US VISAS AND IMMIGRATION LAW, UPDATE ON INDIAN DUAL CITIZENSHIP AND CERTAIN INTERNATIONAL LAWS ON THE BPO INDUSTRY

Speaker Poorvi Chothani, Esq; LL.M. UPenn Correspondent Attorney to Cyrus D. Mehta and Associates PLLC
Date: December 27, 2005 [email protected] 98209 39666
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Visas and Immigration Law

Overview of US Immigration Law H-1B Visas New Visa Restrictions on L-1 Intra Company Transferees PERM Update on Indian Dual Citizenship

TRENDS IN IMMIGRATION POLICY

20,000 H-1Bs for students with advanced degrees. As of September 2005 approx. 200 remaining 10+ million undocumented immigrants. Reduction in backlogged immigration benefit applications; - $3.8 million in early 2004 to $1.2 million in June 2005

NONIMMIGRANT VISAS
issued to persons who wish to enter the US for a specific 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 foreign medical graduates - H-1B visa for persons who are employed by companies in the US for professional jobs.

NONIMMIGRANT VISAS
Every applicant is presumed to be an immigrant unless 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 of past travel, and realistic/credible plans of travel. H-1B allow for dual intent and do not require a showing of ties to the home country

H-1B VISA NUMBERS

U.S. masters degrees could run out by mid-January. Employers and Individuals who wish to file H-1Bs under the masters degree cap to do so quickly. On December 8, 2004, the US Congress created 20,000 new H-1B numbers that would be exempt from the 65,000 cap.

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 with advanced degrees. imposed a training fee of -$1,500 for companies with 25+ employees. -$750 for companies with 25 or less employees. Fee does not apply to certain entities or situations.
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NEW H-1B REFORM LAW contd

There will be a fraud fee for H-1Bs filed by new employers. Does not apply to extensions by same employer. Dependent H-1B displacement and recruitment attestations have been re-instituted. Employers to pay 100% of Prevailing Wage. New law mandates DOL to maintain a 4 levels precise prevailing wage system.

OTHER EXEMPTIONS TO 65,000 H1B CAP

H1B cap will not apply to: -H-1B extension requests with the same employer or from one employer to another. -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. -one who received H-1B in the past six years, and who is not eligible for another six years. -physician who has received state or federal agency sponsored J-1 waiver.

SUBSTANTIVE H-1B VISA LAW

H-1B visa:
- issued to individuals employed in specialty occupations.
- requires the minimum of a bachelors degree or foreign equivalent for entry into that occupation. - a work experience may substitute for a bachelors degree.

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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. Filing a Labor Condition Application with the Dept. of Labor is the first step in the H-1B visa process.
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H 2B VISAS
H-2B visa allows U.S employers to augment their existing labor force: <with temporary workers in industries with peak load, seasonal or intermittent. <when necessary due to a one-time occurrence, which necessitates a temporary increase in workers. U.S. Citizenship & Immigration Services began accepting additional petitions for H-2B workers as required by the Save Our Small and Seasonal Businesses Act of 2005. USCIS estimated that 62percent of approved

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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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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.
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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 now one year instead of six months.
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BACKGROUND TO THE L-1 VISA REFORM

The L visa program became controversial earlier in 2003 when there were allegations that it was being abused.
At issue was whether an L employee could be outsourced to a client company in the IT field.
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BACKGROUND TO L VISA REFORM

There were several proposals in the US Congress to restrict the L visa program.
Congress acted on December 8 and created new restrictions to the L-1B visa.

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NEW L-1 VISA REFORM LAW

The New Reform Law:
- restricts the L-1B visa, for specialized knowledge

workers; - prohibits placement of L-1B at Third Party site if employment not controlled by the petitioning employer; - increased L blanket overseas entity experience requirement from 6 months to one year; - creates Fraud Fee of $500 for all new L-1A and L-1B employer filings. - does not apply to L extensions. Is being placed at third party site to provide labor.
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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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FAMILY-BASED IMMIGRATION
IMMEDIATE RELATIVES are spouses of US citizens, unmarried children of US citizens and parents of US citizens. There is no quota. U.S citizens resident in Canada who wish to file I-130 petitions on behalf of their spouses, minor children or parents may now do so in person at the U.S. Embassy or U.S. Consulate in whose district they reside. The FAMILY PREFERENCE (OR QUOTA) SYSTEM allows into the US: Adult children and brothers and sisters of US citizens Spouses and unmarried children of Green Card holders.

