Category Archive Immigration Law Guide

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H-1B cap reached : How USCIS will select H-1B petitions for the FY 2017

On April 7, 2016, U.S. Citizenship and Immigration Services (USCIS) announced that it has reached the congressionally mandated H-1B cap for fiscal year (FY) 2017. USCIS also received more than the limit of 20,000 H-1B petitions filed under the U.S. advanced degree exemption. USCIS will now use a computer-generated process, also known as the lottery (technically referred to as a “Random Selection Process”), to randomly select the petitions needed to meet the caps of 65,000 visas for the general category and 20,000 for the advanced degree exemption.

USCIS will first randomly select petitions for the advanced degree exemption. All unselected advanced degree petitions will become part of the random selection process for the 65,000 general cap. The agency will reject and return filing fees for all unselected cap-subject petitions that are not duplicate filings.

Before running the lottery, USCIS will complete initial intake for all filings received during the filing period, which ended April 7. Due to the high number of petitions, USCIS is not yet able to announce the date it will conduct the random selection process. Listed below are the steps how the random selection process for the FY 2017 will be conducted.

Step 1: USCIS will receive H-1B petitions and label each of the petition with a unique identifier. This is the number or character that would be used for the random selection process. Once the H-1B is labeled, the USCIS will group the overall petitions into two pools. One pool will be the U.S. Master’s Degree quota and the other pool will be the equivalency of a U.S. Bachelor’s Degree.

Step 2: If there are more than 20,000 petitions received in the U.S. Master’s Degree quota, then USCIS will conduct a computer generated random selection process or lottery taking into account all of the H-1B U.S. Master’s Degree petitions.

Step 3: All of the H-1B petitions filed under U.S. Master’s Degree quota that were NOT selected in the lottery or random selection will be placed into the pool of petitions received as U.S. Bachelor’s equivalency quota H-1B visa petitions.

Step 4: If the total number of petitions in the combined pool (consisting of the U.S. Master’s Degree spillover and the U.S. Bachelor’s Equivalency pool) are over 65,000 petitions (number to be adjusted for Singapore and Chile H-1B1 Free Trade Agreement Visas), which is the cap limit, then a computer generated random selection process or lottery will be conducted on the pool to identify petitions that qualify for consideration under the U.S. Bachelor’s equivalency quota cap limit.

Step 5: USCIS will send the list of all selected petitions to the service centers. The USCIS service center(s) will proceed with H-1B nonimmigrant visa processing.

Step 6: All the H-1B nonimmigrant visa petitions that were not selected in the random selection process or lottery will be returned to the employers or the legal representatives along with the fees.

Step 7: USCIS will inform all selected petition holders of their case number for tracking purposes during processing. If the case is being premium processed, a receipt notice should issue within a week or two. If the case is not being premium processed, it could take many weeks and sometimes months for the employer to get a receipt notice.

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Exploring non-immigrant visa options post FY 2017 H-1B cap closure

On April 7, 2016, U.S. Citizenship and Immigration Services (USCIS) announced that it has reached the congressionally mandated H-1B cap for fiscal year (FY) 2017. USCIS also received more than the limit of 20,000 H-1B petitions filed under the U.S. advanced degree exemption. USCIS will now use a computer-generated process, also known as the lottery (technically referred to as a “Random Selection Process”), to randomly select the petitions needed to meet the caps of 65,000 visas for the general category and 20,000 for the advanced degree exemption.

With the uncertainty of getting randomly selected in the H-1B lottery, it is time that H-1B visa hopefuls (and their prospective H-1B employers) should start exploring other nonimmigrant work visa options to allow them to work and live in the United States on a temporary basis.

This article endeavors to discuss some of the possible nonimmigrant work visa options that may be available to prospective H-1B visa beneficiaries who may not get selected in the H-1B visa lottery this fiscal year.
 

DO NOT LOSE HOPE: CONSIDER THE H-1B “CAP-EXEMPT” VISA OPTION.
 

Sections 214(g)(5)(A) and (B) of the Immigration and Nationality Act (INA) exempt a foreign national from the H-1B cap if the alien is “employed (or has received an offer of employment) at” an institution of higher education, a related or affiliated nonprofit entity, a nonprofit research organization, or a governmental research organization(hereinafter a “qualifying institution”).

Commonly, qualifying institutions can petition on behalf of current or prospective H-1B employees and claim this exemption. In certain instances, petitioners that are not themselves a qualifying institution also claim this exemption because the alien beneficiary will perform all or a portion of the job duties “at” a qualifying institution. Such petitioners are referred to as “third party petitioners.” A third party petitioner is one who petitions on behalf of an H-1B worker who will work “at” a qualifying institution, but where the alien is or will be employed by the third party petitioner, not the qualifying institution.

