THE BLOCKING OF AN ENTREPRENEUR: A BROKEN IMMIGRATION SYSTEM AT WORK

By Cyrus D. Mehta

3D printing technology is about to revolutionize the way we understand manufacturing, and the country that takes the lead in this new technology will be the winner ofwhat The Economist magazine has called the third industrial revolution. A state of the art hearing aid or a high tech component for a military jet can be designed through a computer and printed on an unattended 3D printer as a solid functioning object.

Yet, the US Customs and Border Protection on the Canadian border recently refused admission to a dual national Canadian/British entrepreneur JF Brandon who is part of a startup called D Shape – which has developed a large-scale 3D printer that will revolutionize the way architectural design is planned, and building constructions are executed. By simply pressing the “enter” key on the keypad D Shape gives the architect the possibility to make buildings directly, without intermediaries who can add interpretation and realization mistakes.

Although refused entry into the United States, Mr. Brandon participated in a panel discussion on February 13, 2012 at Brooklyn Law School in New York entitled Immigration Policy and Entrepreneurship: Challenges and Pathways for Startups. Thanks to technology that has now become so routine, he could participate through Skype from overseas, and told a riveted audience that he had been refused entry under a NAFTA TN visa to work for D Shape in New York, which is limited to certain occupational categories and applies to Canadian and Mexican citizens. For an individual who wishes to work in a business related field, the only TN occupational classification is “Management Consultant,” but the CBP official did not think Mr. Brandon would fall under this category as he would be more of a “Manager,” which is not a TN classification. Although he will try again for a TN visa, the H-1B visa category is more obvious,  which allows one to work in many more professional fields, but there are no H-1B visa numbers left for this fiscal year. If he applies for one, he will have to wait until October 1, 2013 to get in, and that too if he is lucky enough to get selected in the event that the USCIS receives more than the allotted 65,000 H-1B visas during the first week April 2013 – the first month when employers can file H-1B visas for an effective start date of October 1, 2013.  Other than the H-1B visa, there are few options for enterprising foreign entrepreneurs. The O-1 visa is limited to foreign nationals who can demonstrate extraordinary ability in their fields through sustained national or international acclaim. The L-1 visa is available to intra-company executives, managers or specialized knowledge employees who have been working for an affiliated overseas company for one year in the same capacities. The E-2 visa, applies to nationals of a few countries that have as treaty with the US (and Canada is one of them), but it requires the entrepreneur to make a substantial investment.

I was honored to be on the distinguished panel last week, along with Jeremy Robbins who is Director of the Partnership for a New American Economy and Special Advisor to Mayor Bloomberg, Michael Wildes, Partner of Wildes and Weinberg PC and Owen Davis, Venture Capitalist, Director of NYC Seed.  The moderator was Professor Jonathan Askin, who is the Director of the innovative Brooklyn Law Incubator Policy Clinic, which also sponsored the program along with New York Legal Hackers. Apart from the wonderful ambience and engaging audience –and there was jazz at the beginning and end of the program - the panelists generallypainted a grim picture of the visa options available to foreign entrepreneurs who wish to develop startups in the US. Indeed, Mr. Davis said that NYC Seed would be reluctant to fund foreign national entrepreneurs due to the inherent risks and uncertainties caused by the immigration system. Mr. Wildes described the many immigration options that exist in the US immigration system, but then qualified that it would be very difficult for an entrepreneur to take advantage of them. Under the H-1B visa program, for example, the USCIS insists on the need to show that the H-1B worker’s employment will be controlled by the employer, which will be difficult in the case of startup owned by the foreign national. This obstacle is in addition to the fact that H-1B visa numbers run out even before the start of the fiscal year. Even the E-2 visa is limited to nationals of treaty countries, according to Wildes, which does not include any of the dynamic BRIC (Brazil, Russia, India and China) countries.  I pointed out that there may be new hope, even amidst the bureaucratic “culture of no” mindset, in the USCIS’s new Entrepreneurs in Residence Initiative, where immigration officers have been trained to recognize the unique nature of startups, such as operating in stealth mode or not having an established office space. Control of employment may also be shown in other ways, through the need to maintain a separate existence between the corporation and the shareholder, as well as the possibility of minority shareholders exercising control through shareholding agreements or through their latent power to seek dissolution based on egregious conduct by the majority shareholders.  Mr. Robbins highlighted the political realities, which means that a new Startup Visa will only be enacted be when Congress rolls out a Comprehensive Immigration Reform bill.  Despite the importance of foreign entrepreneurs, and the fact that America knows best how to nurture entrepreneurship, there is little chance of a Startup Visa Act in the absence of Comprehensive Immigration Reform.

