• How President-Elect Trump’s Immigration Plan Would Impact Employers & Entrepreneurs

    There’s been a lot of forceful soundbites from Donald Trump on immigration during his Presidential campaign but it’s yet to be determined how much of that rhetoric will transform into actual policy.

    From a logistical perspective, the Department of Homeland Security, who issues immigration benefits and enforces immigration rules, may be faced with changing course on how they evaluate immigration cases.  It’s not uncommon for Presidents to issue guidance and directives to federal agencies, including the Department of Homeland Security, on what priorities to focus.  While a President can issue executive orders, executive orders that unilaterally alter existing federal regulations might be challenged in court as an abuse of power.

    • Immigration laws require Congressional approval to amend
    • Immigration regulations issued from federal agencies require public notice and comment before being finalized as regulations. Any regulatory reversals would also require public notice and comment before being finalized.

    As of today, November 9th, here’s what we do know in terms of where Trump stands on immigration that would significantly impact U.S. employers and foreign entrepreneurs based on his August 31, 2016 10-Point Speech on Immigration.  (Keeping in mind that these policies were largely crafted by conservative-leaning immigration reform groups.)

     

    NAFTA and TN Visas

    Trump has lambasted NAFTA as a terrible trade agreement that hurts the U.S. and has promised to renegotiate better terms for the U.S. or otherwise withdraw if those new terms aren’t met.

    Under the North American Free Trade Agreement entered into by Canada, Mexico and the U.S., in 1994, a new professional visa category (TN visa) was created to enable Canadians and Mexicans to enter the U.S. and fulfill certain occupational work here. The Agreements allows for any party to withdraw under Article 2205, by providing written notice six months in advance to all parties.

    Impact to Employers: If the U.S. pulls out of NAFTA, it is possible employers may have to find alternative work options for TN employees in the U.S. (and for U.S. employees working in Canada or Mexico in TN status).  The timeline could be as early as 2017Q3 but more will be revealed….

     

    H-1B Visas

    As I previously indicated here, Trump wants to impose new requirements for all immigration-related visas, particular for the H-1B, by requiring employers to first test the labor market by 1) attempting to fill any open positions with U.S. workers first before hiring foreign workers and 2) by requiring employers to pay a certain prevailing wage level.  This is consistent with the 10th point of his 10-Point Ideal discussed in his August 31, 2016 speech:

    We will reform legal immigration to serve the best interests of America and its workers

    …The time has come for a new immigration commission to develop a new set of reforms to our legal immigration system in order to achieve the following goals:

    • To keep immigration levels, measured by population share, within historical norms
    • To select immigrants based on their likelihood of success in U.S. society, and their ability to be financially self-sufficient. We need a system that serves our needs – remember, it’s America First.
    • To choose immigrants based on merit, skill and proficiency
    • And to establish new immigration controls to boost wages and to ensure that open jobs are offered to American workers first.

    Employers currently already must meet prevailing wage standards in order to be approved for an H-1B visa for an employee.  While this new labor market test would be an added requirement, it must first jump through a few hurdles.  It’s unknown exactly how the labor market test will be structured, but if it’s anything like the current process for PERM, the Department of Labor may have to get involved in evaluating the sufficiency of each employer’s labor market test.  In this scenario, we’re talking months of delay due to increased backlogs and more work for any federal agency will likely mean more funding will have to be diverted to fund those operations.

    It would be interesting to see, logistically, how these new requirements would be implemented; either via federal regulatory change (requiring public notice and comment) or congressional amendment to the Immigration and Nationality Act.

    Impact to Employers: If Congress gets involved and passes an amendment to the law, then employers may have to follow these new requirements very quickly.  New requirement to meet certain wage requirements may actually end up producing a law that would pay foreign workers more than actual U.S. workers!  Additionally, the requirement to advertise for U.S. workers before being able to apply for the H-1B petition may delay innovation and corporate expansion.  As a result, multinational companies may consider offshoring jobs if the burden to hire qualified workers in the U.S. is too high.

     

    Update 11/10/2016: H-4 Spousal EADs

    Part of President Obama’s Execution Action involved enabling spouses of certain H-1B visa workers to apply for work authorization.  H-4 spouses, as they are called, could receive employment authorization documents (EADs) that would enable them to work for any U.S. employers of their choosing.  At that time, USCIS had proposed a change in regulations, made the rule available for public notice and comment, reviewed the comments and then issued a final rule as required by the Administrative Procedures Act.  In May 26, 2015, the rule went into effect.

