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H-1B Tips for Employers


Getting selected in the H-1B lottery does not necessarily mean a petition will be approved. USCIS issued 45% more requests for additional evidence on H-1B petitions in 2017 than the previous year. There was also a higher percentage of denials, longer processing times, and tougher standards on filing requirements. We foresee even more scrutiny of H-1B petitions this year, as well as longer processing times.

We recommend the following potential ways for employers to maximize their H-1B chances:

  •     Apply based on a master’s degree from a U.S. nonprofit university as long as all degree requirements are completed before April 1
  •     Ensure close match between course of study and job duties
  •     Apply concurrently for optional practical training (OPT) or STEM OPT and H-1B
  •     Apply for “consular notification,” not change of status, to preserve OPT if OPT lasts beyond October 1
  •     Apply for “change of status” if OPT expires before October 1 to preserve work eligibility under “cap gap” policy, but avoid travel
  •     Choose O*NET code and wage level carefully
  •     If more than one field of study could qualify a person for the position, explain task by task how the position requires the education
  •     Be careful of Level 1 wages. Instead, obtain an acceptable prevailing wage from a legitimate source other than the Labor Department, offer to pay a higher wage from the outset, or explain why this particular job is both entry level and qualifies as a “specialty occupation”
  •     Consider other visa options if your employees is not selected in the H-1B lottery
  •     Check USCIS website for changes to form, fee, filing location
On April 2, employers can start filing H-1B temporary visa petitions for foreign professionals for work starting October 1, 2018. The law limits new H-1B visa numbers to 85,000 a year. Because many more employers than that are likely to file petitions, U.S. Citizenship and Immigration Services (USCIS) will receive applications for one week and then conduct a lottery to determine which applications will actually be processed. Applications that receive a receipt will then be adjudicated for approval or denial.

Extreme vetting: State Department to demand tourists’ social media history

The State Department will publish new rules this week to require most visitors and immigrants to the U.S. to divulge their recent social media histories, carrying out one of the key security enhancements from President Trump’s extreme vetting executive order. Travelers would also be asked to list phone numbers, email addresses and international travel during the previous five years, and to detail any immigration problems they have had, whether with the U.S. or elsewhere. They also will be asked about potential family connections to terrorism.

The Homeland Security Department had floated plans to track social media of immigrant applicants, but the State Department’s proposal would apply to tourists and others coming on temporary visas. Some 14 million people would be affected by the request for information tied to visitors’ visas, and about 700,000 others would be affected in the immigration system, the department said in the documents.

Don Crocetti, a former senior fraud investigator for U.S. Citizenship and Immigration Services, said it makes sense to collect the information but that officers need to stay within privacy rules too. He said in the immigration context, looking at social media can help an adjudicator assess whether the story the applicant is telling in applying for a benefit rings true — such as in the case of a marriage petition. But Mr. Crocetti said someone’s refusal to turn over the passwords or other nonpublic social media information can’t be used on its own to deny approval.

“The use of social media is a wrench in their toolbox. It’s not that you use that same wrench for everything you do, but it’s a wrench, it’s a different-sized tool, and you have use that selectively,” he said. The State Department said it already collects limited information about travel history and family relations. The new information will go beyond that to include prior passport numbers, information about family members and a longer history of travel, employment and contact information.

“Collecting this additional information from visa applicants will strengthen our process for vetting these applicants and confirming their identity,” the department said. Ms. Vaughan said she wished the State Department had also requested information on the visitor application about whether female travelers are intending to enter the U.S. for the purpose of having a child. She said that could cut down on “birth tourism,” in which women in the late stages of pregnancy visit the U.S. in order to give birth on American soil, securing citizenship for the child.

Hawaii judge loosens travel ban to allow grandparents, and other relatives

A federal judge in Hawaii ordered a loosening of President Donald Trump's travel ban late Thursday, ruling that the Trump administration's interpretation of the recent U.S. Supreme Court ruling is too narrow. Judge Derrick K. Watson said grandparents and other close relatives -- such as in-laws, aunts and uncles -- traveling from the six affected countries, all of them predominantly Muslim, are exempt from the ban, for now. Last month, the Supreme Court reinstated most of the travel ban, allowing only those with "bona fide" family ties to enter the U.S. By the administration's interpretation of that, only travelers with a parent, spouse, child, adult son or daughter, son- or daughter-in-law or sibling in the U.S would be admitted.

L-1 - check if you qualify

To qualify for L-1 classification in this category, the employer must:

  • Have a qualifying relationship with a foreign company (parent company, branch, subsidiary, or affiliate, collectively referred to as qualifying organizations); and
  • Currently be, or will be, doing business as an employer in the United States and in at least one other country directly or through a qualifying organization for the duration of the beneficiary’s stay in the United States as an L-1.  While the business must be viable, there is no requirement that it be engaged in international trade. 

