You probably spend much of your time at work in front of a computer. When you are on the run, you use your Blackberry or iPhone for both work and pleasure. But who owns the data that is created, viewed and stored while working?

If you work in New York for a private company, you have a reasonable expectation of privacy for your electronic devices, work computers and cellphones. This is especially the case when the company that you work for does not have a policy regarding internet usage. As a result, I have been advising companies to cover their bases by clearly and specifically drafting internet usage policies that explains their employees expectation of privacy.

Restrictive internet usage policies usually include the following:

1. All the data that is stored on work computers is company property;
2. Employee’s have no expectation of privacy;
3. The Employer may monitor its employees computer usage without their knowledge.

The law regarding restrictive internet usage policies have been looked at with increasing scrutiny by the courts.  For example, a recent court ruling did not allow an employer to access the Hotmail account of its employee.

Despite a written internet usage policy, employers are not immune from potential lawsuits from employees. Listed below are restrictions that employers should be aware of:

• PRIVILEGED DISCUSSIONS. Discussions regarding attorney-client communications may continue to be privileged.  If an employee is using the internet for legally permitted employee, like union organizing her communications may be privileged.
• DISCRIMINATION. Be aware that you cannot treat your employees differently while monitoring their computer usage.
• ACCESSING PRIVATE ACCOUNTS. You cannot access your employee’s Twitter account simply because they accessed their account at work.
• NEW YORK STATE LAW. Believe it or not, New York State does not have an invasion of privacy law.  Be aware that you cannot fire an employee simply because she tweets.

Be aware that case law is changing on this subject.  As a word of caution, use your common sense and think about the golden rule.

For more reading:  Who Owns all the data in the Workplace

If you have any questions about who owns your data at work, contact me at the Law Office of Frederic R. Abramson at 212-233-0666.

New H-1B visa applications for Fiscal Year 2011 have been accepted by USCIS since April 1, 2010.  The Immigration service has received only approximately 13,750 H-1B visa petitions.  The cap for 2011 is 65,000.  This is a huge decrease in visa applications compared to 2010.  I expect  that H-1B visa numbers will be available for quite some time.

H1-B applications can be filed with premium processing with an additional $1000 fee.  If you file an application using premium processing, the USCIS must process your application within 15 days that the petition is received.

What is an H-1B visa?

H-1B visas are granted by the immigration service (USCIS) to foreign nationals that are individuals who are offered a position in a specialty occupation.

What is a Specialty Occupation?

A specialized occupation is one in which require a high level of specialized knowledge.  The Immigration Service generally mandates that the job offered to would required at least the equivalent of a 4-year US Bachelor’s degree.

Employer Requirements:

• The job offer must be in a specialty occupation
• The job offered for the visa must meet Department of Labor criteria for wages
• The company, not the employee submits the immigration visa application
• No US Citizen is available for the job

Advertising Requirements:

• The employer is required to advertise the position offered in the United States before petitioning to employ H-1B workers for those positions

If you have a question regarding H-1B visas or any immigration matter, contract me at the Law Office of Frederic R. Abramson at 212-233-0666.

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Senators Dick Luger and John Kerry introduced today a new piece of legislation entitled “The Startup Visa Act of 2010.” This visa would permit immigrant entrepreneurs to stay or immigrate into the  United States if they have secured “significant” funds to start a new company. The goal of the act is to bring new jobs, opportunity and investment to the US.

To make the visa available, a new EB-6 category would be created. This new visa category would draw from visas under the existing EB-5 category.

One potential sticking point for many budding entrepreneurs is the proposed legislation’s definition of “significant” funds. The bill requires investment capital available from a sponsoring US venture capital or angel investor of at least $100,000 in an equity financing of not less than $250,000. If after 2 years the immigrant entrepreneur can show that he or she has generated at least 5 full time jobs or attracted at least $1 million in additional capital or revenue, then he or she would achieve legal status.

Clearly, this bill is aimed at attracting startup immigrant all-stars. Perhaps the young entrepreneur from Russia who started Chatroulette would qualify.  It will also help young entrepreneurs with great ideas who have recently graduated from college who have  obtained venture funding.

Most immigrant entrepreneurs who contact my office have great ideas but only limited access to capital.   I field a few calls a week from potential immigrant entrepreneurs who have amazing business plans which would be inexpensive to implement, but would fall short of the capital requirements.  I am not sure Bill Gates would qualify for a visa under the Startup Visa Act of 2010 if he hailed from Bangalore when he started Microsoft.

