• NPR Talks H-1Bs with Immigration Attorney Ann Cun

    The topic of H-1B Visas has been on the top of many lawmakers’ minds.  On Monday, February 13, 2017, National Public Radio’s All Things Considered Host Robert Siegel interviewed Immigration Attorney Ann Cun to discuss why U.S. tech employers opt to hire foreign workers.

    Listen to the broadcast below.

    One of the most interesting portions of the conversation, which did not air, occurred when NPR host Robert Siegel inquired about whether NPR had also hired H-1B workers and if there was a way to find this out.  After some research on the internet, it turned out NPR had indeed submitted a few applications in 2016 to the Department of Labor in connection with what would eventually become a part of any H-1B petition that would have been submitted to the U.S. Citizenship and Immigration Services.  This fact was eventually spliced into the segment airing at the very end.

    The ubiquity of the H-1B visa would actually surprise many of its critics.  While many critics bemoan a program that is [allegedly] wrought with abuse by U.S. employers, critics would also be surprised at how entrenched our society has become in our reliance upon technology, therefore necessitating high-tech workers, even if they are foreign-born. These industries include restaurants and hospitality, traditional retailers, news corporations, entertainment companies, as well as the service providers like consulting companies.  In fact, many of the news corporations that often report on the complexities of the H-1B visas also rely on H-1B workers themselves (i.e.: Viacom, CBS, Comcast, Fox, Time Warner, Time Inc., and Hearst).  That’s because technology plays a vital role in how consumers digest information.

  • Four Immigration Bills Impacting H-1B Workers

    The H-1B program as we know it may be changing in the near future but just how quickly those changes occur will depend largely on how quickly Congress can review and vote on the bills.  As of today, four bills have been introduced (and reintroduced) by various congress-people.  As a reminder, a bill has no immediate impact on existing visa programs until the bill has been signed into law.  That, is inherently the challenge with our government.  (Click here for details on how bills become law.)

    Bill #1: H.R.170 Protect and Grow American Jobs Act

    Introduced on January 3, 2017 by Rep. Darrell Issa (R – CA)

    The bill has a limited scope applicable only to H-1B dependent employers.  H-1B dependent employers employ

    • ≤ 25 full-time employees, of whom 8 or more are H-1B workers; or
    • 26 – 50 full-time employees, of whom 13 or more are H-1B workers; or
    • 51 or more full-time employees of whom 15% or more are H-1B workers.

    (Full-time employees are individuals who work 35 or more hours per week according to the rules set by the U.S. Department of Labor.)  Currently, employers who are dependent on H-1B workers must undergo additional recruitment of U.S. workers and attestations in order to continue to hire H-1B workers.  In order to bypass those additional requirements, H-1B dependent employers may attest to paying their H-1B workers $60,000 per year or more, or hire individuals who hold a master’s degree or a higher degree.  Under H.R. 170, the bill would raise the $60,000 minimum to $100,000 and eliminate the master’s degree option entirely.  The impact of the bill is aimed squarely at H-1B dependent employers and would have little impact on most U.S. employers generally.

     

    Bill#2: H.R. 392 Fairness for High-Skilled Immigrants Act of 2017

    Introduced on January 10, 2017 by Rep. Jason Chaffetz (R – UT) and 24 other co-sponsors with a total of 66 co-sponsors to date (as of February 12, 2017).

    Current immigration quotas (as set by Congress) dictate that no more than 140,000 greencard (visas) be issued per fiscal year for those being sponsored through employment, and no more than 226,000 greencards be issued for those being sponsored by family.  In addition, no country may be issued more than 7% of the quota total per fiscal year (this additional rule is called the per country limitation rule).  In practice, the per country limitation rule has created significant backlogs in the “greencard line” for many individuals emigrating to the U.S. from countries like China, India, Mexico and Philippines.  In fact, its not uncommon for a Canadian to be instantly eligible to apply for a greencard whilst their Indian counterparts must wait 8 years or greater for the same employment category.

    H.R. 392 seeks to remove entirely the per country limitations for individuals seeking a greencard based on employment sponsorship.  This would help to speed up the waiting periods for those immigrants who have been waiting for years.  Their ability to obtain greencards would also promote greater job portability.

    For individuals being sponsored by family members, the bill seeks to raise the per country limitation from 7% to 15%, which would also alleviate some of the waiting periods for individuals.

    The bill also removes caps for Chinese Students seeking to immigrate to the U.S.

    Although the bill does not directly seek to change the H-1B program, if passed, its impact would trickle over to H-1B visa holders.  It levels the playing field for all immigrants waiting for their greencards to be approved, regardless of which country they were born.  Rather than having to rely on one employer to sponsor an H-1B for multiple years (8+ years for Indian nationals), workers may have a much shorter waiting period for their greencards.  Faster greencard processing times means greater job mobility for workers means greater competition for skilled labor.