Doing business means the regular, systematic, and continuous provision of goods and/or services by a qualifying organization and does not include the mere presence of an agent or office of the qualifying organization in the United States and abroad.

To qualify, the employee must also:

  • Generally have been working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States; and
  • Be seeking to enter the United States to provide service in an executive or managerial capacity for a branch of the same employer or one of its qualifying organizations.

Executive capacity generally refers to the employee’s ability to make decisions of wide latitude without much oversight. 

Managerial capacity generally refers to the ability of the employee to supervise and control the work of professional employees and to manage the organization, or a department, subdivision, function, or component of the organization.  It may also refer to the employee’s ability to manage an essential function of the organization at a high level, without direct supervision of others.  

For foreign employers seeking to send an employee to the United States as an executive or manager to establish a new office, the employer must also show that:

  • The employer has secured sufficient physical premises to house the new office;
  • The employee has been employed as an executive or manager for one continuous year in the three years preceding the filing of the petition; and
  • The intended U.S. office will support an executive or managerial position within one year of the approval of the petition.

Period of Stay

Qualified employees entering the United States to establish a new office will be allowed a maximum initial stay of one year.  All other qualified employees will be allowed a maximum initial stay of three years.  For all L-1A employees, requests for extension of stay may be granted in increments of up to an additional two years, until the employee has reached the maximum limit of seven years.

Family of L-1 Workers

The transferring employee may be accompanied or followed by his or her spouse and unmarried children who are under 21 years of age.  Such family members may seek admission in L-2 nonimmigrant classification and, if approved, generally will be granted the same period of stay as the employee. 


    Tim Cook told Trump tech employees are 'nervous' about immigration

    Behind the scenes at the White House tech CEO meeting, Apple CEO Tim Cook told President Donald Trump that technology employees are "nervous" about the administration's approach to immigration, according to a source familiar with the exchange.

    The source said the president told the CEOs on Monday that the Senate's health-care bill needs "more heart." That would be a second known instance of the president criticizing the GOP plan in private meetings.

    To that, the source said, Cook replied that the immigration approach by the administration also "needs more heart."Cook cited the Deferred Action for Childhood Arrivals program, which is under review by the Trump administration. He also said people in tech and their co-workers were nervous about their status, and added that it "would be great" if the president could "send them a signal."

    According to the source, Trump replied that he wants to see comprehensive immigration reform and urged the CEOs to call their senators and congressmen to push for it.

    The source spoke on condition of anonymity because of the sensitivity of discussing private conversations.

    A healthcare bill with "heart" is something that the president "clearly wants," as "he believes that health care is something near and dear to so many families and individuals," press secretary Sean Spicer said in a Tuesday press briefing.

    #immigration #immigrationlawyer #immigrationattorney #attorneylosangeles #attorneycalifornia

    Determining the True Status of Independent Contractors

    So, sharing economy or not, how does one go about analyzing the status of a worker or group of workers?  Who does it, and what are the standards? 

    California rules:

    ·         Whether the one performing services is engaged in a distinct occupation or business;

    ·         The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision;

    ·         The skill required in the particular occupation;

    ·         Whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work;

    ·         The length of time for which the services are to be performed;

    ·         The method of payment, whether by the time or by the job;

    ·         whether or not the work is a part of the regular business of the principal; and

    ·         Whether or not the parties believe they are creating the relationship of employer-employee.

    IRS standard:

    1.    Instructions. The more instructions that are given, the more likely is employee status.

    2.    Training. The more training, the more likely is employee status.

    3.    Integration. The more closely integrated the work is with the employer’s business, the more likely is employee status.

    4.    Services rendered personally. If the worker must personally do the work, employee status is likely.

    5.    Hiring, supervising, and paying assistants. A person who does these things will often be an independent contractor.

    6.    Continuing relationship. The longer the arrangement’s term, the more likely is employment status.

    7.    Set hours of work. Set hours indicate employment status.

    8.    Full-time required. Working full-time indicates employment status.

    9.    Doing work on employer’s premises. Working on the employer’s premise may suggest employment status.

    10.  Order or sequence set. Performing services in a particular order or sequence set suggests employment status.

    11.  Oral or written reports. Reports to an employer tend to suggest employment status.

    12.  Payment by hour, week, or month. Payment by the hour, week, or month suggests employment status.

    13.  Payment of business and traveling expenses. Payment of business and traveling expenses suggests employment status.

    14.  Furnishing of tools and materials. Furnishing significant tools, materials, and other equipment suggests employment status.

    15.  Significant investment. A worker’s significant investment tends to indicate independent contractor status.

    16.  Realization of profit or loss. A worker’s potential to realize a profit or suffer a loss suggests independent contractor status.

