US Visas - An Overview

7/28/2019 US Visas - An Overview

1/54

1

US Visas And Immigration Law,Indian Dual Citizenship, And

Certain International Laws On The BPOIndustry

Speaker

Poorvi Chothani, Esq; LL.M. (UPenn)

Correspondent Attorney to Cyrus D. Mehta andAssociates PLLC

Date: December 27, 2005

[email protected] 98209 39666
mailto:[email protected]:[email protected]


2/54

2

Visas and Immigration Law

Overview of US Immigration Law

H-1B Visas

New Visa Restrictions on L-1 IntraCompany Transferees

PERM

Update on Indian Dual Citizenship


3/54

3

TRENDS IN IMMIGRATIONPOLICY

20,000 H-1Bs for students withadvanced degrees.

About 2000 of these were still availablein September 2005

11+ million undocumented

immigrants.


4/54

4

NONIMMIGRANT VISAS

issued to persons who wish to enter the US for aspecific purpose and for temporary periods of time.

are mainly B-2 tourist visa or B-1 business visa;or other commonly utilized visas:

- student F visa- J visa for exchange visitors and foreignmedical graduates

- H-1B visa for persons who are employed bycompanies in the US for professional jobs.

-L-1 Visas for intracompany transferees


5/54

5

NONIMMIGRANT VISAS

Every applicant is presumed to be an immigrantunless he or she can establish otherwise.

Nonimmigrant must show: they have no intention of abandoning their foreign

residence during their stay in the US;

ties to the home country such as employment, history ofpast travel, and realistic/credible plans of travel.

H-1B and L-1 allow for dual intent and do not require ashowing of ties to the home country


6/54

6

H-1B VISA NUMBERS

U.S. masters degrees could run out soon if notalready. No up to date information available.

Employers and Individuals who wish to file H-1Bsunder the masters degree cap to do so quickly.

On December 8, 2004, the US Congress created20,000 new H-1B numbers that would be exemptfrom the 65,000 cap.


7/54

7

NEW H-1B REFORM LAW

16,098 cases counted against 20,000 caps(12,647 approved and 3,451 pending)

20,000 will only apply to those who have

graduated from US institutions withadvanced degrees.

imposed a training fee of

-$1,500 for companies with 25+

employees.-$750 for companies with 25 or lessemployees.

Fee does not apply to certain entities or

situations.


8/54

8

NEW H-1B REFORM LAWcontd.

There will be a fraud fee for H-1Bs filed by newemployers. Does not apply to extensions by sameemployer.

Dependent H-1B displacement and recruitmentattestations have been re-instituted.

Employers to pay 100% of Prevailing Wage asopposed to 95% previously.

New law mandates DOL to maintain a 4 levels

precise prevailing wage system.


9/54

9

OTHER EXEMPTIONS TO 65,000H-1B CAP

H1B cap will not apply to:

-H-1B extension requests with the sameemployer or from one employer to another.

-if the sponsor is an institution of highereducation or an affiliate entity, or if the sponsoris a non-profit research organization orgovernmental research organization.

-one who received H-1B in the past six years.

-physician who has received state or federalagency sponsored J-1 waiver.


10/54

10

SUBSTANTIVE H-1B VISA LAW

H-1B visa:- issued to individuals employed in

specialty occupations.

- requires the minimum of a bachelorsdegree or foreign equivalent for

entry into that occupation.

- work experience may substitute for abachelors degree.


11/54

11

H-1B LABOR CONDITIONAPPLICATION

H-1B dependent employers have toadditionally attest that they have notdisplaced US workers and that they

have conducted recruitment of USworkers before filing the LCA.

Filing a Labor Condition Applicationwith the Dept. of Labor is the firststep in the H-1B visa process.


12/54

12

PROCESSING TIME FOR H-1BPETITION

Processing time is 60-90 days.It could bespeeded up through premium processing byemployer paying a fee of $1,000.

H-1B visa status confers portability to thenext job, ie. one can commence working foranother employer when the new employerfiles the H-1B petition. There is no need to

wait for the approval.


13/54

13

H 2B VISAS

H-2B visa allows U.S employers to augment theirexisting labor force:


14/54

14

H-2B Numbers

As of December 2005 for the Fiscal year2006

27,937 approved and 7,631 pending;

35,568 cases counted against the half-year cap

Cap of 33,000 half-year cap

USCIS will cut off at 52,000 (anticipates62 percent approved beneficiaries willobtain visas)


15/54

15

THE L-1 VISA

The L visa facilitates the transfer ofpersonnel from a foreign entity to aUS subsidiary, parent or affiliate.