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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 CERTIFICATION

DOL backlogs have become a big problem. NY, NJ and CA have been backlogged by several years. DOL initiated massive backlog reduction effort to process cases filed under traditional and RIR method. Traditional method means that application is filed and employer waits for DOL to supervise recruitment.
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NEW DEVELOPMENTS IN LABOR CERTIFICATION

Reduction in Recruitment means that employer does its own real world recruitment and decides whether it was a good faith recruitment or not. DOL will now introduce PERM. It is same as RIR except that it has become an honor system.

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NEW DEVELOPMENTS IN LABOR CERTIFICATION

An application with an earlier priority date may be processed or reach disposition later than newer applications, the Dept of Labor said. 2 applications with the same priority date, several factors account for different processing times, including the time of application, the stage of processing at which the application was received by the DOL backlog reduction center, the dates of other applications pending at each of the two centers, the quality of the application and whether any questions are raised by it and the response time of the employer to the centers requests for confirmation, the Dept said.

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PERM

The final Program Electronic Review Management (PERM) rule has been published after two and a half years. This procedure was established to streamline the labor certification application process for the permanent employment of aliens in the United States. DOL intends to create a faster and more consistent process for making alien labor certifications and to maintain controls to guard against potential guard.

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PERM FINAL RULES

replaces part of 20 C.F.R. Part 655 which deals with temporary employment of aliens in the U.S; all of 20 C.F.R Part 656 which deals with the labor certification process for permanent employment of aliens in the U.S. automates major aspects of the process and mandates detailed pre-filing recruitment, postrecruitment reporting and record retention. requires the employer to make ten attestations reaffirms the concept that the prevailing wage, while determined at the time of recruitment need

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CHANGES IN THE NEW SYSTEM

Filing:
Employers have the option of submitting the new form, the Application for Permanent Employment Certification, ETA Form 9089, electronically directly to a National Processing Center. Supporting documentation is not submitted with the application Employers file applications directly with the U.S Department of Labor and not with a State Workface Agency(SWA)
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CHANGES IN THE NEW SYSTEM

Refiling:
An employer may at any time; withdraw an application filed under the regulation in effect prior to March 28, 2005; refile under PERM; maintain the original filing date if the new application complies with the new regulation; application is identical to the original application and a job order has not been placed by the SWA for the 29 original application

CHANGES MADE IN THE NEW SYSTEM

Prevailing Wage:
Offered Wage must be equal to or greater than the prevailing wage. The wage must be at least 100% of the prevailing wage, the 5% deviation is no longer acceptable. Median will be used as the prevailing wage when an acceptable employer-provided survey provides a median and not an arithmetic mean. Validity period will vary from no less than 90 days to no greater than 1 year depending on the wage source used.

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CHANGES MADE IN THE NEW SYSTEM

Notice of Filing:
Must be posted in specific locations for ten consecutive business days rather than merely ten days.

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CHANGES MADE IN THE NEW SYSTEM

Recruitment:

Employer is required to conduct recruitment (more than 30 days and less than 180 days) prior to filing. Provisions are divided into professional and nonprofessional occupations, additional steps are required for professional occupations. Sunday edition newspaper advertisements are required. Job order obtained through SWA is required Special handling provision has been removed.
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CHANGES MADE IN THE NEW SYSTEM

Revocation:
Certifying officers have the authority to revoke approved labor certifications.

Adjudication :
Certifying will either certify or deny applications. Issuing a notice of Finding (NOF)
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Biometrics Update
A new Department of Homeland Security rule that requires visitors from Visa Waiver Program countries to carry passports with digital photos. - fines carriers that transport people to the U.S without the new passports up to $3,300 per violation DHS expects to unveil its plan early next year for upgrading the nations biometric visitor tracking. Dept of State w.e.f 25 October 2005 amended the passport regulations to incorporate changes related to the introduction of the electronic passport.

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Biometrics Update
Electronic passport : contains
an electronically readable device, an electronic chip encoded with the information printed on the data page, a biometric version of the bearers photograph, a unique chip number and a digital signature to protect the integrity of the stored information.
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BIOMETRICS UPDATE
The rule includes a damaged electronic chip as an additional basis for possible invalidation and provides for no-fee issuance of a replacement passport if an electronic chip fails. A pilot program will permit a limited number of passports to be issued and field-tested before the first issuance to the U.S. traveling public, slated for early 2006. By October 2006, all U.S. passports, with the exception of a small number of emergency passports issued by U.S. embassies or consulates, are expected to be electronic.

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OVERSEAS INDIAN CITIZENSHIP(OCI)

operational w.e.f from December 2, 2005 include eligible foreign nationals of Indian origin of all 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.

