Here’s another edition of “Dear Sophie,” the advice column that answers immigration-related questions about working at technology companies.
“Your questions are vital to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder or seeking a job in Silicon Valley, I would love to answer your questions in my next column.”
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The last 24 hours have been a nail-biter; I feel powerless and I’m angry that we’ve come to this. I’m worried things won’t improve and I’m confused about where we even stand.
Sometimes I just feel so very, very tired of the struggle. I am just so ready to let go. I want to live in a world where we can create harmony, peace and opportunity for all. Can I still find that in the United States?
— Wanting in Walnut Creek
I hear you.
The good news is that there is great potential, even as the world watches the U.S. presidential election results. If anything, what the last four years have taught me is that two clichés are really true: necessity is the mother of invention, and, where there is a will, there is a way. I can relate to many folks around the world because I know what it’s like to have the world of Silicon Valley feel so close, yet so far away, at a time when I felt powerless to make a difference.
Looking back over the past four years, amazing things have been possible for our clients and my team at Alcorn Immigration Law. I founded the firm out of my kitchen just years ago when my kids were toddlers. I would look out my kitchen window hand-washing tiny baby dishes. I can still remember the feeling of the suds on my fingers as I gazed longingly at the tall building on Castro Street in downtown Mountain View where 500 Startups used to sit on the top floor. YC was just down the street.
I felt so powerless. I desperately wanted to make the world a better place, and reaching the world of Silicon Valley, even though it was just past my backyard, seemed like getting to Mars.
From those humble beginnings to now, as I founded and bootstrapped Alcorn Immigration Law on my own journey of becoming a single mom, I know what’s possible, even during the last four years of the Trump administration. We’ve had amazing success — claiming thousands of victories in supporting companies, people and families to live and work legally in the United States. If I was able to grow my firm during the last four years, I know that it’s possible for anybody to follow their heart and succeed. It’s our human essence to long to be a creator in this world, and anybody can and deserves to make a difference.
And here is what else I know: immigration law is created by acts of Congress and signed into law by the president. Mere tweets may be intended to try to bend the rules, but they cannot break them. That is what democracy is about.
In democracy, we have agreed to abide by basic laws, such as the inviolable dignity of the human being and that we want to agree on procedures for how we make decisions, like the process of passing a law about immigration. Democracy is not about majority tyranny. Democracy is about the fact that we uphold a few principles and we agreed on a decision-making process. When Trump ignores our basic laws and he ignores our legal processes, democracy is in peril.
But democracy does not need to be disrupted, it only requires small adjustments to thrive. In any group it is possible to make jointly supported decisions, taking the needs and resources of all into consideration. “Although the world is complex and decision making is complex, the components of decision making are simple,” according to Richard Graf, founder of K-i-E. Simple tools like the DecisionMaker can allow a miracle to happen — in an environment of openness and anonymity, we can all safely share our needs and concerns so that proposals can be formed based on collective best practices, knowledge, experience, intelligence and intuition. Even if it’s a complex situation, the way forward can immediately become clear.
And in our democracy, the paths to live and work in the U.S. will always remain viable, even if we need to remove a branch or navigate around a new boulder. Here at Alcorn, despite the furor and fear-mongering present in the world surrounding immigration, we are continually securing real victories for our clients. Not a client yet? Global founders can still create a startup, pitch it to investors and secure pathways to live and work legally in the United States with visas, green cards and citizenship.
So I know this and will repeat: Whatever the election results, there will still be many ways for people to legally navigate the U.S. immigration process and access the opportunity and security of life here. For more insight on these ways, please join my Election Results Webinar next week.
In the meantime, here are my thoughts on how the election results will affect the future of U.S. immigration:
Looking ahead, if Biden takes the victory, he has pledged to undo all Trump-era immigration regulations in the first 100 days and support comprehensive immigration reform. He promised to promote immigrant entrepreneurship, which could finally mean a startup visa! He also wants to speed up naturalization, rescind the Muslim travel bans, pass legislation to expand the number of H-1Bs, increase the amount of employment-based green cards, exempt international STEM PhD graduates from needing to await a priority date, create a new type of green card to promote regional economic development and support immigrant entrepreneur incubators.
Alternatively, we can expect that a Trump administration would continue restricting immigration, leading to litigation and judges deciding the fate of many recent policies. We can foresee a continued COVID freeze on green card interviews at consulates.
Also, DHS recently announced its intent to remove the randomness from the H-1B lottery and prioritize the annual H-1B selection process from highest to lowest wage starting in spring 2021. I’m sure there will be litigation about this; in the meantime, Alcorn Immigration Law continues to recommend that all employers proceed with registering employees and candidates in the lottery as usual. These details will take time to shake out and we don’t want anybody to lose a chance at being selected.
In other updates, immigration is just continuing along and there is actually some great news for folks: The State Department recently released the November Visa Bulletin and it stayed the same from October. (If you think your priority date is current or may be current soon, please contact your attorney as soon as possible to discuss filing your I-485 this month to avoid the possibility of retrogression in December!)
