US Visas And Immigration Law, 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 poorvi@cyrusmehta.com 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.
About 2000 of these were still available in September 2005

11+ million undocumented immigrants.

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. -L-1 Visas for intracompany transferees

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 and L-1 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 soon if not already. No up to date information available. 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. 7

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 as opposed to 95% previously. New law mandates DOL to maintain a 4 levels precise prevailing wage system.

OTHER EXEMPTIONS TO 65,000 H-1B 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. -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. - 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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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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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. 13

H-2B Numbers
As of December 2005 for the Fiscal year 2006 27,937 approved and 7,631 pending; 35,568 cases counted against the halfyear cap Cap of 33,000 half-year cap USCIS will cut off at 52,000 (anticipates 62 percent approved beneficiaries will obtain visas)
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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 entity 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 the immediately preceding three years 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

Several proposals in the US Congress to restrict the L visa program resulted in a new law being enacted in December 2004.
Created new restrictions to the L1B visa.
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NEW L-1 VISA REFORM LAW

The New Reform Law: -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 L1A and L-1B employer filings. -does not apply to L extensions.
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Strict scrutiny to check if transferee is

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 IMMIGRATIONA 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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PERM
An employer may at any time;
Withdraw an application filed under the regulations in effect prior to March 28, 2005. May Refile under PERM provided criteria is met Provided certain criteria are met
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PERM

The final Program Electronic Review Management (PERM) published after two and a half years. PERM to streamline the labor certification application process for the permanent employment of aliens in the United States. DOL introduced speedy and consistent process for alien labor certifications and to maintain controls.

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PERM Steps
Obtain Prevailing Wage Determination (PED) from State Workforce Agency (SWA) Post Internal Job Notice for 10 consecutive business days Job Notice to be posted on employers standard electronic and printed methods Place job order with SWA Two Sunday Newspaper Advertisements
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PERM Steps
Three Additional steps for recruitment Employer must prepare report of recruitment efforts and of the resumes received pursuant to recruitment efforts Must prepare audit file If no US worker available file Form ETA 9089 electronically DOL will certify if file not selected for audit
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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 the wage source used.
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PERM - Recruitment
Recruitment (more than 30 days and less than 180 days) prior to filing. Additional steps are required for professional occupations.

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USCIS - Petition
After PERM application is certified Petition to be filed with documents to establish that recruitment requirements were fulfilled Adjustment of Status, EAD card (authorizing work) and advance parole (travel documents) may be filed concurrently

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CHANGES MADE IN THE NEW SYSTEM

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

Adjudication :
Either certify or deny applications. Notice of Finding has been eliminated.

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Biometrics Update
Individuals under Visa Waiver Program must have passports with digital photographs Carriers liable to penalty of US$ 3,300 if they bring individuals without appropriate passport DHS to upgrade the nations biometric visitor tracking system. May require 10 fingerprints as opposed
to two

Dept of State US passport regulations to incorporate changes related to the introduction of the electronic passport. 32

Overseas Citizenship of India (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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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 and Registration of Foreigners Act, 1939 also amended.34

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. 35

Benefits of OCI
Life 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
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Impact of Certain Laws on the BPO Industry

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Topics
EU Data Protection Directive Certain US Federal Laws Certain US State Laws and Pending Bills Suggested Best Practices
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The EC Data Protection Directive (EU Directive)

Recognizes privacy as a right Data protection principles - limit the processing and transfer of personal information, including transfer of the data to countries outside the EU

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EU Directive Contd.
Each EC Member State has to enact laws in keeping with the EU Directive For e.g. the EU Directive implemented by the United Kingdom Data Protection Act 1998. Approved set of standard contractual clauses EU Directive applies to the processing of personal data
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EU Directive Contd.
Restricts the transfer of personal data outside the EU Countries unless the other country ensures 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 requirements permitted European Court recent holding mere access from non-EU country does not constitute transfer.
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Some Options for Transfer under the EU Directive

Adopt Standard Contract Clauses Unambiguous Consent to transfer from affected individuals Negotiated Protections acceptable in the UK Codes of Conduct Direct Compliance/registration with EU Authority Some EU countries require that a copy of the executed agreement with the standard clauses be deposited with the regulatory authority this is not the case in the UK. Adopt Safe Harbor
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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, 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.
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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, restricts the use of the telephone and facsimile machine to deliver unsolicited 45 advertisements.

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.
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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 affect 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.

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US State Laws or Pending Bills

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. 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

Connecticut bill: Would require companies with a net job loss of one hundred or more to
Submit to the states Development of Economic and Community Development A statement including the number of jobs the company cut Would also allow a citizen who believes he has lost his job as a result of outsourcing to report the loss to the state for recordkeeping purposes.
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US State Laws or Pending Bills

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 of 2003 - 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 may apply to privacy issues to outsourced work that does not deal with private information.
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Suggested Best Practices for The BPO Industry

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Best Practices for Management

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 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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Thank You
Poorvi Chothani, Esq. LawQuest 36, Maker Tower F Cuffe Parade Mumbai 400 005 E-mail poorvi@lawquestindia.com Telephone 00 91 22 5654 1671
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