Thus, to be classified as cap-exempt, it not mandatory that a prospective H-1B employee should be employed by the institution of higher education (or related or affiliated nonprofit entities), or nonprofit/governmental research organization. A prospective H-1B employee, employed by any employer, who will perform the majority of his/her work at the qualifying institutions, could qualify for the cap-exempt H-1B visa provided the work performed should “predominantly further” the “normal, primary, or essential purpose” of the qualifying institution.
 

L-1A AND L-1B VISAS FOR INTRACOMPANY TRANSFEREES OF MULTINATIONAL COMPANIES.
 

L-1 nonimmigrant visa status may be accorded to an alien who, within three (3) years preceding his application for admission into the United States, was employed abroad continuously for one year by a parent, branch, affiliate, or subsidiary of the U.S. petitioning company.

Thus, employees employed by companies with an offshore presence can explore the possibility of using the L-1 nonimmigrant visa option. The L-1 visa program was designed to facilitate the temporary transfer of foreign nationals with executive, managerial, and specialized knowledge skills to the United States. Spherically, there are two types of L-1 nonimmigrant visa: (1) L-1A for executives and managers; and (2) L-1B for employees with specialized knowledge. The L-1A classification also enables a foreign company which does not yet have an affiliated U.S. office to send an executive or manager to the United States with the purpose of establishing one. This sub-category of L-1A is referred to as “New Company L-1A visa.”
 

O-1 VISA FOR FOREIGN NATIONALS WITH EXTRAORDINARY ABILITY OR ACHIEVEMENT IN “ANY” FIELD OF ENDEAVOR.
 

The O-1 nonimmigrant visa is for the individual who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements. Like the L-1 visas, O-1 visas are not subject an annual cap.

There are, thus, two types of O-1 visas. O-1A is for foreign nationals having “extraordinary ability” in the field of the arts, sciences, education, business or athletics. If in motion picture or TV production or an artist, the person may qualify for O-1B visa provided she/he has demonstrated a record of “extraordinary achievement.” Sometimes, for artists, all that is required is a showing of “distinction”. Thus, there are different standards under the O-1 visa. Note that O-1 visas are not limited to the above-mentioned categories. USCIS interprets the statute to encompass “any field of endeavor” including craftsmen and lecturers.
 

CONSIDER OTHER PROFESSIONAL AND SPECIALTY OCCUPATION WORK VISA CLASSIFICATIONS: TN, H-1B1 AND E-3 VISAS.
 

There are three nonimmigrant visa categories which are very similar to the H-1B visas designed primarily for temporary professional workers from specific countries. These visas are based upon specific trade agreements that foreign nations have signed with the United States.

Specifically, the ‘H-1B1′ visa program is designed specifically for the Nationals of Chile and Singapore. The H1B1 category was created by the Free Trade Agreements signed with Chile and Singapore in 2003. Up to 6,800 visas (1,400 visas for the nationals of Chile, and 5,400 visas for the nationals of Singapore) are set aside from the H-1B cap of 65,000 during each fiscal year for the H-1B1 program.

Additionally, the Canadian and Mexican temporary professional workers may explore the potential option of obtaining TN classification. The TN nonimmigrant classification permits qualified Canadian and Mexican citizens to seek temporary entry into the United States to engage in business activities at a professional level.

Further, nationals of the Commonwealth of Australia may qualify for E-3 temporary work visas. Like the H-1B1, E-3 visas are subject to an annual cap of 10,500 per Fiscal Year.

Occupationally, H-1B1, TN and E-3 mirror the H-1B visa in that the foreign worker must be employed in a specialty occupation (defined loosely as “professional”). While both the H-1B1 and E-3 require Labor Condition Applications (LCA) from the Department of Labor (DOL), the TN visa does not require the employer to obtain an LCA. However, unlike the H-1B visa, which is a “dual intent” visa, none of the above-mentioned categories are “dual intent”.
 

E-1 TREATY-TRADER AND THE E-2 TREATY INVESTOR VISAS.
 

A foreign national may qualify for an E visa depending upon what country he/she is from. There are certain countries in the world that have a specific type of treaty or agreement with the U.S. The most common of these agreements or treaties is referred to as a Bilateral Investment Treaty (BIT), a Free Trade Agreement (FTA), or a Treaty of Friendship, Commerce and Navigation (FCN) with the United States.

There are two types of E visas: Treaty Trader visa (E-1) and Treaty Investor visa (E-2). Though nationals of a foreign country having FTA with the United States may qualify for both an E-1 and E-2 visa, BIT allows only for an E-2 visa.

For an E-1 visa, a foreign national entering the United States is required to carry on substantial trade that is international in scope, and principally between U.S. and the foreign country. The E-2 visa, on the other hand, requires the foreign national to develop and direct the operations of an enterprise in which the foreign national has invested, or is actively in the process of investing, a substantial amount of capital.