    President-Elect Trump has stated he would “cancel every unconstitutional executive action, memorandum and order issued by President Obama” within his first 100 days in office.  If he orders USCIS to reverse course on EADs for H-4 spouses, then USCIS would have to follow the same procedures it did two years ago in notifying the public, requesting comment, reviewing comment and therefore issuing a final rule.  This may take time and likely any rule eliminated the EAD category for H-4 spouses may likely be prospective and not retroactive.

    Impact to Employers: Workers who hold an EAD based on their qualified H-4 status may possible lose the ability to continue to work after their EAD expires.  Employers may have to evaluate staffing needs in the next six – eight months, in preparation for this potential outcome.

     

    DACA Employees

    Trump has not been shy about wanting to reverse much of President Obama’s executive actions, including the Deferred Action for Childhood Arrivals (DACA) program that enabled eligible undocumented children who entered the U.S. before their 16th birthday to apply for work authorization.

    It would be within a new President’s powers to reverse the previous Executive Action as quickly as January 20, 2017, when the new President is sworn into office.

    Impact to Employers:  Employers who currently employ DACA workers may find themselves short-staffed as early as late January 2017 if DACA is rescinded by President-Elect Trump.  This is particularly alarming, as U.S. Citizenship & Immigration Service has received more than 1.54 million applications since the inception of the DACA program in 2012 and has approved more than 1.45 applications since then.  It’s unclear how many U.S. employers would be impacted by this policy change but data will likely reveal itself in the upcoming months.

     

    Startup Visa for Entrepreneurs

    President-Elect Trump has voiced little about a start-up visa for entrepreneurs.  As a serial entrepreneur himself, one would imagine he would appreciate the values and benefits that entrepreneurship carries with it.  Not so, as it appears at odds with his stance on isolation and populism. Further, even if entrepreneurs were allowed to enter the U.S. via a special visa,  if the entrepreneur stems from a country that has been historically (or is now) affected by terrorism, that that entrepreneur might now be subject to aggressive “vetting” despite their efforts, desires or ability to create U.S. jobs.

    As an aside, the U.S. Citizenship & Immigration Service had announced on September 1, 2016, the Parole for Entrepreneurs as a means to allow certain eligible, high-growth entrepreneurs to enter the U.S. to operate their business.  Comments had closed on October 17, 2016 and it’s still up in the air whether USCIS can review the public comments quickly enough to enact a final rule for the regulation to go into effect before January 20, 2017. If the regulation were to go into effect that quickly (although unlikely), the regulation could still be reversed in the future, but not without first having to go through various administrative hurdles.

    Impact to Entrepreneurs: We won’t know if the Parole for Entrepreneurs will go into effect, only to be later reversed, or if it will go into effect at all.  We also won’t know if the President-Elect will push forward a startup visa bill for Congress to pass that would jump-start innovation.  We’ll have to have wait and see what the next administration brings.

    ***

    As a general aside, the rhetoric from Trump about deporting millions of undocumented immigrants in the U.S. is not typically a topic that is discussed on this website.  However, it’s important to understand that a policy of this magnitude and impact would require significant taxpayer funding; funding that would need to be appropriated by Congress to support and execute.  It’s yet to be seen if the U.S. has room in its budget to finance this policy endeavor.

    Find this article helpful?  Please share with your network and subscribe to this blog to stay updated.

  • How Clinton and Trump 2016 Campaigns Compare on Immigration

    Both Hillary Clinton and Donald Trump have ambitious plans for immigration if either are to be elected president of the United States of America.  Today’s article addresses some of their finer points on immigration and provide details on how those plans might impact U.S. employers, entrepreneurs and investors.  (For the sake of brevity, we’re only focusing on the two leading candidates.)

     

    Greencard for International STEM Graduates

    Candidate’s Position:  As part of a comprehensive immigration reform, Hillary Clinton would develop a path for permanent residence for all international students who matriculate from an accredited university with a masters or doctoral degree in a STEM field.

    Practical Impact:  Huge!  (Or as some would say, Yuge!)  From an economic perspective, the U.S. would ultimately become the leading destination for all foreign students eager to study a STEM field in the U.S.  No doubt many U.S. universities would likely see an increase in revenue from tuition rates for foreign students.  The ability to retain talented STEM-educated foreign students also means these students can pursue additional research, start new companies, or be hired right off the bat by leading companies and bypassing the H-1B lottery entirely.  This might actually alleviate the H-1B visa quota.

