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U.S. Immigrations and Customs Enforcement (ICE) has recently encouraged more companies and entrepreneurs to participate in its IMAGE program in order to eliminate illegal workers and crack down on fake credentials.

IMAGE, ICE Mutual Agreement between Government and Employers, is an ICE program intended to be beneficial to both ICE and to companies. Essentially, in exchange for opening its books up for ICE to examine, companies will be rewarded with reduced fines and an enhanced image. It is a voluntary compliance program which will help curtail the employment of illegal workers.

While not all businesses may want to invite government agencies into their workplace, IMAGE may be a way for a company to self-report its issues that it has discovered in exchange for little to no punishment and a certification that they are compliant. For example, last year, Velie Law Firm assisted a client under investigation from ICE to utilize IMAGE, and it actually resulted in no fines and a cooperative relationship with ICE that translated into an extended period to address suspect employees. Today, the company is still in business and has developed a compliant workplace culture.

Partnering with ICE can lead to fewer future 1-9 audits, which in turn leads to less drops in productivity; if ICE finds an unauthorized employee during a regular 1-9 audit, productivity, especially for smaller companies where each employee is proportionally more important than in a larger company, may experience a sudden drop while the company scrambles to hire and train replacements. Additionally, partnering with ICE via the IMAGE program can allow a company to grow and promote itself via its “ICE certified” status.

Applying for IMAGE certainly seems to be a good option today, especially with harsher fines and ever increasing 1-9 audits for companies. In 2008, ICE performed 503 1-9 audits; in 2011, that number has risen to nearly 2500 — five times as many. With a higher risk of a normal 1-9 audit, the potential gains of fewer and less extreme fines that come with IMAGE membership looks to be more and more beneficial.

Requirements for IMAGE were simplified earlier this year, after an aggressive push by ICE to implement this program with more businesses and companies around the country. To enroll in the program, companies must do the following: register for the federal E-Verify program; agree for ICE to audit their I-9 forms and other documents; set up an employment verification policy with annual internal audits; and agree to partner with ICE.

U.S. Citizenship and Immigration Services announced that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2011.  USCIS is notifying the public that Jan. 26, 2011, is the final receipt date for new H-1B specialty occupation petitions requesting an employment start date in FY2011.

The final receipt date is the date on which USCIS determines that it has received enough cap-subject petitions to reach the limit of 65,000

USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on Jan. 26, 2011. USCIS will use this process to select petitions needed to meet the cap.  USCIS will reject all remaining cap-subject petitions not randomly selected and will return the accompanying fee.

On Dec. 22, 2010, USCIS had also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the ‘advanced degree’ exemption.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap.  Pursuant to the Immigration and Nationality Act, petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted towards the congressionally-mandated FY2011 H-1B cap. 

Accordingly, USCIS will continue to accept and process petitions filed to:

• extend the amount of time a current H-1B worker may remain in the U.S.;
• change the terms of employment for current H-1B workers;
• allow current H-1B workers to change employers; and
• allow current H-1B workers to work concurrently in a second H-1B position.
• allow H-1b visas for employees of higher education or companies affiliated with higher education.

The first date an H-1b can be filed for the 2012 fiscal year which begins October 1, 2011, is April 1, 2011.

Other options for those with college degrees in professional jobs are as follows:

TN Visa for Canadian and Mexican professionals in more than 30 occupations.

E-3 professional visa for Australians

H-1b for Chile and Singapore citizens

L-1 A management and executive level transferees for companies with affiliated or subsidiary branches in US and at least one other nation.

L-1B specialized employee transfers for companies with affiliated or subsidiary branches in US and at least one other nation.

O-1 Extraordinary Ability employees in business, arts, athletics, science and education,

H-3 Training visa for up to 2 years

J-1 Training or Intern visa. Up to 18 months. Some are subject to 2 year home residency requirement for certain countries and certain professions.

E-2 Treaty Investor visa. Permits investor and essential employees from countries with treaties with United States to establish companies in US.

E-1 Treaty Trader visa. Permits establishment of trading companies with treaties with US.

Despite a recessed economy, US companies that require hiring from a global talent pool to compete have been hamstringed by an arbitrary numerical cap for professional workers. Until Congress passes legislation that increases the H-1B quota to meet the realities of our global economy, U.S. employers must seek other alternatives. The strategies discussed are only a few of many options available to employers. Now more than ever, it is critical for employers to start planning early with their immigration counsel to explore options specific to their needs and to ensure that the H-1B cap does not hinder their hiring goals and ability to supplement their workforce with professional foreign workers.

Feel free to contact me if you would like to explore your options.

Happy Martin Luther King Day America. I hope you are enjoying your day off. I also hope you take a moment to think about why we have a day named after Dr. King, the only American who was not a president honored with a holiday.