The take away from this program is that we clearly need Congress to create a Startup Visa rather than entrepreneurs using existing visas that were not designed for them, but those legislative proposals will flounder unless they are included in a Comprehensive Immigration Reform (CIR) bill.  One version of a Startup Visa would require the entrepreneur to invest a minimum of $100,000 in order to get a two year green card. To keep the green card past two years, the founder would need to create five jobs and either raise at least $500,000 in additional funding or $500,000 in revenues. Even if Congress enacted a Startup Visa, these requirements could be rather burdensome for a nimble entrepreneur who could still launch a successful business without an initial $100,000 investment. Thus, a CIR proposal can also tweak some of the existing visa categories to make it easier for founders to remain in the US as nonimmigrants and provide alternative pathways, such as by relaxing the element of control in the H-1B visa and also allowing a majority shareholder to be sponsored for a green card through the labor certification program. The well-intended guidance for entrepreneurs under existing visa categories should also be part of reform legislation rather than remain as mere guidelines that run the risk of not being followed by an immigration officer.  Otherwise, we will have initiatives like Blueseed, which envisages a ship in international waters off Silicon Valley that will serve as an incubator for foreign entrepreneurs to develop their startups without needing to get a US visa. They can visit shore briefly on a B-1 business visa for meetings, and then return to the ship to work at their startup. To add to the uniqueness of the entrepreneur and immigration program in Brooklyn, the founder of Blueseed, Dario Mutabdzija, also participated through Skype. I have a feeling that Blueseed will succeed even if we have CIR as there will always be entrepreneurs who may not be able to take advantage of onerous visa options in the early stages of the startup. 

Finally, from my experience as a practitioner, I have seen that immigrants from all backgrounds can become entrepreneurs, and it is not necessary that only graduates from STEM (Science, Technology, Engineering and Math) programs will succeed with startups. A lesser educated immigrant with burning ambition, such as a cook, can one day start a restaurant chain just as a Ph.D in Engineering can develop the next generation 3D printer.  Both create more jobs – and America could also enjoy more cultural diversity through the businesses of foreign entrepreneurs.As I recently tweeted on Twitter, “We need both brilliant STEM and delectable tandoori chicken in America.” Thus, if the political reality is to include startup visa options in CIR, let’s bring it on sooner than later so that American will be able to benefit from the talents of foreign entrepreneurs of all backgrounds and stripes.

A HOUSE OF MANY ROOMS: THE DIFFERENT PATHS TO CITIZENSHIP

By Gary Endelman and Cyrus D. Mehta

It is so refreshingly wonderful to think that what was once unthinkable could become a possibility – a bill to comprehensively reform our broken immigration system. Even  the House Judiciary Committee held a hearing last Tuesday, where there was a willingness to  legalize the 10+ million undocumented population, when in the past the tunnel vision mindset of the GOP controlled House was to find ways to either deport them or make it hard for them to remain in the US. 