    Feasibility Prediction: Moderate.  In order to implement a new pathway towards obtaining a greencard, a bill would need to pass both the Senate and the House (Congress) by a simple majority vote in order to be approved, reconciled, and presented to the President to be signed into law.  (This particular proposal cannot be implemented through Executive Action.)  Any immigration reform bill would therefore need to be structured in a way that aligns the interests of a majority of Congressional members.  (See how laws are made here.)  Therefore, the makeup of Congress is a huge factor in determining the likelihood of a comprehensive immigration reform bill being passed.

    Opposing Candidate’s Position: Donald Trump’s position in general is to ensure U.S. workers have a chance at the job market.  It’s unclear where he stands on this specific issue at the time of publication.

     

    H-1B Visas

    Candidate’s Position: Donald Trump would abolish the H-1B visa as it is currently structured and require employers to test the labor market first before sponsoring a foreign worker for any employment visa.  There would be no exceptions.

    Practical Impact:  This proposal would impede economic growth.  For example, a multinational company would not be able to send its foreign managers to develop product in the U.S. without first attempting to hire U.S. workers to fulfill those roles.  In this example, if there are no other internal employees in the U.S. qualified to fulfill that role, and the foreign managers are in the best position and possess proprietary knowledge to develop the company’s product, it’s unclear how forcing the employer to test the labor market would enable the company to develop the product any faster.  Employers would be required to test the labor market for all work visas, which would delay hiring, delay product development, delay service fulfillment, etc.  The Department of Labor would likely experience an influx of labor certification applications as a result, and will likely have significant backlogs.  Meanwhile, other countries that have more generous laws on intra-company workers would see greater economic growth.

    Feasibility Prediction:  Low.  While Congress may be amenable to imposing a labor market test for certain types of employment visas, such as the H-1B visa, a blanket requirement for all employment visas would likely not pass Congress approval.

    Opposing Candidate’s Position: Hillary Clinton’s position on immigration reform does not specifically address H-1B visas, but does address the need to provide less burdensome methods for employers to recruit and retain foreign workers.

     

    Start-up Visa

    Candidate’s Position:  Hillary Clinton would develop a start-up visa allowing top entrepreneurs, who have secured financial support from U.S. investors to enter the U.S. to build technology-oriented companies.  Job creation and performance milestones would be part of the criteria for pursuing a greencard.  This too would be another component of Hillary Clinton’s comprehensive immigration reform bill.

    Practical Impact:  This proposal appears to be much broader than the Proposed Parole for Entrepreneurs by allowing entrepreneurs to demonstrate financial backing from any U.S. investor (rather than limiting it to venture capital firm with an established track record.)  If passed into law, Clinton’s start-up visa would superseded parole for entrepreneurs.  The balance of Clinton’s proposal for a start-up visa is still vague, but the good news is that it aims to provide a path to permanent residence rather than merely temporary work authorization.

    Feasibility Prediction:  Moderate.  See Greencard for International STEM Graduates, above, for a detailed explanation.

    Opposing Candidate’s Position: Donald Trump’s position on this issue is unknown at the time of publication.

     

    Mandatory E-Verify

    Candidate’s Position:  Donald Trump would require an E-Verify system to be mandated nationally for all employers to prevent unauthorized employment of foreign workers.

    Practical Impact:  All U.S. employers may be required to enroll in the E-Verify system in conjunction with completing the Form I-9.  Although the current system is free, employers should be aware that failure to utilize the system properly (or at all), or discriminating against authorized workers may result in potential fines from Immigration Customs Enforcement.  Additional investment in time and training may be required of employers.

    Feasibility Prediction: High.  It is likely that any comprehensive immigration reform bill will contain a provision moving E-Verify from a voluntary system to a mandatory system for all U.S. employers.  To learn more about the program, please contact us for details.

    Opposing Candidate’s Position: Hillary Clinton’s position on this issue is unknown at the time of publication.

     

    Export Control Reform

    Candidate’s Position: Hillary Clinton indicated that she would “advance Export Control Reform, pursue policies to protect U.S. trade secrets and IP, and resist calls for forced tech transfer or localization of data.”