Dr. King consistently sacrificed his freedom and ultimately his life for his “dream that one day this nation will rise up and live out the true meaning of it’s creed: ‘We hold these truths self-evident that all men are created equal.’”

Dr. King said, his dream is deeply rooted in the American Dream.

On this day we should remember that the tenets our great country is founded on are freedom and equality. I am extremely proud that unlike other nations that are based upon shared race, language or culture we are something more, something better. Americans are Americans based upon a shared philosophy.

Dr. King reminded us with his words, and moreover his assassination, that we are better as a whole than the individuals among us who would kill a man for standing up for his and an oppressed peoples’ rights.

Although Dr. King would have surely beamed with pride seeing the election of an African-American president, the end to legalized segregation and the rise of the black middle and upper class, what would he think or do about the hate bases laws that target and diminish the equality of our Hispanic US citizens.

Much has been written on Arizona’s immigration law directing officials to inquire into the legality of those that appeared to been Hispanic. Now Mississippi, ground zero for the civil rights battles culminating in the early sixties is engaged in a heated debate to pass Arizona style immigration legislation. The proponents of these bills also support amending the US Constitution to remove birthright citizenship.

Why? Is your American dream to remove it from others?

So while Dr. King’s dream may have come true for some Americans, we should give thanks and appreciation for these victories.  We should remember the fight for equality for all never ends.  Dr. King, even during Mississippi’s infamous stance against equality, had hope with the words, “I have a dream that one day even the state of Mississippi, a state sweltering with the heat of injustice, sweltering with the heat of oppression, will be transformed into an oasis of freedom and justice.

Dr. King “dreamed that we could together hew a stone of hope out of a mountain of despair and transform the jangling of our nation into a beautiful symphony of brotherhood… This will be the day when all God’s children will be able to sing with new meaning, ‘My country tis of thee, sweet land of liberty, of thee I sing, land where my fathers died, land of pilgrim’s pride, from every mountainside, let freedom ring. And if America is to be a great nation this must become true.”

So take a second America on this day to honor the person who made us remember that the American Dream is not for the few but for us all, and think about how his words and actions apply today.

The test of a great nation and a great person is how they handle the hard times. While we are trying to dig out of a recession and still come to grips with 911, remember our ethnic citizens are not to blame. They just want what we all want, to live, work and reside in the greatest nation on earth.  It doesn’t help any of us to remove the word greatest.  We are better than this.

Jing Zhou and Jenny Bai are personifications of the future. Jing is what they call in China, a seagull, a Chinese person who leaves works or studies abroad and moves back and forth between China and the West.  Jenny is a classic example of the Chinese diaspora, well educated and industrious. She was lured back to China by economic prosperity and opportunities.

Jing is an O-1 visa holder based upon her extraordinary ability in journalism. She came to the US four years ago to write for Business Week in Chicago and New York. Today she moves between the US and China operating technology and service companies in both nations.

Jenny left China when she was four years old; she is now an American citizen, who works seamlessly between the West and China. She assisted an Irish company create a presence in China and helped a Chinese magazine to better serve the English speaking population in Beijing.

Jenny and Jing have developed a service, the I Circuit, that takes US industry leaders, such as Silicon Valley venture guru Dave McClure of PayPal and Facebook fame( now with 500 startups) and Larry Namer, founder of E! Entertainment on a circuit to speak and meet with Chinese government and business leaders.  I was honored to join this powerhouse group on this amazing speaking circuit.

Jing and Jenny produced an impressive conference in November, the Girl 2.0 Expo in Shanghai at the amazing Himalayas Center. The Himalayas Center is an incredible hotel and conference facility that is slated to open later this year. It will host the Shanghai International Film Festival and it is truly beautiful. The Center utilized Cao Shi Chao, the premier Chinese Cultural strategist, to infuse the most authentic Chinese influence into the design and architecture of the Himalayas Center. The result is sublime. The lower exterior of the building design incorporates a metal façade that looks like Chinese language characters.  Inside, a massive piece from the Ming Dynasty sits beneath the largest LED screen in Shanghai that rotates incredible pictures of Chinese landscapes. The room is encircled with an ancient Chinese philosophical tale containing each Chinese character painted in the style of China’s first calligrapher.  The hotel only uses native Chinese materials and possesses a real sense of serenity, encompassing the truest sense of the word feng shui. It is an interesting endeavor because this hotel is the first built in Shanghai to serve Chinese patrons instead of westerners. It has exquisite amenities usually found in casinos, but with Shanghai’s 37 Million population base, it can operate successfully without relying on gaming revenues. This is a real indicator of China’s new individual wealth.