The fault line of contention in the debate is whether to grant a pathway to citizenship or not for those who will be able to legalize their status. Many House GOP leaders have stated that they would rather find a middle ground between deporting the undocumented people and providing them with citizenship, which is obviously being opposed by advocates for immigration reform.  Even the Obama White House is opposed to this. For instance, Raul Labrador, a rising GOP leader from Idaho in the House has said that he would vote for providing legal status to the undocumented, but not a green card, which would provide a path to citizenship. The rationale for this is that those who have not” played by the rules” should not be rewarded with a quick path to citizenship. But the underlying motive for denying a path to citizenship is the fear that these new citizens will vote against the Republican  party. On the other hand, Jose Garcia, a Democrat from Florida believes that not providing a path to citizenship would create an underclass in the US, which is not in keeping with American values. He also cites the examples of the French and German systems where immigrants are not allowed to become French or German, and this has resulted in the kind of social unrest in those countries that we have not seen in the US. It is worth noting that the heavyweight Republican from California, Darrell Issa,  has recently backed a path to citizenship. He stated, "Ultimately, if you're allowed to remain in this country permanently, in almost all cases, there should be a path to citizenship. That is what Abraham Lincoln would have said. That's what the Republican Party stands for." 

We too advocate for a path to citizenship in an immigration proposal that will legalize the status of undocumented workers. We also believe that if the GOP provides a path to citizenship, they need not fear losing them as future voters. Many immigrants can be wooed by the GOP as they too share conservative values, and making it through their own enterprise. Elections have consequences and demography is destiny, especially when it comes to politics. Not wanting to remain a permanent minority, or even lose control of the House of Representatives in the next election cycle, even the most stalwart immigrant bashers in the House GOP leadership are suddenly finding religion and coming to terms with the truth on immigration. Any repentance,  however forced or late is coming, should be accepted. Politics is, if nothing else, that most practical of professions.

Still, even under the most liberal proposal, citizenship is not likely to come automatically or even quickly. First, there will be a probationary period of legal status, and after some years, they will be allowed to apply for green cards. After obtaining a green card, one has to wait either five years, or three years (if married to a US citizen) to be able to naturalize. It is hoped that those opposed to citizenship because they believe that people will become citizens the day after a bill is enacted are educated about the long and arduous wait even under a system that provides a direct path to citizenship. A bi-partisan group of Senators also favor a path to citizenship, but have attached conditions before those legalized can obtain green cards, which is that Congress must first be satisfied that the border is under control. This too is being opposed by immigrant advocates and the White House as those in control of this trigger will always find an excuse to say that the border is not under control. 

However much the authors of this blog want a pathway to citizenship without conditions, we also fervently hope that a once in a lifetime deal to reform the immigration system must not break down on the citizenship issue. There can be many other pathways to citizenship, and it is not true that the undocumented who get a legal status will be part of a permanent underclass.We would refute and reject any proposal that would render anyone legalized permanently ineligible for citizenship.First, let’s take a realistic view on how long folks have been waiting under the current immigration system. Many who have met all their conditions to apply for a green card have been waiting under a backlogged family or employment preference category for more than a decade. The India employment-based third preference is so backlogged that an Indian-born beneficiary of a labor certification filed today by an employer may have to wait for 70 years before he or she can apply for a green card!!  With respect to being on a path to citizenship, they have been worse off than an undocumented person who may legalize under a new immigration reform law. 

Thus, the first order of priority in any comprehensive immigration proposal is to reform the existing legal immigration system. If we expand visa numbers available in the various immigrant visa categories, as well as create more pathways for people to become permanent residents, those already waiting should be able to become permanent residents more quickly and we would even have less illegal immigration in the future. Making legal immigration possible makes illegal migration unnecessary.The 10 million undocumented non-citizens who get legalized, but may not have a direct path to citizenship, could benefit and find other pathways through a reformed and expanded immigration system. Indeed, most of the undocumented who would legalize may already be working or have their own businesses. In a reformed immigration system, they should be able to apply for green cards through their employers or by virtue of having businesses relatively quickly, and then be on a path to citizenship. For example, an undocumented nanny who provides valuable childcare while the parents work, after obtaining a probationary legal status, should be able to get sponsored by an employer for a green card relatively easily and quickly under a reformed immigration system. The same should be true for one who has owned a business for a certain period of time and has hired US workers or has generated a certain amount of revenues over a few years. 