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Overseas Citizenship
Amendments:
The Citizenship Act 1955 (the Act) was recently amended to extend the scope of the OCI scheme to 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 and Registration of Foreigners Act, 1939 amended to help complete the changes needed to issue appropriate status and documentation.

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OVERSEAS INDIAN CITIZENSHIP

Eligibility
1. 2. 3. 4. 5. 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.

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OVERSEAS INDIAN CITIZENSHIP

Benefits
all that were available to Persons of Indian Origin (PIO), include a life long multi-entry, multi-purpose visa to visit or live in India. not required to register with any local police authority including the applicable Foreigners Regional Registration Officer or the Foreigners Registration Officer for any length of stay in India. only PIOs and foreigners intending to stay in India for more than 180 days are required to register. The Ministry of Overseas Indian Affairs under the Act may announce other benefits to OCIs in future.

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Impact of Certain Laws on the BPO Industry

EU Data Protection Directive Certain US Federal Laws Certain US State Laws and Pending Bills Suggested Best Practices

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EU Data Protection Directive

The EU Directive bars transfer of personal data from EU Countries to a country that have laws to ensure an adequate level of protection and requires that EU Countries ensure that their laws implementing the EU Directive are respected before the transfer. The EU Directive has been implemented in the United Kingdom as the Data Protection Act 1998. To facilitate compliance of the EU Directive the EC has approved a set of standard contractual clauses. Use of these standard contractual clauses in offshoring contracts, to countries with inadequate legal protection, offers a straightforward means of complying with their obligation to ensure adequate protection.

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EU Data Protection Directive

Such contractual measures are not necessary to transfer data to Switzerland, Canada, Argentina and the UK territories of Guernsey and the Isle of Man, all recognized by the EU as offering adequate data protection. Neither are they needed for transfers to US companies adhering to the Safe Harbor Privacy Principles.

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US Federal Laws
The Graham-Leach-Bliley Act 1999(GLBA) restricts the transmission of personal data to third parties and was enacted to ensure that financial institutions take meaningful measures to protect their customers' personal information The Sarbanes-Oxley (SOX) Act, adopted as a reaction to US corporate scandals, has a significant impact on US companies as well as auditing firms. When work is offshored, companies could face conflicting laws on audits and corporate governance and require reports to attest that outsourcing firms have internal controls in place to comply with SOX and other regulations.
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US Federal Laws
The Childrens Online Privacy Protection Act(COPPA) is designed to protect, among other things, against the eliciting of personal data from children by an operator of any website directed to children under thirteen years of age that collects personal information from children. The Health Insurance Portability and Accountability Act (HIPAA) mandates the establishment of privacy protections for health care information. HIPAA provisions apply to organizations that offer health plans, doctors, hospitals and other health care providers and in turn the Medical Transcription Industry and limits the way in which patient information may be used. This extends to the offshored activity of the organizations

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US Federal Laws
The Federal Credit Reporting Act limits access to credit histories and other personal information. The Fair and Accurate Credit Transactions Act of 2003 requires the proper disposal of consumer information or compilation by any person that maintains or otherwise possesses or compiles consumer information. The Telephone Consumer Protection Act, (TCPA)restricts the use of the telephone and facsimile machine to deliver unsolicited advertisements.
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US State Laws or Pending Bills

US states, have enacted several laws to regulate privacy and personal data, impose obligations on call center activities and to minimize or ban offshoring of state contracts; some of these in the hope of protecting 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. 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 restrict performance of state contracts outside the US.

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US State Laws or Pending Bills

North Carolina and Washington have bills that require all contractors to disclose where work on the state contracts will be performed, which can figure into the evaluation of the bid. Oregon, Minnesota, and Massachusetts have bills that require call center operators to disclose their location. A Texas bill prohibits the employment of foreign workers on state contracts. Iowa has a bill that provides for preference for call centers contracts to be performed with US citizens or others authorized to work in the US.

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US State Laws or Pending Bills

Iowa has a bill that provides for preference for call centers contracts to be performed with US citizens or others authorized to work in the US. Some of these state bills apply to state contracts and not contracts between private entities. There may be executive measures and regulations that apply to privacy issues to outsourced work that does not deal with private information.
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Suggested Best Practices for Working Managers and Chief Executives

Commitment of senior management staff to implement security and compliance measures Retaining an attorney who is familiar with the legal provisions 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 by NASSCOM) 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 to Enhance Security with recorded Standard Operating Procedures Manuals
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Suggested Best Practices for Working Managers and Chief Executives

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 mitigate damage Customer should be responsible for informing the OSP about any changes in applicable laws or compliance requirements Establishment of an Independent Governing Body to regulate the industry 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

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