    Practical Impact: Private U.S. employers who manufacture, sell and distribute sensitive technologies and associated data must comply with export control laws, including the International Traffic in Arms Regulations (ITAR) and the Export Administration Regulations (EAR) to prevent those technologies from being accessed by unauthorized foreign nationals.  Efforts for accelerated reform may impact U.S. employers.  Companies that have historically employed highly qualified foreign nationals in the past may find those existing employees may now require heightened security clearances, which can only be achieved through obtaining permanent residence or citizenship.

    Feasibility Prediction: High.  Export Control Reform has been moving forward since at least 2014. Desire to tighten security around sensitive technologies and data, in light of recent cyber-attacks is strong and will likely gain bipartisan support.

    Opposing Candidate’s Position: Donald Trump’s position on this issue is unknown at the time of publication.

     

    J-1 Visa

    Candidate’s Position: Donald Trump would abolish the J-1 visa classification and instead offer “job opportunities to inner city youth.”  (This position appears to have been removed from the official Trump website so it’s unclear if this is still his official position.)

    Practical Impact:  The J-1 visa program contains 14 different programs at the moment, covering professor and research scholars, physicians, au pairs, camp counselors to summer workers (to name a few).  It’s unclear if Trump’s position is to abolish the entire J-1 visa classification, or just one program within the classification.  For example, the J-1 Physician program is an important pipeline that encourages U.S. trained medical physicians to practice medicine in underserved areas throughout the U.S. suffering from a severe shortage of medical professionals.  The J-1 Professor and Research program enables collaboration with foreign academicians in the U.S. to promote research and development of all kinds of research, producing results that significantly advance scientific and academic fields.  Abolishing the J-1 program in its entirety would be akin to throwing the baby out with the bath water.  U.S. research institutions would be unable to invite foreign scholars and researchers to the U.S. to collaborate on research.  It’s unclear what alternative would be available to them.

    Feasibility Prediction: Low. Abolishing an existing visa program that was enacted by law would require Congressional sponsorship and approval.  It is unlikely Congress would abolish the program entirely without offering a replacement that addresses the majority of the visa’s 14 programs.  Summer work programs may ultimately be revised to require U.S. employers either recruit U.S. workers, or agree to pay some sort of prevailing wage above and beyond minimum local, state or federal standards.

    Opposing Candidate’s Position:  Hillary Clinton’s position on immigration reform does not specifically address J-1 visas but her overall desire to initiate comprehensive immigration reform indicates a desire to address the pitfalls of plaguing the current J-1 visa classification.

    ***

    Stay tuned for more updates on what the post-election landscape may look like!  Subscribe to our blog to receive email alerts!

  • How to Decipher and Read the U.S. Visa Bulletin

    Every month, around the end of the first week, the Department of State issues a Visa Bulletin to inform the public how many immigrant visas have been issued (i.e.: how many greencard “slots” have been issued.”)  The charts on the visa bulletin are a bit confusing because there are many different categories and countries.  Sometimes, the indications move backwards (“retrogress”) instead of moving forwards, thereby making wait times for a greencard even longer.

    How exactly does one decipher and read the Visa Bulletin?  While there are plenty of articles, there are few visual aids.  We’re attempting to tackle this task today!

    Read Me First: The Visa Bulletin indicates when a foreign national may either submit their greencard application, or, if the application has already been submitted, when the government is currently reviewing that application.  “When” this occurs is based on when the underlying immigrant petition was initially submitted to USCIS.  That date is considered a “priority date” and will be notated on the immigrant visa petition approval.

    Step 1: Visit the Department of State’s Visa Bulletin webpage.  There are usually links to the current month and the next month’s chart.  There are also links to archived bulletins from past years.  Select the link you wish to inspect.

    US Visa Bulletin

    Step 2: Locate your “Preference” charts.  The Preference is the basis for which the applicant is eligible to apply for a greencard.  There are three preferences:

    1. Family Preference: when a relative sponsors you for a greencard
    2. Employment Preference: when you are eligible to apply for a greencard through employment purposes
    3. Diversity Lottery Preference: when you are eligible to apply based on the Diversity Lottery. Read more about it here.

    Today’s article focuses on the second preference based on employment charts.  (You’ll notice there are two charts under this preference.  Chart A. Final Action Dates is normally the default chart.  We’ll address the issue of why there are two charts at Step 4).