Nevertheless, this proposed law is  a step in the right direction and I support the bill.

Full Text of Proposed Legislation of The Startup Visa Act

On April 1, 2010 The United States Citizenship and Immigration Service (USCIS) will accept new H-1B visa applications for Fiscal Year 2011 (for work which starts on October 1, 2010).  Now is the time to review your files to see whether you are in need of any H-1B visas for your workers.

You should be on the lookout for any interns from colleges working for you or anyone else who has a  J-1, E-1, E-2 or O-1, to H-1B visa. Be aware that the paperwork to file H-1B visa preparation is  more lengthy than ever.  This is because the Department of Labor is requiring a Federal Tax ID verification process.

What is an H-1B visa?

H-1B visas are granted by the immigration service (USCIS) to foreign nationals that are individuals who are offered a position in a specialty occupation.

What is a Specialty Occupation?

A specialized occupation is one in which require a high level of specialized knowledge.  The Immigration Service generally mandates that the job offered to would required at least the equivalent of a 4-year US Bachelor’s degree.

Employer Requirements:

• The job offer must be in a specialty occupation
• The job offered for the visa must meet Department of Labor criteria for wages
• The company, not the employee submits the immigration visa application
• No US Citizen is available for the job

Advertising Requirements:

• The employer is required to advertise the position offered in the United States before petitioning to employ H-1B workers for those positions

H-B Limits:

• Only 65,000 of the immigration visa applications are issued every year
• Non-profits visa applications are exempt from the cap

Because the H-1B Visas are limited each year and often exhausted on the first day of filing, it is important to start the application process now.

Call the The Law Office of Frederic R. Abramson if you have a question about immigration at 212-233-0666 or visit my website.

Attorney General Andrew Cuomo obtained a temporary restraining order against the International Immigrants Foundation, Inc. (“IIF”), International Professional Association, Inc. (“IPA”), and their President Edward Juarez.

The Attorney General seeks to prevent these organizations from continuing their fraudulent practices and seeks restitution for victims. These companies are alleged to have defrauded immigrants with false promises of citizenship, engaging in the unauthorized practice of law, and illegally charging exorbitant fees for services.

“These businesses make millions of dollars by exploiting the dreams of New York’s immigrant community,” said Attorney General Cuomo. “By lying about their ability to provide legitimate legal services, these organizations threaten to devastate families and their hopes of a new life. We intend to hold these organizations accountable for their actions and their blatant disregard for the people they claim to help.”

Companies that provide immigration services illegally by engaging in the unauthorized practice of law is a major issue in New York’s immigrant communities.  There are literally hundreds of such services in New York’s Chinatown.  Most do not get caught.

Be aware that if you hire an immigration service that is not a law firm, they will not be able to represent you at any hearing before the USCIS.

The Law Office of Frederic R. Abramson practices immigration law. If you have any questions regarding your immigration matter call me at 212-233-0666.

As a businessman entering the  United States, there are a variety of visas which may allow entry.  For example, if your company is interested  in attending a trade show in New York, an inexpensive and easy option is to enter the US using a B-1 visa.  However, a B-1 visa is limited to authorized business activities only.  What about contract work? The issue then becomes whether entry can be classified as an authorized business activity rather than prohibited labor or work.

The Immigration Nationality Act does not allow a vistor on a B-1 Visa to perform any type of labor. The Department of Justice defines “business” to include conventions and consultations.  It prohibits work for hire.

It is often difficult to distinguish between authorized work activities and labor.  In determining whether a  B-1 visa may be approprate  immigration officialls may question whether:

• The activities that are incidental to work that will principally be performed outside the US;
• The source of payment for any services rendered;
• Actual place where any profits were made. 

There are 3 broad exceptions that a B-1 visa holder cannot accept local work.  These are:

1. Industry-specific exceptions for certain situations, like tennis players performing at a tournament;
2. An employee of a US citizen, such as a nanny who will enter the US on a temporary basis;
3. Limited training activities.

CONCLUSION

Unfortunately, there is a lack of predictability and consistency in making the determination whether a B-1 is appropriate.  One place to turn is the  Department of Justice Family Foreign Affairs Manuel (available at www.state.gov/m/a/dir/regs/fam/. )   There are 18 pages of examples allowable activities under a B-1 Visa.

The consequences for inappropriately classifying yourself as B-1 Visitor is significant, which include a five year bar from entering the US.