     

    Bill #3: S.180 H-1B and L-1 Visa Reform Act of 2017

    Introduced on January 20, 2017 by Sen. Chuck Grassley (R – IA), Sen. Dick Durbin (D – IL), Sen. Sherrod Brown (D – OH), Sen. Richard Blumenthal (D – CT)

    S.180, as introduced, would revise the H-1B program in many ways.

    1. It would impose priorities on how the H-1B visa is allocated with priority given to advanced degree holders in STEM fields.
    2. All H-1B workers would be required to obtain a U.S. degree (or a foreign equivalent).
    3. Employers would be required to pay a fee to submit a Labor Condition Application to the U.S. Department of Labor. (There is currently no fee.)
    4. The U.S. Department of Labor would be empowered to demand employers comply with the rules (or face penalties) and conduct investigations based on fraud or non-compliance (for both H-1B and L-1 workers) and provide U.S. Citizenship & Immigration Service with any documentation necessary to investigate employer non-compliance.
    5. The U.S. Department of Labor would be required to conduct annual audits of companies with 100 or more employees if more than 15% of those employees are H-1B workers.
    6. The U.S. Department of Labor may hire additional 200 employees to administer its H-1B program.
    7. The H-1B program would be reduced from 6 to 3 years. A 3-year extension would only be allowed for workers who can demonstrate extraordinary ability or have advanced degrees or who are professors.
    8. Consulting companies are specifically excluded from utilizing the H-1B visas for its workers.
    9. Employers would face stiffer penalties for displacing U.S. workers with H-1B workers and face additional penalties for employee lost wages and benefits.
    10. Employers would no longer be able to hire L-1B workers based on specialized knowledge for more than one year, if the worker will be placed at a third-party site rather than the employer’s worksite, unless a waiver has been obtained from the U.S. Department of Labor.
    11. Employers may not replace a U.S. worker with an L-1 worker.
    12. Additional rules will be imposed for L-1 workers, including work location, minimum salary rates, working conditions and employer penalties.

    Of the four bills indicated in our article today, this bill is the most ambitious in revising the H-1B program.  It imposes lots of penalties and changes to both the H-1B program and the L-1 program and seeks to eliminate an entire industry (consulting companies) from existence in the U.S.  Moreover, the attempts to remove as many business operating decisions from the discretion of employers.

    The bill, if enacted into law, would be prospective, but it doesn’t clarify what would happen to the hundreds of thousands of H-1B workers in the U.S. who had previously qualified for H-1B status based on years of experience in the field (or a combination of experience and education).  Moreover, it leaves open as to how foreign degrees would be determined to be the equivalent of a U.S. degree, when many countries operate on a three-year university degree whilst the U.S. uses the four-year standard.

    We’ll dig deeper into some additional questions this bill raises (more than it answers) so stay tuned to this blog.  If you have questions, feel free to leave us a comment.

     

    Bill #4: H.R.670 High Skilled Integrity and Fairness Act of 2017

    Introduced on January 25, 2017 by Rep. Zoe Lofgren (D – CA)

    H.R. 670 also attempts to raise the bar for employers seeking H-1B visas for their workers.  Unlike S.180, which whacks all business necessity rationale out of the H-1B and L-1 programs and imposes heavy-handed rules, H.R. 670 uses a market-based approach. If employers really want to hire a skilled worker, they must pay for it!

    1. Wages for H-1B workers will go up but a lot! Rather than use the 4-tiered system currently in place, the U.S. Department of Labor will be required to conduct a new survey using three tiers.  Based on those three tiers, employers who pay the most (i.e. X% of Tier 3 wages) will receive priority for hiring H-1B workers.  (I’m oversimplifying the math for brevity’s sake.)
    2. The bill also factors in much of what H.R. 170 (above) proposes, by raising the H-1B dependent-employers exemption from $60,000 to almost $130,000 and also eliminating the master’s degree allowance.
    3. The bill also factors in H.R. 392 (above) by removing the per-country limitations as well for employment-based immigrants.
    4. Sets aside 20% of the annually allocated H-1B visas for small and start-up employers (50 or fewer employees) to ensure small businesses have a chance to compete for high-skilled workers.
    5. Removes hurdles to allow F-1 students to apply for a greencard.
    6. Requires employers to legally make available copies of the H-1B petitions to their workers as well as all approval notices.

     

    It will take a long time for Congress to convene and the bills to traverse its way through committees, subcommittees and debates.  In other words, it will be a while before the bills have any actual impact on H-1B workers or U.S. employers but don’t be surprised by surprises.  This year is proving to be very eventful.

    ***

    Some of you might also be pondering the big question of what would happen if President Trump issues an Executive Order that impacts that the H-1B program.  How quickly would the program be revised?  Would salaries be impacted?  Would it impact this year’s H-1B lottery?  Want to learn more?  Stay tuned for an update by subscribing to our blog.