Indeed, this is how all nonimmigrants get green cards, and then become US citizens. The only problem is that it is too hard and takes too long. Then, there are also few avenues for obtaining a green card. If the GOP refuses to provide a direct pathway to citizenship, or a path to citizenship based on conditions, or even if a direct path to citizenship takes a long time,  let’s not fuss too much about it and let’s get on with the goal of reforming the immigration system. In fact, we should use it as a bargaining chip to ensure that we reform the system in such a way that there would be many other readily available paths to citizenship. Then, not having a direct path through a legalization program may not matter so much!Now is the time to bring the undocumented from the shadows into the bright sunshine of freedom. By giving them a stake in society in a fair and balanced manner that respects the law and promotes our values, Congress will make us all proud and turn the page on the next chapter of the American story.

WHEN IS A TWEET AN ATTORNEY ADVERTISEMENT?

By Cyrus D. Mehta

Immigration attorneys have naturally adapted to the internet faster than attorneys in other practice areas. They were the among the first to set up their own web sites, and with the advent of social media have also happily adapted to Facebook, Twitter, Linkedin and other social networks. Using social media helps an immigration attorney to reach out to an audience very quickly, without expending huge marketing resources. Moreover, since the client base of an immigration attorney is not bound by a particular area or state (as immigration practice is mostly based on federal law), and can also be located across the globe, social media can help an immigration attorney reach out to them.

Still, an attorney needs to be mindful of the various ethical rules that would be applicable when using social media. This advisory will focus on the ethical rules concerning advertising, and reference will be made to the American Bar Association’s Model Rules of Professional Conduct and the New York Rules of Professional Conduct, although attorneys are advised to also refer to their own state bar rules of professional conduct.

While this advisory is applicable to all social media messaging, Twitter will be its particular focus since it poses unique challenges compared to other social media. Twitter only allows one to communicate within 140 characters, which can be particular problematic if such messaging needs to include the various disclaimers following an attorney advertisement. Twitter is also more open than other social media sites since a follower does not need permission to follow you. Moreover, even non-followers can view your tweets, which can be constant and numerous. The whole essence of Twitter is to effectively fit your message within a limited number of characters while ethics rules constraining attorney advertising require a lot more verbiage.

While lawyers are permitted to advertise their services, they are bound by various ethical constraints.

Model Rule 7.1 states:

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

Also, many jurisdictions require that when a lawyer advertises his or her services, the words “Attorney Advertising” be stated in such a communication.

For example, this is what New York’s Rules of Professional Conduct Rule 7.1(f) requires:

Every advertisement other than those appearing in a radio, television or billboard advertisement, in a directory, newspaper, magazine or other periodical (and any web sites related thereto), or made in person pursuant to Rule 7.3(a)(1), shall be labeled “Attorney Advertising” on the first page, or on the home page in the case of a web site. If the communication is in the form of a self-mailing brochure or postcard, the words “Attorney Advertising” shall appear therein. In the case of electronic mail, the subject line shall contain the notation “ATTORNEY ADVERTISING.”

However, not every communication made by a lawyer would constitute an advertisement. If a lawyer wishes to quickly share an article in the New York Times as soon as it appears on comprehensive immigration reform onTwitter, would it constitute advertising? This lawyer may have a completely altruistic motivation, which is to share a timely and interesting article on immigration reform to her community of 3,000 followers on Twitter.On the other hand, the lawyer also hopes that by sharing this article, people would realize that the lawyer is on top of the latest developments and may be more inclined to retain her services. Thus, while such a communication does not overtly invite people to employ this lawyer’s services, it might be the underlying motivation of the lawyer to brand herself as someone who is on the top of her game and hope that people would reach out to her.