Only top level managers,executives or employees with

specialized knowledge can betransferred from the foreign entityto the US entity.


16/54

16

THE L-1 VISA

The transferee must have beenemployed in the foreign entity forat least one year as an executive,

manager, or in a specializedknowledge capacity in theimmediately preceding three years

In Blanket L cases, the priorexperience is now one year insteadof six months.


17/54

17

BACKGROUND TO THE L-1 VISAREFORM

The L visa program becamecontroversial earlier in 2003 when

there were allegations that it wasbeing abused.

At issue was whether an Lemployee could be outsourced toa client company in the IT field.


18/54

18

BACKGROUND TO L VISAREFORM

Several proposals in the USCongress to restrict the L visa

program resulted in a new lawbeing enacted in December 2004.

Created new restrictions to the L-1B visa.


19/54

19

NEW L-1 VISA REFORM LAW

The New Reform Law:

-prohibits placement of L-1B at ThirdParty site if employment not controlled

by the petitioning employer;-increased L blanket overseas entityexperience requirement from 6 monthsto one year;

-creates Fraud Fee of $500 for all new L-1A and L-1B employer filings.

-does not apply to L extensions.

Strict scrutin to check if transferee is


20/54

20

OVERVIEW OF LEGALIMMIGRATION

FAMILY-BASED IMMIGRATION A US citizen or Green Card holder cansponsor his or her close family

members for permanent residence.

EMPLOYMENT-BASED IMMIGRATION-A US employer can sponsor a foreign

national employee for permanentresidence.


21/54

21

OVERVIEW OF LEGALIMMIGRATION

REFUGEE OR POLITICAL ASYLUM A personoutside the US can seek protection as a refugee orwithin the US through political asylum. S/he mustprove a well founded fear of persecution on one ofthe following grounds: race, religion, nationality,

membership in a social group or political opinion.

DIVERSITY PROGRAM - The US issues 50,000 greencards through a lottery program every year.Nationals of countries with high immigration rates,

such as India, are excluded.


22/54

22

FAMILY-BASED IMMIGRATION

IMMEDIATE RELATIVES are spouses of US citizens,unmarried children of US citizens and parents of UScitizens. There is no quota.

U.S citizens resident in Canada who wish to file I-130petitions on behalf of their spouses, minor children orparents may now do so in person at the U.S. Embassy orU.S. Consulate in whose district they reside.

The FAMILY PREFERENCE (OR QUOTA) SYSTEM allowsinto the US:

Adult children and brothers and sisters of US citizens

Spouses and unmarried children of Green Cardholders.


23/54

23

LABOR CERTIFICATION Labor Certification is generally the first step toward the

Green Card when an employer sponsors a US worker. The US employer establishes that it has unsuccessfully

tested the US labor market in the local area ofemployment.

The employer generally places advertisements for thejob in a newspaper and also conducts other forms ofrecruitment, such as contacting headhunters or campusinterviews.

If the Department of Labor is satisfied of theunavailability, it grants labor certification, after which an

employer can file applications with the DHS for theGreen Card.


24/54

24

PERM

An employer may at any time;Withdraw an application filed under theregulations in effect prior to March 28,2005.

May Refile under PERM provided criteriais met

Provided certain criteria are met


25/54

25

PERM

The final Program Electronic ReviewManagement (PERM) published after two and ahalf years.

PERM to streamline the labor certificationapplication process for the permanent

employment of aliens in the United States.

DOL introduced speedy and consistent processfor alien labor certifications and to maintaincontrols.


26/54

26

PERM Steps

Obtain Prevailing Wage Determination(PED) from State Workforce Agency(SWA)

Post Internal Job Notice for 10consecutive business days

Job Notice to be posted on employersstandard electronic and printed methods

Place job order with SWA Two Sunday Newspaper Advertisements


27/54

27

PERM Steps

Three Additional steps for recruitment

Employer must prepare report ofrecruitment efforts and of the resumes

received pursuant to recruitment efforts Must prepare audit file

If no US worker available file FormETA 9089 electronically

DOL will certify if file not selected foraudit


28/54

28

PERM PWD

Prevailing Wages:Equal to or greater than the prevailing wage.

Must be at least 100% of prevailing wage, the 5%deviation is no longer acceptable.