    17.  Working for more than one firm at a time. Working for more than one firm at the same time suggests independent contractor status.

    18.  Making service available to the general public. Making services available to the general public on a regular and consistent basis suggests independent contractor status.

    19.  Right to discharge. The right to discharge a worker suggests employment status.

    20.  Right to terminate. A worker’s right to terminate the relationship without incurring a liability suggests employment status.




    DACA is extended. “Dreamers” will stay. For now.

    President Trump will not immediately eliminate protections for the so-called Dreamers, undocumented immigrants who came to the United States as small children, according to new memorandums issued by the administration Thursday night. But White House officials said Friday morning that Mr. Trump had not made a decision about the long-term fate of the program and might yet follow through on a campaign pledge to take away work permits from the immigrants or deport them.


    The Department of Homeland Security announced that it would continue the Obama-era program intended to protect those immigrants from deportation and provide them work permits so they can find legal employment. A fact sheet posted on the department’s website says immigrants enrolled in the 2012 program, known as Deferred Action for Childhood Arrivals, “will continue to be eligible” to renew every two years and notes that “no work permits will be terminated prior to their current expiration dates.”


    A news release from the department said flatly that “the June 15, 2012, memorandum that created the Deferred Action for Childhood Arrivals (DACA) program will remain in effect.”

    But officials at the White House and the Department of Homeland Security said Friday morning that those statements were intended only to clarify that immigrants enrolled in the DACA program would not immediately be affected by a separate action officially ending a similar program for the illegal immigrants who have children who are citizens or legal permanent residents. “There has been no final determination made about the DACA program, which the president has stressed needs to be handled with compassion and with heart,” said Jonathan Hoffman, the assistant secretary for public affairs at the department. He added that John F. Kelly, the secretary of Homeland Security, “has noted that Congress is the only entity that can provide a long-term solution to this issue.”


    Immigration rights activists, initially hailed the announcement, calling it a surprising turn of events from Mr. Trump. But after the White House clarified its intent, activists expressed regret.

    Asked repeatedly about his intentions for the program since he took office, the president has hinted that he would not try to deport the Dreamers. But immigration activists had remained worried that the administration might still eliminate the program.


    The announcement that the DACA program will continue for the time being, came as the administration formally ended Mr. Obama’s attempt to expand it to also cover the parents of the Dreamers.

    Federal Appeals Court Upholds Google Trademark

    Federal Appeals Court Upholds Google Trademark

    A federal appeals court has rejected a lawsuit that aimed to cancel Google's trademark by arguing that "google" is now synonymous with searching the internet.

    The 9th U.S. Circuit Court of Appeals said Tuesday it was not enough to show that people use the verb "google" generically to refer to searching the web. The lawsuit had to show that people understood "google" to mean internet search engines generally, and not just Google's search engine.

    A three-judge panel of the 9th Circuit said the lawsuit did not present enough evidence to support such a claim.

    Richard Wirtz, an attorney for two men who filed the lawsuit, said the ruling further expands the wide monopoly already granted to trademark owners.

    California is aiming to quash the growth of immigration detention in the state

    The state's $125 billion budget -- which is set to be approved Thursday -- has a related measure to prevent local governments from signing contracts with federal authorities for immigration detention facilities or expanding existing contracts.

    It would also have the state attorney general review conditions at immigration detention facilities in California.

    "I think we send a very clear message in this budget that California is going in the opposite direction of Trump's administration," said Sen. Ricardo Lara, a Democrat from Bell Gardens.

    The budget was negotiated by Gov. Jerry Brown and Democratic legislative leaders.

    Immigration and Customs Enforcement declined to comment on pending legislation.

    The proposal is the latest in a series of moves by California lawmakers aimed at protecting immigrants in the country illegally from President Donald Trump's efforts to ramp up immigration enforcement.

    State lawmakers are also weighing proposals to provide lawyers to immigrants in deportation proceedings and limit communication between local police and federal immigration agents.

    There are currently nine immigration detention facilities in California. All but one of them -- the Otay Mesa Detention Center near the U.S.-Mexico border -- contract through local government agencies.

    ‘Major Lawsuit’ Against Trump Promised by D.C., Maryland Officials

    The attorneys general of Maryland and Washington, D.C., plan to file a "major lawsuit" against President Donald Trump as early as Monday, they said Sunday night.

    Maryland Attorney General Brian Frosh and his D.C. counterpart, Karl Racine, didn't disclose the focus of the litigation, which they said in a statement they would formally announce Monday afternoon.

    President Donald Trump signs executive orders at the Pentagon on Jan. 27. Olivier Douliery / EPA File

    The Washington Post reported that the lawsuit would allege that Trump has violated constitutional anti-corruption restrictions by accepting payments and benefits from foreign governments since he became president.

