CONTEMPORARY BUSINESS IMMIGRATION ISSUES

Cyrus D. Mehta, Esq. Poorvi Chothani, Esq.

Sponsored by: Cyrus D. Mehta & Associates, PLLC, New York LawQuest, Mumbai, India The Oberoi Hotel, January 4, 2008
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ABOUT CDMA: Immigration Law

According to Chambers USA:
This immigration boutique enjoys a strong and healthy reputation for its legal offerings to businesses and individuals alike. There was resounding client feedback that the firms service was second to none. Clients particularly praised the lawyers professional approach: They handle matters by the book and always ensure all documents are in place at the right time. Providing its clients with feedback off the bat, the group handles all immigration-related work, developing expertise in obtaining O visas as an alternative to the H-1B and in the newly implemented PERM process.
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ABOUT CDMA: Thought Leader in Immigration Law

CDMA is a member of the prestigious Alliance of Business Immigration Lawyers (ABIL), www.abil.com CDMAs website, www.cyrusmehta.com, is an acknowledged resource to attorneys and clients.

CDMA offers a web-based case management system accessible by clients anywhere in the world.
Through LawQuest, CDMA offers broad based services, including India-related immigration.

About LawQuest
Provides Client Centric Legal Solutions Sole Correspondent To Cyrus D. Mehta and Associates, PLLC (US Immigration and Nationality Law) Invited to Become a Member of the Alliance of Business Immigration Lawyers Member of the European Association of Attorneys A Worldwide Network Of Lawyers

LawQuests Areas of Practice

Commercial And Real Estate Transactions Litigation Arbitration, Mediation and Conciliation Global ,* US and Indian Immigration

LawQuest
Testamentary and Family Law Intellectual Property Rights (IPR)

Information Technology And Entertainment Law

*Through Its Associates Worldwide

TOPICS
Navigating the L Visa: A Viable Alternative to the H-1B visa. B-1 Visa and Other Short Term Options.

Gearing for Filing H-1Bs on April 1, 2008 and H-1B Compliance Issues.
Permanent Residency Options including PERM. Foreign Nationals Working in India.
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TRENDS IN IMMIGRATION POLICY

Enforcement oriented approach. Backlogs in Employment-based categories. H-1B Visa Program has become a lottery. Scrutiny on L visa petitions PERM program is working, but increased number of audits. Tendency toward providing global immigration services.
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THE L-1 VISA

The L visa facilitates the transfer of personnel from a foreign entity to a US subsidiary, parent or affiliate.

Only top level managers, executives or employees with specialized knowledge can be transferred from the foreign to the US entity.

THE L-1 VISA

The transferee must have been employed in the foreign entity for at least one year as an executive, manager, or in a specialized knowledge capacity. In Blanket L cases, the prior experience is also one year instead of six months.

2004 L-1 VISA REFORM LAW

The new law restricts the L-1B visa, for specialized knowledge workers. New law prohibits placement of L-1B at Third Party site if employment not controlled by the petitioning employer; or Is being placed at third party site to provide labor.

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2004 L VISA REFORM LAW

If L-1B is being placed at job site, must be controlled by petitioner and must continue to be providing services of a specialized knowledge nature concerning the employers product or services. New law also increased L blanket overseas entity experience requirement from 6 months to one year.

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MAKING THE CASE FOR THE L-1A VISA

Must establish that the position is truly managerial or executive. Manager manages the organization, department, subdivision, function or component. Supervises and controls the work of other supervisory, professional or managerial employees, or manages an essential function within the organization. Has authority to hire and fire, or manage an essential function at a senior level within hierarchy or as to the function managed. Exercise discretion over day to day operations of the activity or function.

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MAKING THE CASE FOR THE L-1A VISA

An Executive directs the management of the organization or a major component or function. Establishes goals or policies.

Exercises wide latitude in discretionary decision making, and

Receives only general supervision or direction from higher level executives, board or stockholders.

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MAKING THE CASE FOR THE L-1A VISA

Who are the personnel reporting to the L manager? Are they other managers? A first line manager can only qualify if s/he is supervising other professionals. Supervision includes supervising independent contractors.

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MAKING THE CASE FOR AN L-1A VISA

Functional Manager may also qualify. But need to show that s/he will be managing an essential function and not performing the duties of the function. A functional manager must also be performing at a senior level within hierarchy or within function managed.

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MAKING THE CASE FOR AN L-1A VISA

Choose either Manager or Executive; do not blur the distinction. L manager for smaller organizations is challenging, but not impossible. Must have detailed organizational charts of position in the US and in India.

