companies. According to the article, Chinese recruiters regularly come through Silicon Valley targeting highly skilled and educated Chinese immigrants who have lost jobs, and who just graduat ...

This week the U.S. Congress headed towards a new immigration law that would allow spouses of U.S. citizens to continue, or even begin the green card process, even if their U.S. citizen spouse has passed away. To date, the United States Citizenship and Immigration Service (USCIS) has taken the harsh approach that if the U.S. citizen petitioner died, the pending green card application died as well. This harsh approach resulted in tragic consequences of widows facing deportation after the death of their spouse. The bill Congress passed this week would allow surviving spouses to apply for a green card for themselves and their children, regardless of when their spouse died or how long they were married. President Obama is expected to sign ...

Today's San Francisco Chronicle reports on the city's vote to change its policy toward undocumented juvenile immigrants. For almost twenty years San Francisco has declared itself a "sanctuary city", meaning that it will not use city funds to help enforce immigration law by reporting undocumented immigrants. But "sanctuary" does not apply to people arrested and accused of felonies, and the city refers them to Immigration and Customs Enforcement (ICE). Until last summer, the city did not apply this practice to juveniles accused of felonies, and refused to refer juveniles in custody to ICE. Last summer, San Francisco Mayor Gavin Newsom implemented a new policy requiring the police to contact ICE whenever they arrest a juvenile on felony ...

Earlier this month Silicon Valley was abuzz with the exciting news that two locals, Elizabeth Blackburn and Carol Greider had won the prestigious Nobel Prize in medicine. The two were honored for their work in DNA replication, along with Jack Szostak of Harvard who also partnered in the research. Also noted in reports was that Elizabeth Blackburn is a dual citizen of the U.S. and Australia, and that Jack Szostak was born in the United Kingdom. The significance of these prize winners' immigration backgrounds is highlighted in an article from this week's Wall Street Journal, "Immigrant Scientists Create Jobs and Win Nobels", by the President of the Massachusetts Institute of Technology, Ms. Susan Hockfield. The article digs into the i ...

The New York Times recent article, "U.S. Can't Trace Foreign Visitors on Expired Visas" highlights the case of a former Silicon Valley teen, now facing criminal charges for attempting to use weapons of mass destruction in Dallas. Mr. Hosam Maher Husein Smadi, a 19 year old Jordanian citizen, came to the U.S. in 2007 on a six month tourist visa. He briefly stayed in San Jose and Santa Clara, California, before moving to Texas. Last month Mr. Smadi was arrested after placing what he believed to be a car bomb in the garage of Dallas high-rise. The FBI had been monitoring Mr. Smadi, and provided him with the inert car bomb. The New York Times article uses this case to highlight the problem with immigration enforcement when legitimate vis ...

Suppose a U.S. government agent walks through the front door of your Palo Alto start-up, and tells the first employee seen that he is there to speak with HR about the company's H-1B employee. The employee politely informs the agent that there is no HR - it's a "start-up". The agent then studies their own copy of the H-1B petition, and states he needs to speak with the person who signed it. Of course this person (founder, co-worker, Board member) is not in the office. Is your company prepared for this scenario? The USCIS has a division called the Office of Fraud Detection and National Security (FDNS). Created in 2004, their purpose is to deter and combat immigration benefit fraud, and to assure benefits are not granted to people who ...

Like most H-1B employers, Silicon Valley employers need to start over-documenting their H-1B petitions and increasing the material provided about the sponsoring employer, as well as about the employee and the proposed job. Recent reports of fraud in the H-1B program, as well as Senator Grassley's vocal proposals to tighten screening of H-1B employers have cast a cloud of fraud onto the H-1B program. The cover article in the October 12, 2009 Business Week issue is called "America's High-Tech Sweat Shops: How U.S. companies may contribute unwittingly to the exploitation of foreign workers". This article highlights the various ways in which some H-1B employers have abused the visa system, and taken advantage of unknowing foreign natio ...

Here's a common scenario: Your Silicon Valley employer sponsors you for an H-1B visa, and then sponsors you for an employment-based green card. How long it takes to actually get your green card depends on your priority date (the date your employer submitted the first application), your visa preference category, and your country of chargeability (usually your country of birth). It can take a relatively short time, to several years. Each year 140,000 employment-based green cards can be issued. Over the years well over 140,000 annually have applied, resulting in a long queue. Once your priority date becomes "current", you can then apply for a green card. About 85% of the 140,000 green cards go to people currently living in the U.S. who apply ...

Two bright, energetic, Palo Alto-based entrepreneurs recently sent me a link to Startupvisa.com. A visa designed for the entrepreneurs of a start-up company would have been perfect for them. Instead, we had to wrestle their jobs and their company into the H-1B category. The H-1B visa permits a U.S. employer to employ a professional worker. Using the H-1B category for entrepreneurs can be challenging because often the new venture begins as a one or two-person company. A typical case is the foreign national who comes to the U.S. as a student to earn a Master's degree. While in school, they develop their own ideas for new ventures, and also develop business contacts. Upon graduating (or even before), they begin working on their new i ...

California's "best and brightest" immigrants are leaving the Golden State in search of greener pastures back home. USA Today reports on highly-skilled immigrants foregoing their American dreams to pursue careers back home. The article highlights Indian and Chinese workers who come to the U.S. to earn Bachelor's or Master's degrees from U.S. Universities, obtain H-1B visas to use their talents working for U.S. employers, begin the arduous green-card process, yet return home before the multi-year green-card process is complete. The article raises the often cited concerns that the U.S. may lose its competitive edge in science, technology and other fields as some of its smartest take their U.S. acquired knowledge and experience back to th ...