    Step 3: Locate your Employment-Based (EB) preference category.  For example, let’s say your employer filed an immigrant petition based on the EB-3 category.  Then your preference category would be “3rd”.  Then, locate the country you were born.  The intersection where the preference category meets the country of birth is the visa date the government is current reviewing greencard applications.  In the example in the illustration below, an Indian national who is 3rd preference category would have a visa date of March 8, 2005.  This means that if the priority date on the Indian national’s I-140 immigrant petition approval notice is March 8, 2010, the Indian national would be waiting another five years before her priority date will be current and she will be eligible to submit her greencard application.  (Note that if she had already submitted her greencard application, then the government will review her application once her priority meets or precedes the visa date indicated on the Visa Bulletin.

    How to Read US Visa Bulletin

    Q:  What if the intersection date say’s “C”?  “C” stands for current.  Priority dates that are current means that applicants who submit their greencard applications need only to wait as long as it takes an officer to review the case.  They applicant doesn’t experience the long delays that are found in other preference categories.

    Q: Why is 1st Preference Category current for all country nationals?  This is usually the case because the number of applicants in this category seldom exceed the visa quota imposed in this category.  In other words, when there are plenty of visas allotted for that category, and the number of applicants are low, the visa dates are almost always current.

    Q: I checked last month and my priority date preceded my preference category date.  This month, when I checked again, I noticed the date moved backwards.  What does this mean?  When visa dates move backwards from the prior month instead of advancing, this means that visa numbers “retrogressed.”  This is a calibration method by the Department of State.  The Department of State controls the Visa Bulletin but both the Department of State and USCIS issue visa numbers.  As a result, USCIS must report to the Department of State how many visa numbers were by USCIS so that the Visa Bulletin can be adjusted.  Sometimes, part of that adjustment means that visa dates retrogress in order to ensure the correct amount of visa numbers are issued for the fiscal year in that preference category.  (There is a finite number of visas that can be issued per category.)

    Step 4: Why are there two different Employment-Based charts and what do they mean?

    vb3

    Back in the days when only one chart was used, Chart A. Final Action Dates was the only chart.

    Chart B. Dates for Filing was the delayed implementation of President Obama’s Executive Action recommendation in November 2014 for the Department of State to modernize its greencard backlog.  It was first introduced back in September 9, 2015 for October 2015’s Visa Bulletin but quickly created a lot of confusion.  A revised October 2015 Visa Bulletin was issued on September 25, 2015.  The basis for the second chart was to equalize the amount of time individuals would generally have to wait to submit their greencard applications.  USCIS process applications from individuals in the U.S. waiting to apply for their greencards whereas the Department of State processes applications from individuals waiting.  The wait times for either queue were not equitable so Chart B was meant to equalize the wait times.

    Q: How do I know whether I should use Chart A or Chart B?  If you are waiting in the U.S. and planning on “adjusting your status”, then you may use Chart B only when USCIS had indicated it is okay to do so.

    Step 5: You can determine when USCIS says it’s okay to rely on Chart B usually by mid-month of each month. USCIS will update is visa bulletin instructions webpage and instruct whether to use “Final Action Dates” chart or “Dates for Filing” chart for both the current month and the next month.  (See screenshot below.)

    Final Action or Filing Date Chart

    So there you have it; a very easy tutorial on how to read the Visa Bulletin.  If you want more tips like this, subscribe to this blog!

  • Six Nobel Laureates are U.S. Immigrants: Outstanding Researchers!

    The Nobel Foundation awarded Nobel prizes to six researchers in the U.S., all of whom are immigrants.  It is self-evident that significant research and discovery is not and should not be bound by borders.  In fact, because immigration has been such a hot topic during this year’s presidential campaign, some of the Nobel Laureates have spoken out.

    Nobel Laureate in Chemistry, Sir J. Fraser Stoddart, a native of Scotland, United Kingdom, immigrated to the United States and become a naturalized citizen in 2011.  He teaches at Northwestern University but has a historic career as in chemistry.  Sir Stoddart made the following comments during a recent interview:

    I think the resounding message that should go out all around the world is that science is global … as long as we don’t enter an era where we turn our back on immigration. … It’s particularly pertinent to have these discussions in view of the political climate on both sides of the pond at the moment. … I think the United States is what it is today largely because of open borders.