Median will be used, provided survey provides a

median and not an arithmetic mean.

Validity period 90 days to 1 year depending on thewage source used.


29/54

29

PERM - Recruitment

Recruitment (more than 30 daysand less than 180 days) prior tofiling.

Additional steps are required forprofessional occupations.


30/54

30

USCIS - Petition

After PERM application is certified

Petition to be filed with documents toestablish that recruitment requirementswere fulfilled

Adjustment of Status, EAD card(authorizing work) and advance parole(travel documents) may be filed

concurrently


31/54

31

CHANGES MADE IN THE NEWSYSTEM

Revocation:

Certifying officers have the authorityto revoke approved labor certifications.

Adjudication :

Either certify or deny applications.

Notice of Finding has beeneliminated.


32/54

32

Biometrics Update

Individuals under Visa Waiver Program must

have passports with digital photographsCarriers liable to penalty of US$ 3,300 if theybring individuals without appropriate passport

DHS to upgrade the nations biometric visitor

tracking system. May require 10 fingerprints as opposedto two

Dept of State US passport regulations toincorporate changes related to the introduction ofthe electronic passport.


33/54

33

Overseas Citizenship ofIndia (OCI)

Operational w.e.f from December 2, 2005

Include eligible foreign nationals of Indian origin ofall countries barring Pakistan and Bangladesh

Registration process can be done online at the

Ministry of Home Affairs website: www.mha.nic.in

Provides for reacquisition or acquisition of Indian

citizenship without surrendering the foreign

nationality.
http://www.mha.nic.in/http://www.mha.nic.in/http://www.mha.nic.in/http://www.mha.nic.in/http://www.mha.nic.in/http://www.mha.nic.in/http://www.mha.nic.in/http://www.mha.nic.in/


34/54

34

OCI Contd.

The Citizenship Act 1955 (the Act) amended to

include persons of Indian origin of most nationalities.

The Act earlier amended in 2003 was further

amended by the Citizenship (Amendment) Act, 2005

(the Amended Act) in August 2005. Citizenship Rules, 1956 have also been amended.

Passport (Entry into India) Act, 1920 andRegistration of Foreigners Act, 1939 also amended.


35/54

35

OCI - Eligibility

A foreign national, who was eligible to become a

citizen of India on January 26, 1950; or Was a citizen of India on or at anytime after January

26, 1950; or

Belonged to a territory that became part of India

after August 8, 1947; or

Child or grand child of person mentioned in 1 to 3;

or

Minor children of such persons mentioned above.


36/54

36

Benefits of OCILife long multi-entry, multi-purpose visa to visit

or live in India. Registration requirements eliminated.

The Ministry of Overseas Indian Affairs under

the Act may announce other benefits to OCIs in

future.

No Oath of allegiance required so does not violate

dual nationality restrictions of most countries


37/54

37

Impact of Certain Laws on

the BPO Industry


38/54

38

Topics

EU Data Protection Directive

Certain US Federal Laws

Certain US State Laws and

Pending BillsSuggested Best Practices


39/54

39

The EC Data Protection Directive(EU Directive)

Recognizes privacy as a right

Data protection principles - limit theprocessing and transfer of personal

information, including transfer of thedata to countries outside the EU


40/54

40

EU Directive Contd.

Each EC Member State has to enact lawsin keeping with the EU Directive

For e.g. the EU Directive implemented

by the United Kingdom Data ProtectionAct 1998.

Approved set of standard contractual

clauses EU Directive applies to the processing

of personal data


41/54

41

EU Directive Contd.

Restricts the transfer of personal data outsidethe EU Countries unless the other countryensures an adequate level of protection

The data controller is liable for ensuring that

these principles are adhered to Transfer to Countries with Adequate Protection

without additional adequacy requirementspermitted

European Court recent holding mere accessfrom non-EU country does not constitutetransfer.


42/54

42

Some Options for Transferunder the EU Directive

Adopt Standard Contract Clauses

Unambiguous Consent to transfer fromaffected individuals

Negotiated Protections acceptable in the UK

Codes of Conduct

Direct Compliance/registration with EUAuthority

Some EU countries require that a copy of the

executed agreement with the standard clausesbe deposited with the regulatory authority this is not the case in the UK.