  • Implications of Retired General John Kelly’s DHS Secretary Nomination

    On December 7, 2016, President-Elect Trump unofficially announced retired Marine General John Kelly as his nominee for the cabinet position of Secretary of the Department Homeland Security (DHS).  Who is John Kelly and what does this mean for immigration in the U.S. for the next four years if he is confirmed as the new Secretary?

    Who Is General John Kelly?

    General John Kelly served in the Marines for over 40 years.  He is a Gold-Star Father who lost his youngest son, Marine 1st Lt. Robert Kelly in 2010 while in Afghanistan during combat.  General Kelly’s last post was serving as U.S. Southern Command in 2012 managing security threats from South and Central America.  He’s also been at odds publicly with President Obama on the handling of Guantánamo Bay operations.

    Based on his history of managing security threats for the U.S. Southern Command, General Kelly is described as vigilant and familiar with the practical threats posed from the south.  He’s pursued strategies described as “soft power” rather than imposing overt military force on security threats like organized crime and drugs to protect the southern borders.  It is this expertise from which General Kelly can draw if he heads up the DHS.

    How Will General John Kelly Lead the DHS?

    The good news is that reports indicate General Kelly has been in contact with the current Secretary of Homeland Security, Jeh Johnson.  The bad news is if the General is confirmed, he’ll inherit a troubled agency comprised of seven different sub-agencies.

    Customs and Border Protection

    One of the promises Trump campaigned on was to build (or extend) a wall between the U.S. and Mexico.  As Secretary, General Kelly will have to explore how this campaign promise can be accomplished.  Which stretches of the U.S.-Mexico border will receive a “wall”?  The Customs and Border Protection agency has been faced with sagging morale and additional walls without strategic interior enforcement efforts may be an exercise in futility.

    Immigration and Customs Enforcement

    In his acceptance for the nomination, General Kelly said

    The American people voted in this election to stop terrorism, take back sovereignty at our borders, and put a stop to political correctness that for too long has dictated our approach to national security. I will tackle those issues with a seriousness of purpose and a deep respect for our laws and Constitution.

    While it is premature to be speculating, it does beg the question where a Muslim Registry would fit into the constitutionality of the laws of this country. Does General Kelly and President-Elect Trump see eye-to-eye with an ethnic registry?  When it comes to national security, would prosecutorial discretion have a place when Immigration and Customs Enforcement is out arresting individuals?  Would our deserts be propagated with an influx of detention centers as a means to house the millions of detained immigrants?  These are the issues General Kelly will inherit and must answer to voters and taxpayers.

    Immigration Benefits and Practices

    Perhaps, most curiously on our readers’ minds are how will existing immigration policies change, if at all, under Secretary Kelly?

    If the General is focused on border security and national security, will he have time to review policies that improve avenues for entrepreneurship; make it easier for foreign students and scholars to obtain greencards; allow employers wider latitude to recruit foreign workers when they have difficulty filling those positions with U.S. workers; and what will become of the nearly one million DACA recipients who may be left unemployed if DACA is disbanded?

    *  *  *

    Stay tuned for future updates on the immigration and how it might impact you, your company or your startup.  Subscribe to this blog to stay updated. Share this article with your friends or colleagues.

  • 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.

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  • 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!

  • Difference Between Visa and Parole

    The recent announcement by USCIS for International Entrepreneurs spotlighted a nuanced concept that is relatively unknown to most: Parole.  The proposed rule for International Entrepreneurs would allow foreign nationals to enter and stay in the U.S. for an initial 2-year period (with the possibility of renewing for an additional 3 years).

    Under formal admission rules, in order to temporarily work in the U.S., foreign nationals must satisfy the eligibility requirements outlined in immigration regulations.  Once the eligibility has been met, and if they are outside the U.S., the foreign national may then apply for a visa at a local consulate or embassy.  The visa allows the foreign national to enter the U.S.   S/he is then issued an immigration status upon entry to the U.S. that is consistent with the type of visa that was issued in their passport.  (Example: if the visa was H-1B then upon entry, the foreign national’s official immigration status is “H-1B” and would be reflected on her/his I-94 arrival departure record.)  This process constitutes a “formal” admission into the U.S.

    The proposed rule to grant foreign entrepreneurs parole, rather a separate temporary visa status, is based on the fact that USCIS has a lot of discretionary powers. While the grant of parole to enter the U.S. is legal, it does not constitute a formal admission into to the U.S.  Furthermore, unlike what we normally associate in layman’s terms with a criminal being released from prison early, USCIS granting parole has nothing to do with criminal matters.  In practical terms, parolees are allowed to enter the U.S. under a completely different set of rules outlined by USCIS.  It’s legal because Congress gave USCIS discretionary powers.  There is a downside to parole though.  You are at the complete mercy of USCIS.  Any violation or failure to satisfy the eligibility requirements upon renewal and you’re required to leave the U.S.