When does a tweet constitute an advertisement that will be subject to the various ethical constraints? For instance, New York Rules of Professional Conduct at Rule 1.0 defines advertisement as:

"Advertisement” means any public or private communication made by or on behalf of a lawyer or law firm about that lawyer or law firm’s services, the primary purpose of which is for the retention of the lawyer or law firm. It does not include communications to existing clients or other lawyers.

It is thus unclear whether the sharing of the New York Times article would constitute an advertisement as it does not suggest that its primary purpose is for the retention of the lawyer, and then require the attorney under the New York rules to indicate “ATTORNEY ADVERTISING.” Such a requirement with respect to a tweet, which only allows 140 characters, would also diminish the value of the impromptu and conversational tone of the Twitter message, although one should be cautioned that a disciplinary committee would not be concerned about a lawyer’s desire to preserve the spontaneous character of a tweet if it violated the constraints on attorney advertising. 

If every tweet is considered an attorney advertisement, it would be virtually impossible to tweet anything at least under the New York Rules of Professional Responsibility. For instance, under New York Rules of Professional Conduct 7.1(d) and (e), statements that are likely to create an expectation about results the lawyer can achieve have to be accompanied by the following disclaimer: “Prior results do not guarantee a similar outcome.” Moreover, under 7.1(h) all advertisements shall include the name, principal law office address and telephone number of the lawyer or law firm whose services are being offered. Finally, 7.1(k) requires a copy of all advertisements to be retained for a period of 3 years following initial dissemination. This would require an attorney to keep a copy of each of his or her thousands of tweets for 3 years!

Fortunately, the State Bar of California Standing Committee on Professional Responsibility recently issued a helpful ethics opinion clarifying under what circumstances would an attorney’s postings on social media websites be subject to the standards governing attorney advertising. The opinion provides the following examples of an attorney’s postings on her Facebook page, which has about 500 friends.

Example 1

 “Case finally over. Unanimous verdict! Celebrating tonight.”

Example 2

"Another great victory in court today! My client is delighted. Who wants to be be next?”

Example 3

 “Won a million dollar verdict. Tell your friends and check out my website.”

 Example 4

 “Won another personal injury case. Call me for a free consultation.”

 Example 5

“Just published an article on wage and hour breaks. Let me know if you would like a copy.”

California’s Rule 1-400 defining “communications,” which is similar to the New York rule 7.1(f), provides that “any message or offer made by or on behalf of a member concerning the availability for professional employment of a member or a law firm directed to any former, present or prospective client…”

The key determining factor, therefore, is whether an attorney communicates in such a way so as to make himself available for professional employment or for the purpose of retention of his services. Under this standard, according to the California ethics opinion, the following Facebook messages may or may not be communications:

“Case finally over. Unanimous verdict! Celebrating tonight.”

Example 1 is not a communication as it is not a message or offer “concerning availability of professional employment” regardless of the attorney’s subjective intent in sending it.  The opinion thus makes an important point. The communication must overtly suggest that the lawyer is available for professional employment, regardless of whether this was the attorney’s underlying motive in doing so.

“Another great victory in court today! My client is delighted. Who wants to be be next?”

The verbiage in Example 2 “Another great victory in court today! My client is delighted” standing alone is not a communication, but because of the additional text “Who wants to be next?” makes it a communication as it suggests availability for professional employment. Moreover, the opinion goes on to state that an attorney cannot disseminate communications regarding client testimonials unless there is an express disclaimer. The statement further violated California ethical rules as it included guarantees or predictions regarding the representation, which can be deceptive. The statement regarding “Who wants to be next” can be interpreted as who wants to be the next victorious client.

“Won a million dollar verdict. Tell your friends and check out my website.”

“Won another personal injury case. Call me for a free consultation.”

It is readily obvious that both Example 3 and Example 4 constitute communications and are thus subject to the restraints on attorney advertising.  Directing friends to “check out my website” suggests that people may consider hiring her after looking at her website. Even directing people to call for a free consultation can be viewed as a step towards seeking potential employment, and thus such anoffer also constitutes a communication.

