Immigration Updates and BPO's - Dec 2005

7/28/2019 Immigration Updates and BPO's - Dec 2005

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US VISAS AND IMMIGRATION LAW,UPDATE ON INDIAN DUAL CITIZENSHIP

AND

CERTAIN INTERNATIONAL LAWS ON THEBPO INDUSTRY

Speaker

Poorvi Chothani, Esq; LL.M. UPenn

Correspondent Attorney to Cyrus D. Mehta and AssociatesPLLC

Date: December 27, 2005

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


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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


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TRENDS IN IMMIGRATION POLICY

20,000 H-1Bs for students with advanced degrees. As ofSeptember 2005 approx. 200 remaining

10+ million undocumented immigrants.

Reduction in backlogged immigration benefit

applications;

- $3.8 million in early 2004 to $1.2 million inJune 2005


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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.


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NONIMMIGRANT VISAS

Every applicant is presumed to be an immigrant unlesshe 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 showingof ties to the home country


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H-1B VISA NUMBERS

U.S. mastersdegrees could run out by mid-January.

Employers and Individuals who wish to file H-1Bs underthe 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 the65,000 cap.


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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 havegraduated from US institutions with advanceddegrees.

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 orsituations.


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NEW H-1B REFORM LAW contd

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

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 preciseprevailing wage system.


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OTHER EXEMPTIONS TO 65,000 H-1B CAP

H1B cap will not apply to:

-H-1B extension requests with the same employer orfrom one employer to another.

-if the sponsor is an institution of higher education or

an affiliate entity, or if the sponsor is a non-profitresearch organization or governmental researchorganization.

-one who received H-1B in the past six years, andwho is not eligible for another six years.

-physician who has received state or federal agencysponsored J-1 waiver.


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SUBSTANTIVE H-1B VISA LAW

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

occupations.

- requires the minimum of a bachelors degree orforeign equivalent for entry into that occupation.

- a work experience may substitute for a bachelorsdegree.


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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 Application withthe Dept. of Labor is the first step in theH-1B visa process.


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H 2B VISAS

H-2B visa allows U.S employers to augment their

existing labor force:


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PROCESSING TIME FOR H-1BPETITION

Processing time is 60-90 days.It couldbe speeded up through premiumprocessing by employer paying a fee of

$1,000. H-1B visa status confers portability to

the next job, ie. one can commenceworking for another employer when the

new employer files the H-1B petition.There is no need to wait for theapproval.


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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, executivesor employees with specialized

knowledge can be transferred fromthe foreign to the US entity.


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THE L-1 VISA

The transferee must have beenemployed in the foreign entity for atleast one year as an executive,manager, or in a specializedknowledge capacity.

In Blanket L cases, the prior

experience is now one year instead ofsix months.


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BACKGROUND TO THE L-1 VISAREFORM

The L visa program becamecontroversial earlier in 2003 whenthere were allegations that it wasbeing abused.

At issue was whether an L employee

could be outsourced to a clientcompany in the IT field.


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BACKGROUND TO L VISA REFORM

There were several proposals in theUS Congress to restrict the L visaprogram.

Congress acted on December 8 andcreated 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 knowledgeworkers;

- prohibits placement of L-1B at Third Party site ifemployment not controlled by the petitioningemployer;

- increased L blanket overseas entity experiencerequirement 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.

OVERVIEW OF LEGAL


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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.


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OVERVIEW OF LEGALIMMIGRATION

REFUGEE OR POLITICAL ASYLUM A personoutside the US can seek protection as arefugee or within the US through politicalasylum. S/he must prove a well founded fear

of persecution on one of the following grounds:race, religion, nationality, membership in asocial group or political opinion.

DIVERSITY PROGRAM - The US issues 50,000

green cards through a lottery program everyyear. Nationals of countries with highimmigration 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 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.


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LABOR CERTIFICATION

Labor Certification is generally the first step towardthe Green Card when an employer sponsors a USworker.