And if you need the freedom to build your startup, but were told that you don’t yet qualify for an O-1A visa, EB-1A or EB-2 NIW green card, you can join me in Extraordinary Ability Bootcamp with promo code DEARSOPHIE to receive 20% off.
We’re optimistic about the future. Life always offers us opportunities to grow through contrast and uncertainty, and we remain passionate about our mission to create greater freedom, empowerment, knowledge and love in the world.
Have a question? Ask it here. We reserve the right to edit your submission for clarity and/or space. The information provided in “Dear Sophie” is general information and not legal advice. For more information on the limitations of “Dear Sophie,” please view our full disclaimer here. You can contact Sophie directly at Alcorn Immigration Law.
At the time of publication, 58.2% of voters (more than 6.3 million people) voted for Prop 22, while 41.5% of voters (about 4.5 million people) voted against it.
The ballot measure will implement an earnings guarantee of at least 120% of minimum wage while on the job, 30 cents per engaged miles for expenses, a healthcare stipend, occupational accident insurance for on-the-job injuries, protection against discrimination and sexual harassment, and automobile accident and liability insurance. It’s worth noting that those earnings guarantees and reimbursement for expenses only reflect a driver’s engaged time, and does not account for the time spent in between rides or deliveries.
Proponents of Prop 22 claimed their win late Tuesday night when about 57% of the votes were accounted for. In an email to drivers tonight, Uber CEO Dara Khosrowshahi notified them of the news.
“With this vote, drivers and delivery people will get what so many of you have been asking for: access to benefits and protections, while maintaining the flexibility and independence you want and deserve,” Khosrowshahi wrote. “The future of independent work is more secure because so many drivers like you spoke up and made your voice heard—and voters across the state listened.”
Uber said it will be in touch over the next few weeks with additional details regarding how to enroll in the new offerings like occupational accident insurance and healthcare subsidies. Meanwhile, some opponents of the measure conceded.
“We’re disappointed in tonight’s outcome, especially because this campaign’s success is based on lies and fear-mongering,” Gig Workers Collective wrote in a blog post. “Companies shouldn’t be able to buy elections. But we’re still dedicated to our cause and ready to continue our fight.”
The folks over at Gig Workers Rising also said the fight is far from over.
“This battle is but a stepping stone towards our continued fight to get gig workers the rights, benefits, and dignified working conditions they deserve,” Gig Workers Rising said in a statement.
Prop 22 was primarily backed by Uber, Lyft, DoorDash and Postmates . Last week, DoorDash put in an additional $3.75 million into the Yes on 22 campaign, according to a late contribution filing. Then, on Monday, Uber put in an additional $1 million. That influx of cash brought Yes on 22’s total contributions to around $205 million. All that funding makes Proposition 22 the most expensive ballot measure in California since 1999.
On the other side, major donors in opposition of Prop 22 included Service Employees International Union, United Food & Commercial Workers and International Brotherhood of Teamsters.
“The reality is that, you know, it establishes a dangerous precedent to allow companies to write their own labor laws,” Vanessa Bain, a gig worker and organizer at Gig Workers Collective, recently told TechCrunch. “This policy was created to unilaterally benefit companies at the detriment of workers.”
The creation of Prop 22 was a direct response to the legalization of AB-5, the gig worker bill that makes it harder for the likes of Uber, Lyft, DoorDash and other gig economy companies to classify their workers as 1099 independent contractors.
AB-5 helps to ensure gig economy workers are entitled to minimum wage, workers’ compensation and other benefits by requiring employers to apply the ABC test. According to the ABC test, in order for a hiring entity to legally classify a worker as an independent contractor, it must prove the worker is free from the control and direction of the hiring entity, performs work outside the scope of the entity’s business and is regularly engaged in work of some independently established trade or other similar business.
Currently, Uber and Lyft are in the midst of a lawsuit regarding AB-5 brought forth in May by California Attorney General Xavier Becerra, along with city attorneys from Los Angeles, San Diego and San Francisco. They argued Uber and Lyft gain an unfair and unlawful competitive advantage by misclassifying workers as independent contractors. Then, in June, the plaintiffs filed a preliminary injunction seeking the court to force Uber and Lyft to reclassify their drivers.
In August, a judge granted the preliminary injunction. Uber and Lyft appealed the decision, but the appeals court last month affirmed the decision from the lower court. However, the decision will be stayed for 30 days after the court issues the remittitur, which the court has yet to do. Meanwhile, both Uber and Lyft previously said they were looking at their appeal options.
Throughout the case, Uber and Lyft have argued that reclassifying their drivers as employees would cause irreparable harm to the companies. In the ruling last month, the judge said neither company would suffer any “grave or irreparable harm by being prohibited from violating the law” and that their respective financial burdens “do not rise to the level of irreparable harm.”
But now that Prop 22 is projected to pass, this lawsuit has far less legal ground to stand on. It’s also worth noting that Uber has previously said it may pursue similar legislation in other states.
The California Secretary of State began releasing partial election results from the state’s 58 counties at 8 p.m. PT. However, do not expect a final count tonight, or even tomorrow. That’s partly due to the fact that California accepts absentee ballots postmarked no later than Nov. 3, 2020. Meanwhile, county elections officials have until Dec. 1, 2020 to report final results.