    No further details were immediately available.

    The lawsuit would be the first related to Trump's business interests brought by government entities. Citizens for Responsibility and Ethics in Washington, a nonprofit activist group, has separately sued Trump in U.S. District Court in Manhattan alleging "countless conflicts of interest" in violation of the Constitution's so-called emoluments clause.

    In January, Trump promised to track and donate all profits from foreign government travel and commerce at his companies to the U.S. Treasury. But NBC News and MSNBC reported last month that the Trump Organization hasn't been tracking all possible payments it receives from foreign governments.

    Company policy detailed in a new pamphlet suggests that it is up to foreign governments, not Trump's hotels, to determine whether foreign governments self-report their business dealings.

    "To attempt to individually track and distinctly attribute certain business-related costs as specifically identifiable to a particular customer group is not practical," the pamphlet states

    Gender-Based Citizenship Rules Unconstitutional, Supreme Court Says

    Gender-Based Citizenship Rules Unconstitutional, Supreme Court Says

    The U.S. Supreme Court decided that federal citizenship rules violate the Constitution by making it harder for some foreign-born children of American men to become citizens than children born abroad to American women.

    The court, however, said it wouldn’t confer citizenship on the man who challenged the policy. The justices instead made it harder for the future offspring of American women to become citizens.

    The decision came in the case of Luis Ramon Morales-Santana, a man born in the Dominican Republic who is facing deportation after being convicted of a 1995 robbery and attempted murder in New York.

    Under federal law, a child born abroad to an unmarried American mother and non-American father could claim U.S. citizenship if the mother lived continuously in the U.S. for a year at some point before the birth. If the father is American and the mother isn’t, the residency requirements are more stringent, currently requiring the father to have spent five years in the U.S.

    The Supreme Court Monday said the distinction amounted to discrimination on the basis of gender, violating the Constitution’s equal protection clause. Writing for six of the eight participating justices, Justice Ruth Bader Ginsburg said the differing requirements were "stunningly anachronistic."

    Ginsburg, however, rejected the appeals court’s decision to let Morales-Santana, born in 1962 to a Dominican mother and a American father, invoke the more lenient rules.

    She said federal law indicated Congress would have preferred to fix the discrepancy by instead applying the longer residency period to the children of American mothers.

    "Going forward, Congress may address the issue and settle on a uniform prescription that neither favors nor disadvantages any person on the basis of gender," Ginsburg wrote. In the meantime, the five-year requirement "should apply, prospectively, to children born to unwed U.S.-citizen mothers."

    Justices Clarence Thomas and Samuel Alito said they wouldn’t have decided the equal protection issue and would have simply said Morales-Santana couldn’t claim citizenship. Justice Neil Gorsuch didn’t participate in the case, which was argued before he joined the court.


    Startup Visa For International Entrepreneurs

    Starting July 17, 2017, the International Entrepreneur Parole will enable start-up business-owners and entrepreneurs to begin to establish and grow their business in the U.S. while bypassing the normal non-immigrant visa process. The aim is that these entrepreneur parolees will be engaged in activities that will help to grow the U.S. economy and create jobs.

    USCIS will issue "parole" to qualifying foreign entrepreneurs "who demonstrate that their stay in the United States would provide a significant public benefit through the potential for rapid business growth and job creation."

    USCIS expects to grant parole to close to 3,000 foreign entrepreneurs each year, with entrepreneur getting up to 30 months of authorized stay with the possibility of a 30-month extension of stay if they can show that the start-up business has shown specific signs of significant growth.

    Under the rule, USCIS could grant 3 entrepreneur paroles for each start-up business or entity. Their spouses and children could accompany them to the U.S. and the spouses would be eligible to apply for employment authorization in the U.S.

    To be eligible for the Entrepreneur Parole, the applicant must prove that he or she:

    1. Has a substantial ownership interest (at least 10%) in a start-up business incorporated in the U.S. within the past 5 years, which has a "substantial potential for rapid growth and job creation";
    2. Has a "central and active role" within the start-up business so that he or she will be able to assist with the "growth and success" of the start-up business;
    3. Will provide a "significant public benefit" to the U.S. through their role as an entrepreneur by:
      • Showing that the start-up business has "received a significant investment of capital from certain qualified U.S. investors with established records of successful investments" (investment should be at least $250,000);
      • Showing that the start-up business has received federal, state or local grants, which are designed for start-up businesses, for "economic development, research and development, or job creation" (grant or grants should total at least $100,000); OR
      • Showing that the start-up business entity qualifies partially under either or both of the previous provisions along with "additional reliable and compelling evidence of the start-up entity's substantial potential for rapid growth and job creation".

    It is important to remember that unlike a non-immigrant visa, those who enter the U.S. as parolees will not be able to file for adjustment of status or a change of status.