The enterprise must be a bona fide enterprise. Further, a “key employee”, including the executives and supervisors, or persons whose services are “essential to the efficient operation of the enterprise” may qualify for an E-1/E-2 visa depending upon the bilateral agreement between the foreign country and the United States.
 

OPTIONS FOR INTERNATIONAL STUDENTS.
 

If not selected for H-1B cap, F-1 students in Science, Technology, Engineering, and Mathematics (STEM) fields, who have elected to pursue 12 months of OPT in the United States, can extend the OPT period by 24 months (STEM OPT extension). To obtain the extension, the student should be employed by an employer who is duly enrolled in the E-Verify Program, and should have received an initial grant of post-completion OPT related to such a degree.

Students who do not hold STEM degrees may choose the option of going back to school. For instance, a student who has completed a bachelor’s degree from a U.S. institution may exercise the option of enrolling in another bachelor’s or master’s degree program. The option of enrolling in a master’s degree program should be exercised with caution because holding a master’s degree from a “for profit” institution of higher education will not qualify the foreign national for the H-1B master’s cap.
 

CONCLUSION
 

Based on the foregoing discussion, it is safe to conclude that before departing the United States or giving-up on the hopes of staying and working in the United States, prospective H-1B visa beneficiaries should carefully explore each and every alternative work visa option that may be available to them.

Bydeb

Hike in filing fee by USCIS, new fee for the EB-5 investor visa program

The situation in the US is pretty grim. The policy decisions and recent hikes in the statutory fees for certain H-1B and L-1 petitions are to be blamed. But apart from that various other immigration complications alsso weigh in. Like, the lengthy delays in adjudicating petitions. But Department of Homeland Security (DHS) has now created a new problem.

Putting into practice the “Full Cost Recovery” theory, DHS is proposing to raise USCIS filing fees by a weighted average of 21 percent and impose a new fee on the Regional Centers with regard to EB-5 processing in order to fully recover costs for its services and to maintain adequate service. The proposed rule has been published in the Federal Register and is open for public comments until July 5, 2016.
The funding of the U.S Citizensip and Immigration Services are known to many. U.S. Citizenship and Immigration Services (USCIS) is primarily funded by immigration and naturalization benefit request fees charged to applicants and petitioners. Fees collected from individuals and entities filing immigration benefit requests are deposited into the Immigration Examinations Fee Account (IEFA) and used to fund the cost of processing immigration benefit requests.

USCIS calculates its fees to recover the full cost of USCIS operations, which do not include the limited appropriated funds provided by Congress. USCIS anticipates if it continues to operate at current fee levels, they will experience an acute shortage of $560 million between revenues and costs. This projected shortfall poses a risk of being detrimental for USCIS operations. The proposed rule would eliminate this risk by ensuring full cost recovery. As such, DHS is proposing to adjust fees by a weighted average increase of 21 percent (%).
Proposed rule has certain points which are very critical. Let us take a look at some of them.


EB-5 (IMMIGRANT INVESTOR) VISAS: (FORM I-924A) NEW FEE FOR THE ANNUAL CERTIFICATION OF REGIONAL CENTER.

In order to recover the full cost of processing, DHS is proposing to establish a new fee which mounts to about $3,035.00 for the Annual Certification of Regional Center, Form I-924A, pertaining to the EB-5 Regional Center investor visa program benefit. As many are aware, Form I-924A is used by Regional Centers to demonstrate continued eligibility for their designation. Although approved regional centers are required to file the Form I- 924A annually, there is currently no filing fee and the processing cost is borne by other individuals paying fees for immigration benefits. Until now USCIS was using its adjudicative resources to handle Form I-924A without charging any fee for approximately eight hundred currently approved Regional Centers. This USCIS’ annual subsidy provided to the EB-5 Regional Center is soon going to end. Note that the rule also proposes to change the title of Form I-924A from “Supplement to Form I-924” to “Annual Certification of Regional Centers.”
Further, the proposed fee for processing the Form I-526, Immigrant Petition by Alien Entrepreneur, will increase by 145 % to $3,675 (from the current fee of $1,500.00). Amongst all the bad news, there is some respite. The fee for processing Form I-829, Petition by Entrepreneur to Remove Conditions, is going to remain the same at level of $3,750.00. 



(N-400) TRI-LEVEL STRUCTURE FOR THE APPLICATION FOR NATURALIZATION

DHS is proposing to establish a three-level fee for the Application for Naturalization, Form N-400. At the first level, DHS would increase the standard fee for Form N-400 from $595 to $640. Second level, DHS would continue to charge no fee to an applicant who meets the requirements of sections 328 or 329 of the Immigration and Nationality Act of 1952 (INA) with respect to military service and applicants with approved fee waivers. At the last level, DHS would charge a reduced fee of $320 for naturalization applicants with family income greater than 150 percent and not more than 200 percent of the Federal Poverty Guidelines. It is proposing this change to increase access to United States citizenship.