The US employer establishes that it hasunsuccessfully 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 ofrecruitment, such as contacting headhunters orcampus interviews.

If the Department of Labor is satisfied of theunavailability, it grants labor certification, after whichan employer can file applications with the DHS for theGreen Card.


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NEW DEVELOPMENTS IN LABORCERTIFICATION

DOL backlogs have become a bigproblem. NY, NJ and CA have beenbacklogged by several years.

DOL initiated massive backlogreduction effort to process cases filedunder traditional and RIR method.

Traditional method means thatapplication is filed and employer waitsfor DOL to supervise recruitment.


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Reduction in Recruitment means thatemployer does its own real worldrecruitment and decides whether itwas a good faith recruitment or not.

DOL will now introduce PERM. It issame as RIR except that it has

become an honor system.


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An application with an earlier priority date may be

processed or reach disposition later than newerapplications, the Dept of Labor said.

2 applications with the same priority date, severalfactors account for different processing times,including the time of application, the stage of

processing at which the application was received bythe DOL backlog reduction center, the dates of otherapplications pending at each of the two centers, thequality of the application and whether any questionsare raised by it and the response time of the

employer to the centers requests for confirmation,the De t said.


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PERM

The final Program Electronic Review Management(PERM) rule has been published after two and a halfyears.

This procedure was established to streamline thelabor certification application process for thepermanent employment of aliens in the UnitedStates.

DOL intends to create a faster and more consistent

process for making alien labor certifications and tomaintain 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 andmandates detailed pre-filing recruitment, post-

recruitment 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 newform, the Application for Permanent EmploymentCertification, ETA Form 9089, electronically directlyto a National Processing Center.

Supporting documentation is not submitted withthe application

Employers file applications directly with the U.SDepartment of Labor and not with a State WorkfaceAgency(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

original application


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CHANGES MADE IN THE NEWSYSTEM

Prevailing Wage: Offered Wage must be equal to or greater thanthe prevailing wage.

The wage must be at least 100% of the prevailingwage, the 5% deviation is no longer acceptable.

Median will be used as the prevailing wage whenan acceptable employer-provided survey provides a

median and not an arithmetic mean.

Validity period will vary from no less than 90 daysto no greater than 1 year depending on the wage

source used.


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Notice of Filing:

Must be posted in specific locations

for ten consecutive business days

rather than merely ten days.


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Recruitment:

Employer is required to conduct recruitment (morethan 30 days and less than 180 days) prior to filing.

Provisions are divided into professional andnonprofessional 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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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 thatrequires visitors from Visa Waiver Program

countries to carry passports with digital photos.

- fines carriers that transport people to theU.S without the new passports up to $3,300 perviolation

DHS expects to unveil its plan early next year forupgrading the nations biometric visitor tracking.

Dept of State w.e.f 25 October 2005 amended thepassport regulations to incorporate changes relatedto 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 providesfor no-fee issuance of a replacement passport if anelectronic chip fails.

A pilot program will permit a limited number ofpassports to be issued and field-tested before the

first issuance to the U.S. traveling public, slated forearly 2006.

By October 2006, all U.S. passports, with theexception of a small number of emergency passportsissued by U.S. embassies or consulates, are

expected to be electronic.


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OVERSEAS INDIANCITIZENSHIP(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 Indiancitizenship 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/


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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) inAugust 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 INDIANCITIZENSHIP

Eligibility1. A foreign national, who was eligible to become acitizen of India on January 26, 1950; or

2. Was a citizen of India on or at anytime afterJanuary 26, 1950; or

3. Belonged to a territory that became part of Indiaafter August 8, 1947; or

4. Child or grand child of person mentioned in 1 to3; or

5. Minor children of such persons mentioned above.


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OVERSEAS INDIANCITIZENSHIP

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 RegistrationOfficer 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 mayannounce other benefits to OCIs in future.