    Professor Duncane Haldane, Nobel Laureate in Physics this year, currently teaches at Princeton University.  As a native of the United Kingdom, he commented that the U.S. immigration process was a “bureaucratic nightmare for many people” despite the fact that the U.S. is one of the most desirable places for researchers to conduct and obtain funding for their research.  “There’s a tradition of funding very fundamental research without regard for it being ‘useful,’”.

    To date, the United States remains in the lead with the most number of Nobel Laureates.  Of those Laureates, 40% are immigrants to the U.S. based on an analysis conducted by Stuart Anderson of the National Foundation for American Policy in June 2014.  Mr. Anderson largely credits the openness of the scientific community to immigrants based on the passage of the U.S. Immigration and Nationality Act of 1965 (which removed discriminatory quotas against Asian immigrants) and the Immigration Act of 1990 (which increased employment-related permanent visas).

    While some of the rise in indicators like immigrant Nobel Prize winners reflects an overall increase in the reputation and capability of American institutions and researchers post-1960, a greater openness to immigration helped make the United States the leading global destination for research in many different science and technology fields, including computers, cancer research and many others.

    Other Nobel Laureates in Physics include Professors David Thouless of Yale University and Michael Kosterlitz of Brown University, both natives of the United Kingdom; Nobel Laureates in Economics are Professors Oliver Hart of Harvard University, a native of the United Kingdom as well, and Bengt Holmström of the Massachusetts Institute of Technology, a native of Finland.

    2016 Nobel Laureate U.S. Immigrants chart

    Of course, honoring U.S. Nobel Laureates who are immigrants isn’t a new thing as there are plenty of articles that cover this each year, including this article.  It happens every year, when the Nobel Foundation announces it winners.  Invariably, the winners are immigrants who have moved to a new country to seek out better opportunities.

    One of the categories to immigrate to the U.S. permanently is the Outstanding Researcher category. While winning a Nobel Prize is an automatic qualifier, a researcher who has at least three years of research experience may also meet any two of the six criteria below, in order to be considered for a fast-track towards a greencard by USCIS:

    1. Evidence of receipt of major prizes or awards for outstanding achievement
    2. Evidence of membership in associations that require their members to demonstrate outstanding achievement
    3. Evidence of published material in professional publications written by others about the alien’s work in the academic field
    4. Evidence of participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field
    5. Evidence of original scientific or scholarly research contributions in the field
    6. Evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the field

    Curious about the Outstanding Researcher categories for a greencard or other categories?  Send us your comments or reach out!

  • SB1001 on Unfair Immigration Practices: An Alert for California Employers

    California Senate Bill 1001 on Unfair Immigration-Related Practices was signed by Governor Jerry Brown and goes into effect on Jan 1, 2017.  California employers, and employers who hire workers in the state of California, should take notice of SB1001.

    The text of SB1001 emphasizes the need for employers to be mindful of the rules regarding what type of documents to accept from foreign employees when verifying employment during the I-9 process.  If employment documents appear to be genuine, employers should not request additional documentation.  Employment documents should also not be rejected on the type of employment classification, or based on an impending future expiration of the employment document.

    SB1001 also codifies these rules, along with penalties for violations, under a new California Labor Code subsection 1019.1.  Violations may be lodged by a job applicant or an employee, or their representative.  The California Labor Commissioner may impose a penalty of up to $10,000 per violation.

    The bill arose from concerns raised by public interest groups that employees who presented an Employment Authorization Document “EAD” based on the Deferred Action for Childhood Arrivals (DACA) program were disparately treated during the I-9 process by employers.

    As a rule of thumb, rejecting job applicants because they will need an employer to sponsor a visa (such as an H-1B visa) is permissible, according to the Office of Special Counsel “OSC” for Immigration-Related Unfair Employment Practices.  An employer may choose not to employ individuals who will require employer-sponsorship of a work visa.  Employers may even prefer certain classes of non-immigrant workers over other non-immigrant classes of workers (e.g.: preferring F-1 OPT STEM over an F-1 OPT without STEM).

    On the other hand, the OSC has warned that employers should be careful to avoid causing confusion from its pre-employment questioning.

    Asking job applicants detailed questions about their immigration or citizenship status may deter individuals who are protected from citizenship status discrimination, such as refugees and asylees, from applying [for the job] due to a misunderstanding about their eligibility for the position.

    Additionally, employers should be mindful of whether or not their hiring practices, in general, might appear to prefer candidates or employees based on the candidates’ country of origin.  This is especially a tricky area for employers who are vetting candidates who have an EAD, since EADs are issued based on numerous classifications ranging from asylee/refugee status, to Temporary Protected Status (TPS) and DACA.  Some individuals who receive an EAD may fall under the “protected class” of individuals under immigration anti-discrimination laws.