“Just published an article on wage and hour breaks. Let me know if you would like a copy.”

According to the opinion, Example 5 did not constitute a communication since the attorney is merely relaying information regarding an article that she has published and is offering a copy. Even communications relating to availability of seminars or educational programs, or mailing bulletins or briefs, do not entail attorney advertising, according to the opinion.

Most immigration attorneys who use social media generally share articles and information, and under this California opinion, may not be constrained by the rules relating to attorney advertising. Still, it is unclear whether other states will follow this logic and important distinction.

Comment 8 to  New York Rules of Professional Responsibility Rule 7.1 is worth noting:

The circulation or distribution to prospective clients by a lawyer of an article or report published about the lawyer by a third party is advertising if the lawyer’s primary purpose is to obtain retentions. In circulating or distributing such materials the lawyer should include information or disclaimers as necessary to dispel any misconceptions to which the article may give rise. For example, if a lawyer circulates an article discussing the lawyer’s successes that is reasonably likely to create an expectation about the results the lawyer will achieve in future cases, a disclaimer is required by paragraph (e)(3). If the article contains misinformation about the lawyer’s qualifications, any circulation of the article by the lawyer should make any necessary corrections or qualifications. This may be necessary even when the article included misinformation through no fault of the lawyer or because the article is out of date, so that material information that was true at the time is no longer true. Some communications by a law firm that may constitute marketing or branding are not necessarily advertisements. For example, pencils, legal pads, greeting cards, coffee mugs, T-shirts or the like with the law firm name, logo, and contact information printed on them do not constitute “advertisements” within the definition of this Rule if their primary purpose is general awareness and branding, rather than the retention of the law firm for a particular matter.

It is advisable that any communication on Twitter, as well as other social media websites, should comport with the last example in the California opinion involving the sharing of information. However, any information written about a lawyer by a third party, which the lawyer then distributes, may constitute advertising. On the other hand, as noted in Comment 8, “[s]ome communications by a law firm that may constitute marketing or branding are not necessarily advertisements.”    A lawyer who chooses to communicate on Twitter in a way that would invite followers to use his services is doing so at his own peril.  It would be impossible to include all the disclaimers required by the ethical constraints in a tweet that can comprise only 140 characters! It is also debatable whether putting a one-time disclaimer in the Twitter header profile would suffice, such as “Tweets = ATTORNEY ADVERTISING.”  Twitter also does not allow you to include more than 160 characters of information in the profile such as the attorney’s address and other disclaimers.Moreover, a disciplinary authority might opine that every tweet ought to have included the required disclaimers since people viewing it in their Twitter feed will not bother to look at the header profile of the attorney. Still, putting a disclaimer in the profile would probably be the best good faith option for an attorney who wishes to use Twitter for attorney advertising. Indeed, New York’s Professional Rules of Professional Conduct Rule 7.1(f) requires the “Attorney Advertising” notation only on the home page of the law firm’s website, and by analogy, it could be argued that putting this notation only in the Twitter profile may comply with the rule. Another option with respect to a tweet that is an advertisement is to provide a link to another site that contains all the additional disclaimers, if applicable. 

In conclusion, social media, especially Twitter, provide a valuable tool for an immigration attorney with limited resources to reach out to a global audience. In order not to get snared by the advertising constraints,  it is best for immigration attorneys to use social media to share information for marketing and branding, which in turn will create awareness of the attorney’s expertise and knowledge in the field. Until the ethics rules catch up, it would also be consistent with the spontaneous character of social media sites, especially Twitter, to use it to share information rather than to engage in outright advertising. Using Twitter in this way is likely to attract more followers than if the attorney used it for blatant advertising purposes only. Also, a tweet involving useful information is more likely to be “retweeted” than an advertisement.  There are other sources for attorney advertising, which unlike Twitter, would not constrain an attorney to include all the necessary disclaimers and requirements under the ethical rules.