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Impact of Certain Laws onthe BPO Industry

EU Data ProtectionDirective

Certain US Federal LawsCertain US State Laws andPending Bills

Suggested Best Practices


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EU Data Protection Directive

The EU Directive bars transfer of personal data from EUCountries to a country that have laws to ensure anadequate level of protection and requires that EUCountries ensure that their laws implementing the EUDirective are respected before the transfer.

The EU Directive has been implemented in the UnitedKingdom as the Data Protection Act 1998.

To facilitate compliance of the EU Directive the EC hasapproved 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 necessaryto transfer data to Switzerland, Canada,Argentina and the UK territories of Guernseyand the Isle of Man, all recognized by the EUas offering adequate data protection. Neitherare they needed for transfers to US companiesadhering 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 thirdparties and was enacted to ensure that financialinstitutions take meaningful measures to protect

their customers' personal information

The Sarbanes-Oxley (SOX) Act, adopted as areaction to US corporate scandals, has a significantimpact on US companies as well as auditing firms.When work is offshored, companies could face

conflicting laws on audits and corporate governanceand require reports to attest that outsourcing firmshave internal controls in place to comply with SOXand other regulations.


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US Federal Laws

The Childrens Online Privacy Protection Act(COPPA) isdesigned to protect, among other things, against the elicitingof personal data from children by an operator of any website

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

The Health Insurance Portability and Accountability Act(HIPAA) mandates the establishment of privacy protectionsfor health care information. HIPAA provisions apply toorganizations that offer health plans, doctors, hospitals andother health care providers and in turn the MedicalTranscription Industry and limits the way in which patientinformation may be used. This extends to the offshored activityof the organizations
http://www.bambooweb.com/articles/h/o/Hospital.htmlhttp://www.bambooweb.com/articles/h/e/Health_care.htmlhttp://www.bambooweb.com/articles/h/e/Health_care.htmlhttp://www.bambooweb.com/articles/h/e/Health_care.htmlhttp://www.bambooweb.com/articles/h/e/Health_care.htmlhttp://www.bambooweb.com/articles/h/o/Hospital.html


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US Federal Laws

The Federal Credit Reporting Act limitsaccess to credit histories and other personalinformation.

The Fair and Accurate Credit Transactions

Act of 2003 requires the proper disposal ofconsumer information or compilation by anyperson that maintains or otherwise possessesor compiles consumer information.

The Telephone Consumer Protection Act,(TCPA)restricts the use of the telephone andfacsimile machine to deliver unsolicitedadvertisements.


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US State Laws or Pending Bills

US states, have enacted several laws to regulate privacy andpersonal data, impose obligations on call center activities andto minimize or ban offshoring of state contracts; some of thesein the hope of protecting US workforce.

Many of the bills may fail, be significantly diluted or bechallenged on grounds of constitutionality or found to violate

international trade agreements.

New York, Massachusetts, Texas, West Virginia, Oregon,Pennsylvania, Florida, Maryland, Missouri and Nevada havebills that curtail the granting of state contracts to non-USworkers or restrict performance of state contracts outside theUS.


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North Carolina and Washington have bills that require allcontractors to disclose where work on the state contractswill be performed, which can figure into the evaluation ofthe bid.

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

A Texas bill prohibits the employment of foreign workerson state contracts.

Iowa has a bill that provides for preference for callcenters contracts to be performed with US citizens orothers authorized to work in the US.


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Iowa has a bill that provides for preference forcall centers contracts to be performed with UScitizens or others authorized to work in the US.

Some of these state bills apply to statecontracts and not contracts between privateentities.

There may be executive measures and

regulations that apply to privacy issues tooutsourced work that does not deal withprivate information.


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Suggested Best Practices for WorkingManagers and Chief Executives

Commitment of senior management staff to implementsecurity and compliance measures

Retaining an attorney who is familiar with the legal provisionsof 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 differentprocesses

Standard Written Internal Company Practices to EnhanceSecurity with recorded Standard Operating Procedures Manuals


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Suggested Best Practices for WorkingManagers 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 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, timelinessand quantity of services

Immigration Updates and BPO's - Dec 2005

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