    Therefore, the types of permissible questions employers may ask during pre-employment screening should be carefully evaluated prior to deployment.  Employers should consult with an experienced immigration attorney to help design a hiring policy that is in compliance with both federal and California rules.

    For more updates on I-9 news, please subscribe to our blog.

  • 9/11 Remembrance

    September 11, 2001 is a day that anyone who can recall will.

    I was working at an immigration firm in Los Angeles at the time and remember driving into work that morning. I had arrived at work and was devastated to learn the news.  The cafe downstairs from where I worked was broadcasting the events as they unfolded and it was one of the most somber days in my life.

    As I reflect on this day, I want to honor all of those who lost their lives and sacrificed their lives to save the lives of others.  Despite the tragedy, this great country is still a bastion of hope and dreams.  It continues to be great and continues to be destination for world.

  • Finding the Right Immigration Attorneys

    Finding the right immigration law firm depends primarily on your company’s size and needs.  The common mistakes most employers make is confusing needs and wants.  Below are common needs based on the company’s stage of development.

    StartUp Companies.  At the early stages of development, finding an immigration provider that can help prepare an H-1B or answering your questions about a foreign student’s OPT options is critical.  But the attorneys should also be skilled in guiding you through this growth stage because your internal resources for navigating the immigration minefield is limited.  The ideal provider should assist with

    Providing basic Immigration 101 training to your HR team or Recruiters

    Being creative with alternatives to an H-1B in the event your desired employee candidate missed out on the H-1B lottery or wasn’t selected.

    Helping to develop compliance programs with your HR.

    Your immigration counsel should be willing and able to provide a high level of service, to get your company on the right track for growth.  This includes direct contact with employees and candidates.

    Small/Medium-Sized Businesses.  At this stage of growth, the employee count is usually in the low hundreds but growth is either steady or fast.  This means your HR is actively working on expanding its internal offerings and a Recruiting Team is entrenched in that relationship with HR.  Your immigration counsel should serve as your partner to help you scale, attract and retain employees.  They should

    Work with your recruiters to develop recruiting tactics that distinguishes your company from your competitors.

    Help your HR department develop immigration policies that align with your company’s vision (and make it attractive to employees)

    Review and revise existing immigration compliance programs to ensure legal compliance

    Provide fast turnaround on immigration cases.  Nothing says awesome like on-boarding a newly transferred recruit in a week!

    Providing cutting-edge technology to reduce inefficiencies.  At this stage of growth, direct attorney to employee contact may have to be reassessed in order to scale efficiently.

    Large Enterprises.  At this stage of growth, most companies are seeking Immigration Attorneys to provide them with optimized servicing, not white-glove service.  Because thousands of employees are being relocated from one unit to another, or hundreds of candidates are hired monthly, the volume alone requires the vendor to already have efficient systems in place to manage the workload.  With the exception of high-level executives, most employees will probably not receive direct and detailed contact from attorneys.  The Immigration Partners would

    Work with your recruiters to communicate relocation status of transferees and recruits.

    Carry out and reinforce immigration policies through widespread information dissemination to employees.

    Review and revise existing immigration compliance programs to ensure legal compliance

    Provide automated systems to ensure fast on-boarding of employees and processing of immigration cases.  This usually means providing a platform for employees to update data, check status, and understand how the immigration policy is being executed.

    The favorite topic of many companies, regardless of what stage of growth they are in, is SCALING. But scaling when you’re a 2-person company and scaling when you’re a 20,000-person company require vastly different approaches.  Remember those points and you’ll secure the right partner any day!

  • Welcome! Visa Pit Stop

    Visa, pit stop.

    Welcome!  If you’ve ever made the long trek from the Bay Area to Southern California by car, there is the inevitable pit stop along the way.  That temporary detour is not only an opportunity for a refresher, to unwind and unload (literally), but also a chance to experience something new, be surprised (good or bad), and possibly have your thoughts provoked!

    This blog aims to do just that- provide you with an interesting point of view about things related to visas and immigration, before you start your work day, or before you wind down for the evening.  It’s also my pit stop before getting back to work as an immigration attorney changing people’s lives.

    Feel free to send me your thought-provoking ideas.