The Conference was first rate, with incredible speakers and a great number of attendees. I was honored to speak on US immigration laws and how Chinese companies can establish US entities or how Chinese investors can utilize immigration laws to create cash flow and jobs in the US. But I also realized our lessons from the technology boom, bust and survival were useful to China during its current boom and foray into technology. On our amazing 10 day circuit, I met with a number of government and business leaders interested in learning about these lessons.

The circuit which took us from Shanghai to Nanjing, Beijing and Ningbo was an amazing look at a country in a time of massive change and economic prosperity. Jing and Jenny were amazing hosts and we met some incredible people.

We had a great time in Nanjing, an amazing city that was the capital of China for seven dynasties, until Chiang Kai-Shek left for Taiwan. Today it is a hub for higher education and boasts a staggering 31 universities.

Many Chinese take American first names. One of my favorite people from Nanjing is Xu Hao. He took the American name Hulk after the movie character. Hulk had not met a lot of westerners and was really happy that we understood his name. We introduced Hulk, and maybe China, to the pound as a cool way to greet friends.

Xu Hoa is typical of the new Chinese business leader, young at 34, he was a banker who now operates nine companies with an interest in an additional 15. These include investment companies, an animation studio, a car dealership and an insurance company.  We discussed taking his company international and establishing a US operation under the L-1 visa or investing in a job creation company under the EB-5 immigrant investor visa.

China loves to mix business and social gatherings together. A moment that I will never forget was sitting in the hot springs in Nanjing while little fish nibbled on my ankles discussing the teaming of US knowledge and Chinese investment into Chinese and American technologies companies with Dave McClure, Jing Zhou and Hulk.

In Beijing we met Jia “Jeff” Feng, owner of the Beijing Timber Company. Jeff was one of the only fluent English speakers we met and he was both impressive and humble. He desires to establish a US presence to develop an herbal product that he believes if successful in the United States will provide more credibility when marketing in China. He has already assembled a team of top experts in the United States to develop the product. Like many Chinese, Jeff is interested in having his daughter attend an American university. He could use the F-1 visa for his child or obtain an L-1 visa and ultimately an EB-1 Green card as a multinational executive. The latter would permit his child to obtain permanent residency as well, making admission into a US university easier, less expensive and set her up to be able to start a career in America upon graduation if desired.

In Ningbo, we toured the China Fur Market, owned by Hong Boen. Mr. Hong is anincredible success story. A tailor with a storefront shop five years ago, now his operation makes a Billion US dollars a year and produces elegant products for the finest furriers in the world. Many world-wide companies have outlets at his complex, which has retail stores on the bottom floor and production upstairs.

Mr. Hong desires to establish a presence in the US under the L-1 and transfer executives and managers to the US to operate it.  We have teamed with Jing and

Jenny’s group to and assist Mr. Hong in establishing his US subsidiary, creating a business plan with market analysis and feasibility study, acquiring a facility, staffing it and obtaining visas for Chinese management level employees. In short, provide the knowledge of how to do business in the United States.

The constant during the circuit were the dinner and lunch meetings. Great circular tables comprised of interesting food and surrounded by government and business leaders.  These dinners were the highlight of the day, an incredible custom and great way to do business. But the test is whether you can handle your baijiu, the alcohol they call Chinese tequila or white lighting.

One of the great ways to break the ice or communicate when you don’t know the language is to share a drink through a toast. I learned the word ganbei, which means down your drink. Thanks to a long rugby career that included many socials, and armed with my rugby mate and Business Development Director, Jeff Le Crone we took to baijiu like fish to water.  Jeff who is the life of most parties, is a big fella, and one night in Nanjing, a wave of Chinese celebrants toasted him 15 times, they even sent the ladies at him. He handled it so well he brought the house down with an incredible rendition of the “African Love Song,” which culminates with a top of the lungs verse that was repeated by about 30 Chinese dinner guests. A star was born.

We learned the baijiu game and had a glorious moment on our last dinner in Ningbo celebrating a great meeting with Mr. Hong. The party included Ningbo’s top officials to sort of give our endeavor its blessing. The mayor sat to my right at the head of the table. Two seats over was the Inspector. He started coming at us with baijiu and we defended by counter attacking Jeff then me, then Jenny until he gave up and drank tea. We ended up in a Karaoke bar where the Inspector fell asleep on a couch. In a gesture of international hospitality and good sportsmanship, we picked him up and carried him to a taxi. We got back to the hotel with about enough time to pack and head back for the long flight home.

Thank you Jing and Jenny for a trip over the bridge of the cross border ecosystem and a cruise down the fast lane of the Baijiu Circuit. It was definitely wonderful to experience China in the midst of its economic enlightenment.