For supervisors, show that s/he manages professionals by submitting credential evaluations of their degrees.
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MAKING THE CASE FOR THE L-1B VISA

The L-1B needs to possess specialized knowledge of the companys products, services, research, equipment, techniques, management or other interests. The specialized knowledge must have its application in international markets or must be held at an advanced level. However, this knowledge need only be different and not proprietary or unique. The specialized knowledge need not be narrowly held throughout the company.
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MAKING THE CASE FOR THE L-1B VISA

Must show how the specialized knowledge is valuable to the employers competitiveness in the market place. Is uniquely qualified to contribute to the US employers knowledge of foreign operating conditions; Has been utilized as a key employee abroad and has been given significant assignments which have employed employers productivity, competitiveness, image or financial position; Possesses knowledge that can be gained only through extensive prior experience with that employer.
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MAKING THE CASE FOR THE L BLANKET

Petitioner has office and has been doing business in the US for one year. Petitioner has 3 or more domestic and foreign branches, subsidiaries or affiliates. Petitioner and entities are engaged in commercial trade or services. Combined annual sales of $25 million, US workforce of 1,000 or received approval of at least 10 Ls in last 12 months.
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MAKING CASE FOR BLANKET L-1B KNOWLEDGE PROFESSIONAL

Person with specialized knowledge who is a member of the professions. Must have a professional degree, which equates to a US bachelors degree. Generally, education and work experience is not acceptable.

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BUSINESS VISAS
Business visitors enter on a B-1 visa holders to conduct business, marketing, negotiating purchases and contracts. They must not be engaged in productive employment in the US either for a US employer or on an independent basis. Any work done in the US must be performed on behalf of a foreign employer and paid for by the foreign employer. The work should also be related to international commerce or trade.

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APPROPRIATE ACTIVITIES ON A B1 VISA

Employees of a US company's foreign office coming to the US to consult with the US company An employee of a foreign company coming to the US to handle sales transactions and purchases and to negotiate and service contracts Coming to the US to conduct business or market research Coming to the US to interview for a professional position in order to gain experience to help in finding a position in one's home country Attending business conferences, seminars, or conventions An investor coming to set up an investment in the US or to open a US office

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B-1 in lieu of an H-1B VISA

The applicant needs to qualify for an H-1B visa Must continue to be paid out of the foreign company Must continue to have a nonimmigrant intent

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H-1B VISA NUMBERS

The H-1B Visa Quota was 195,000 from 20002003. On October 1, 2003, the quota reverted to the pre-existing cap of 65,000. Congress later added 20,000 H-1Bs for US Masters degree holders. In FY 2008, H-1Bs used up during first day of filing. H-1B is now a lottery.

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H-1B VISA NUMBERS

Start preparing petitions for submission by April 1, 2008. Avoid duplicative filings, unless the beneficiary qualifies under 65,000 and Masters cap. Ensure that beneficiary will be able to perform work immediately. Must be able to submit contract with end user. All documents for eligibility to be submitted, such as completion of degree and LCA with petition. Double check petition for accuracy so as to avoid rejection.

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EXEMPTIONS TO 65,000 H-1B CAP

In addition to the new 20,000 exemption, the cap will not apply to H-1B extension requests, with the same employer or from one employer to another. The cap will not apply if the sponsor is an institution of higher education or an affiliate entity, or if the sponsor is a non-profit research organization or governmental research organization.
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OTHER EXEMPTIONS TO 65,000 H-1B CAP

Does not apply to one who received H-1B in the past six years, and who is not eligible for another six years.

Does not apply to physician who has received state or federal agency sponsored J-1 waiver.

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SUBSTANTIVE H-1B VISA LAW

The H-1B visa is issued to individuals employed in specialty occupations. A specialty occupation requires the minimum of a bachelors degree for entry into that occupation. The individual entering into the specialty must possess a bachelors degree or foreign equivalent.
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SUBSTANTIVE H-1B VISA LAW

The occupation must generally require the bachelors degree or equivalent. Work experience may substitute for a bachelors degree.

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H-1B LABOR CONDITION APPLICATION

Filing a Labor Condition Application with the Dept. of Labor is the first step in the H-1B visa process. The employer must attest on the LCA that it is willing to pay the higher of the prevailing or actual wage at area of employment. The employer must also attest that it will provide the same working conditions for H-1B workers, as well as attests that there is no strike or lock out.

Finally, the employer must post notice of the job and wage for 10 days at worksite, including client worksite.
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H-1B LABOR CONDITION APPLICATION

H-1B dependent employers have to additionally attest that they have not displaced US workers and that they have conducted recruitment of US workers before filing the LCA.

Many dependent H-1B employers use the exemption: pay $60,000 or hire an H-1B with a Masters degree related to the occupation.

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PROCESSING TIME FOR H-1B PETITION

Processing time is 60-90 days. It could be speeded up through premium processing by employer paying a fee of $1,000. H-1B visa status confers portability to the next job, ie. one can commence working for another employer when the new employer files the H-1B petition. There is no need to wait for the approval.

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OTHER NONIMMIGRANT VISA CATEGORIES

The J-1 visa allows one to train with a company for a temporary duration. J-1 visa holders are often subject to a two-year home country requirement. The TN visa applies to Canadian and Mexican nationals who have job offers in certain occupations. Mexicans must first get LCA certification before applying for the TN visa.
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OTHER NONIMMIGRANT VISA CATEGORIES

The O visa is issued to people who have demonstrated extraordinary ability in artistic, scientific, business or athletic fields. A person with a J visa, subject to the two year home residency requirement, can apply for an O visa. The E visa is applicable to nationals of certain countries that have treaties with the US. It is issued to a person who makes a substantial investment in a US business or actively trades with the US.
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OVERVIEW OF LEGAL IMMIGRATION

FAMILY-BASED IMMIGRATION A US citizen or Green Card holder can sponsor his or her close family members for permanent residence. EMPLOYMENT-BASED IMMIGRATION A US employer can sponsor a foreign national employee for permanent residence.