Adopt Safe Harbor


43/54

43

US Federal Laws

The Graham-Leach-Bliley Act 1999(GLBA)restricts the transmission of personal data to thirdparties and was enacted to ensure that financialinstitutions take meaningful measures to protect their

customers' personal information

The Sarbanes-Oxley (SOX) Act, impact on UScompanies as well as auditing firms. When work isoffshored, companies could face conflicting laws onaudits and corporate governance and require reportsto attest that outsourcing firms have internal controlsin place to comply with SOX and other regulations.


44/54

44

US Federal Laws

The Childrens Online Privacy ProtectionAct(COPPA) is designed to protect, among otherthings, against the eliciting of personal data fromchildren by an operator of any websitedirectedto

children under thirteen years of age that collectspersonal information from children.

The Health Insurance Portability and

Accountability Act (HIPAA) mandates theestablishment of privacy protections for health careinformation.


45/54

45

US Federal Laws

The Federal Credit Reporting Act limitsaccess to credit histories and otherpersonal information.

The Fair and Accurate CreditTransactions Act of 2003 requires theproper disposal of consumer information orcompilation by any person that maintainsor otherwise possesses or compiles

consumer information. The Telephone Consumer Protection

Act, restricts the use of the telephone andfacsimile machine to deliver unsolicited

advertisements.


46/54

46

US State Laws and Pending Bills

Laws or Bills regulate privacy and personal data,

impose obligations on call center activities and to

minimize or ban offshoring of contracts.

Some of these hope to protect US workforce. Many of the bills may fail, be significantly diluted or

be challenged on grounds of constitutionality or found

to violate international trade agreements.

Most Bills apply to state contracts alone. But some do

not specify this.

d


47/54

47

US State Laws or PendingBills

North Carolina and Washington have bills that requireall contractors to disclose where work on the statecontracts will be performed, which can affect theevaluation of the bid.

Oregon, Minnesota, and Massachusetts have bills thatrequire call center operators to disclose their location.

A Texas billprohibits the employment of foreignworkers on state contracts.

US S L P di


48/54

48


New York, Massachusetts, Texas, West Virginia,

Oregon, Pennsylvania, Florida, Maryland, Missouri

and Nevada have bills that curtail the granting of

state contracts to non-US workers or restrictperformance of state contracts outside the US.

Iowa has a bill that provides for preference forcallcenters contracts to be performed with US citizensor others authorized to work in the US.

US S L P di


49/54

49


Connecticut bill:

Would require companies with a net jobloss of one hundred or more to

Submit to the states Development ofEconomic and Community Development

A statement including the number of jobsthe company cut

Would also allow a citizen who believes hehas lost his job as a result of outsourcing toreport the loss to the state for record-keeping purposes.

US St t L P di


50/54

50


The United States Workers Protection Act of 2004 -

prohibits federal contract work from being performed

overseas except in the interest of national society.

The American Manufacturing Jobs Retention Act of2003 - any contractor performing services for a US

agency must employ at least 50 percent of its workers

in the United States.

In addition executive measures and regulations mayapply to privacy issues to outsourced work that doesnot deal with private information.


51/54

51

Suggested Best Practices

for

The BPO Industry

Best Practices for


52/54

52

Best Practices forManagement Commitment of senior management staff to implement

security and compliance measures

Retaining an attorney who is familiar with the legalprovisions of the customers country

Dedicated Security Officer appointed by the OSP

Onsite Manager appointed by the customer

Employee Background Checks

Centralized Data Bank of Prior Violators (as initiated byNASSCOM)

Need Based Dissemination of Information - Division of

process, access and/or control Technical Limitations on Access or Communication of

different processes

Standard Written Internal Company Practices with recordedStandard Operating Procedures Manuals

Suggested Best Practices for


53/54

53

Suggested Best Practices forWorking Managers and ChiefExecutives

Independent Certification

Technical and Physical Security of Infrastructure

Disaster Recovery Plan

Self-Regulation and Compliance Training

Effective and Comprehensive Contracts

OSP should inform customer about any infractions to mitigatedamage

Customer should be responsible for informing the OSP about anychanges in applicable laws or compliance requirements

Establishment of an Independent Governing Body to regulate theindustry

Insurance to cover risks of security breaches and/or loss of data Insurance to cover risk of claims arising out of the quality,

timeliness and quantity of services


54/54

54

Thank You

Poorvi Chothani, Esq.

LawQuest

36, Maker Tower F

Cuffe Parade

Mumbai 400 005E-mail [email protected]

Telephone 00 91 22 5654 1671

US Visas - An Overview

Documents

Transcript of US Visas - An Overview