    As an entrepreneur paroled into the U.S., the “PE-1” designation indicates you’re a parolee, it is not immigration status.  Absent specific changes to immigration laws, once the parole period is exhausted, you won’t be able to “change” your status because technically, you were never admitted to the U.S. with status.  To acquire status, one would have to depart the U.S. and be formally admitted under a valid status type.

    This is USCIS’ roundabout way of acknowledging that foreign entrepreneurs can play a critical role in promoting job creation in the U.S., but realizing that it can’t change the laws on its own, not without Congress working together.

  • USCIS Proposal Overlooks Minorities and Women

    USCIS’ recent proposed rule to allow International Entrepreneurs to jump-start their start-up venture places a steep minimum capital funding of $345,000.  If the proposal is ultimately accepted and promulgated as a final rule (which we won’t know for a few months anyway), then any foreign entrepreneur wanting to start their venture would need to meet a minimum private financing amount of $345,000 or more.  The other alternative would be to procure financing of $100,000 from a government funding source.  Seems pretty straightforward right?

    When I first wrote about this development, I commented that this proposal was truly reserved for the 1% of entrepreneurs in the U.S.  While there are some nice soundbites, the proposal makes private capital funding a deciding factor, overlooking an important fact that women and minorities are at a greater disadvantage of accessing capital.  If you can’t access capital, you would have a difficult time qualifying for the International Entrepreneur Parole proposed by USCIS.

    According to the American Immigration Council, immigrant women entrepreneurship had increased more than 40% from 2000 to 2010.  Yet, immigrant women still face significant challenges in obtaining access to capital including gender bias and discrimination according to a 2011 report.

    Of the immigrant women interviewed, many faced gender bias and difficulties securing start-up capital.  Many women also reported that banks were hesitant to provide start-up funds due to the small size of their businesses.

    The U.S. Small Business Administration commissioned a follow-up report in 2013 arriving at similar results in finding that women and minority-owned businesses encountered far greater obstacles in securing capital.

    Studies indicate that women entrepreneurs have less access to financial capital or make less use of it than male entrepreneurs. … On the equity side, women typically have limited social interaction with venture capital firms, and are under-represented among fast-growth and high-tech businesses. They also rely more on informal funding methods and self-financing.

    On the other end of the spectrum are minority-owned businesses who are disproportionately impacted by lack of access to capital, according to a 2012 report by the Kaufman Foundation.

    MBEs [Minority-Business Enterprises] rely more heavily on financial institutions for loans than all other borrowing sources combined. However, when compared to white-owned firms, MBEs typically encounter higher borrowing costs, receive smaller loans and see their loan applications rejected more often. Black- and Latino-owned MBEs are the most likely to experience such negative results. Although lower owner net worth, credit ratings, firm age, size and other risk factors account for some of the differences in access to credit, studies consistently show that black- and Latino-owned firms with identical firm and owner traits (other than race) and credit histories gain less access to bank credit than matched white-owned firms.

    The Minority Business Development Agency, a division within the U.S. Department of Commerce issued similar results in an earlier report in 2010.

    A review of national and regional studies over several decades indicates that limited financial, human, and social capital as well as racial discrimination are primarily responsible for the disparities in minority business performance. Inadequate access to financial capital continues to be a particularly important constraint limiting the growth of minority-owned businesses. The latest nationally representative data on the financing of minority firms indicates large disparities in access to financial capital. Minority-owned businesses are found to pay higher interest rates on loans. They are also more likely to be denied credit, and are less likely to apply for loans because they fear their applications will be denied. Further, minority-owned firms are found to have less than half the average amount of recent equity investments and loans than non-minority firms even among firms with $500,000 or more in annual gross receipts, and also invest substantially less capital at startup and in the first few years of existence than non-minority firms.

    According to the National Minority Supplier Development Council, minority businesses contribute to over $400 billion in revenue in the U.S. , employing over 2.2 million people.  “The lack of access to capital also trickles down to bank loans and lines of credit.”

    Moreover, it’s unclear how this proposed rule aligns with President Obama’s objective to increase access to capital to greater entrepreneurs, including minorities and women.  While the proposal offers an additional, alternate criterion for “partially satisfying” some of the funding, this alternate criterion is so vague as to make it appear more like an afterthought.  Revising the alternate criterion by making it clearer, by enumerating what those factors might be, would go a long way towards transparency.

    In addition, I would also urge USCIS to propose a rule that would enable F-1 students who seek to start their own companies more time with their Optional Practical Training (OPT), irrespective of capital funding amounts, as a supplemental program, in order to encourage entrepreneurship in the U.S.

  • 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.