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OVERVIEW OF LEGAL IMMIGRATION

REFUGEE OR POLITICAL ASYLUM A person outside the US can seek protection as a refugee or within the US through political asylum. S/he must prove a well founded fear of persecution on one of the following grounds: race, religion, nationality, membership in a social group or political opinion. DIVERSITY PROGRAM - The US issues 50,000 green cards through a lottery program every year. Nationals of countries with high immigration rates, such as India, are excluded.
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EMPLOYMENT-BASED IMMIGRATION
THE EMPLOYMENT PREFERENCE SYSTEM allows immigrants who have skills and talents in the US to be admitted to work. Currently, immigration law allots 140,000 employmentbased visas to immigrants, as follows: FIRST PREFERENCE. Priority Worker Categories such as people who have Extraordinary Ability, who are Outstanding Researchers or who are certain Multinational Executives or Managers.
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EMPLOYMENT-BASED IMMIGRATION (Cont.)

SECOND PREFERENCE. Green Cards are issued to members of the professions holding advanced degrees or aliens of exceptional ability. BS + 5 years can also qualify as advance degree. This category requires labor certification unless the individual can establish that he or she is going to work in the national interest of the US.

THIRD PREFERENCE. Green cards are issued to professionals (jobs requiring at least a bachelors degree), skilled workers (jobs requiring at least 2 years experience) or unskilled workers (jobs requiring less than 2 years of experience). The employer must file and obtain labor certification before filing an immigrant visa petition under these categories.

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EMPLOYMENT-BASED IMMIGRATION (Cont)

FOURTH PREFERENCE. Green Cards may be issued to certain special immigrants such as UN employees and ministers of religion, religious workers and others.

FIFTH PREFERENCE. Green Cards may be issued to persons who have invested between $500,000 to $3 million in a job-creating enterprise in the US. At least 10 workers must be employed by each investor. The amount of money can vary depending on the area of the country which will benefit from the investment.

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RETROGRESSION IN EB CATEGORY
EB -2 and EB-3 have generally been subject to retrogression since 2003. Those who have I-485s pending should also maintain H-1B status. If H-1B status not maintained, must meticulously extend EADs and Travel permits each year. Beneficiary cannot use both H-1B and EAD.
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AC21 BENEFITS DURING RETROGRESSION

H-1B can be extended beyond 6 years if: Labor Certification is filed 365 days before 6th year and remains pending, or Labor Certification and I-140 have been approved and there is EB Retrogression, then entitled to 3 years in H-1B status.

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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 of employment. The employer generally places advertisements for the job in a newspaper and also conducts other forms of recruitment, such as contacting headhunters or campus interviews. If the Department of Labor is satisfied of the unavailability, it grants labor certification, after which an employer can file applications with the DHS for the Green Card.

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NEW DEVELOPMENTS IN LABOR CERTIFCATION

DOL Backlog Elimination Centers have announced that they have processed all pre-PERM applications accept for appeals. PERM applications have to be carefully prepared and managed. Must manage timelines and datelines carefully. Perm must be filed within 180 days of the first recruitment step. Must have 30 day quiet period after each step, except one. DOL looking at applications with BS + 5 years very carefully. Must justify excessive requirements through business necessity.
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NEW DEVELOPMENTS IN LABOR CERTIFICATION

DOL has begun to audit a large number of PERMS. Very important to maintain an audit compliance file at time of filing, with detailed recruitment report and business necessity justification. DOL will also audit if sponsored employee has ownership stake in the business.
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Indian Immigration Requirements

Visas for Foreign Nationals Types of Visas B and E Visas Persons of Indian Origin Overseas Citizens of India Registration of Foreign Nationals in India

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Person of Indian Origin (PIO) card

Eligibility Person Who Can Establish Indian Origin For Up To Three Prior Generations - Spouse Of Indian National Or PIO Valid for 15 years Visa Free Travel

Restrictions on travel to specific or protected areas within India

Nationals Of Pakistan And Bangladesh And Not Eligible Exemption From FRRO Registration If Stay In India Does Not

Exceed 180 Days

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Overseas Citizenship of India (OCI) Card

Commonly Known As Dual Citizenship

Pakistani or Bangla Deshi Nationals (Present or In the Past are

Ineligible)

Applicants Country Should Not Restrict Dual Nationality Multiple Entry, Multi-purpose Life-long Permit To Visit India Exemption From FRRO Registration For Any Length Of Stay In India Parity With NRIs In Financial, Economic And Educational Fields Except In The Acquisition Of Agricultural Or Plantation Properties

Not Permitted To Hold Politically Elected Posts Or Exercise Political

Rights

No Travel Restrictions within India

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