USCIS NOT TO BEGIN PROCESSING THE REQUESTED IMMIGRATION BENEFIT UNTIL THE FILING FEE AND/OR BIOMETRICS FEE PAYMENT GETS CLEARED

Current regulations provide that when a check or other financial instrument used to pay a filing fee is subsequently returned as not payable, the remitter is notified and requested to pay the filing fee and associated service charge within 14 calendar days, without extension. Moreover, if a benefit request is received by DHS without the correct biometric service fee, DHS notifies the applicant of the deficiency and takes no further action until payment is received. According to these provisions, when a payment is returned as non-payable, USCIS places the immigration benefit request on hold and suspends adjudication. If a check is dishonored or payment otherwise fails, USCIS assesses a $30.00 charge and pursues the unpaid fee and penalty using administrative debt collection procedures. If the biometrics services fee was required and is missing, USCIS generally provides the individual 30 days to correct the payment. If payment is made within the allotted time, USCIS resumes processing the benefit request. If the filer does not correct the payment, USCIS does not acknowledge the filing. If the biometric fee is not paid, USCIS considers the benefit request as abandoned. DHS is aiming at eliminating the above-mentioned rules requiring that cases be held while deficient payments are corrected.
USCIS clears payment checks through the Automated Clearing House (ACH) by converting checks to electronic payments. Because of the fact that USCIS converts checks into ACH payments, there is currently no or very little delay before USCIS knows whether the check is valueless. DHS is proposing that USCIS will not begin processing the benefit request until the payment has cleared. DHS anticipates that the proposed change would reduce the USCIS administrative costs for holding and tracking immigration benefit requests with rejected payments. This change would quicken USCIS’ process for handling immigration benefit requests when payments are returned as not payable or do not include the required biometric services fee.

HOLDING THE BIOMETRIC SERVICES FEE FIXED AT ITS CURRENT LEVEL

Though the model used by the DHS suggested a reduced Biometrics fee of $75.00, it is proposing to hold the Biometrics service fee at its current level of $85.00. DHS believes that the importance of and uncertainty in the Biometric services area justifies holding that fee at $85.00.
 

REFUNDS

DHS is proposing a minor change in the provision regarding USCIS fee refunds. In general, except for a premium processing fee, USCIS does not refund a fee regardless of the decision on the immigration benefit request. Going forward, USCIS will refund a fee if the agency determines that an administrative error occurred resulting in the incorrect collection of a fee. Examples of USCIS errors include:

  • Unnecessary filings: Cases in which USCIS (or DOS in the case of an immigration benefit request filed overseas) erroneously requests that an individual file an unnecessary form along with the associated fee; and
  • Accidental payments: Cases in which an individual pays a required fee more than once or otherwise pays a fee in excess of the amount due and USCIS (or the DOS in the case of an immigration benefit request filed overseas) erroneously accepts the erroneous fee.

A copy of the proposed rule, and more detailed information regarding the proposed fee changes can be looked up at:https://www.federalregister.gov/articles/2016/05/04/2016-10297/us-citizenship-and-immigration-services-fee-schedule

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Reasons for which your passport application may be rejected

If you want to travel outside, you will need your passport. Getting your passport requires lot of paperwork. Although the process of applying for passport has become a lot easier, you must know about the common reasons why a passport application is usually rejected. This will help you to avoid making potential mistakes that lead to denial.

Missing Documents

One of the most common reason for a passport being denied is not submitting important documents. The consequences of this mistake is that you are unable to prove his/her citizenship. So the most important thing for you to do would be to submit all those important documents that are able to prove your national identity.
Documents like your driver’s license, birth certificate, voter’s ID card, pan card and other similar documents should be submitted along with the appropriate fees; otherwise your passport application will be rejected.

Unclean Copies

If the document submitted you have stains or incomprehensible to look at, then there are chances your application may be denied. Make sure that the documents that you are submitting are legible, clear and look as close to the original as possible.
Present your documents well, and you should have no problems getting a passport.

Signature Issues

If your signature is not consistent across the various forms and documents, your application could be rejected. Make sure your signatures match across all the documents and forms you have to submit.

Application Fees

This is one of the most obvious reason for your passport application rejection. Ensure you pay the right stipulated application fee when applying for a passport. Failure to do so will result in the rejection of the application.

‘Enemy of the State’

A state can refuse to issue a passport if for any reason it suspects you may engage in behaviour that is detrimental to the country.
It’s also possible that a misunderstanding about your name could very easily result in you being mistaken for some most-wanted criminal. So be clear with your documents to avoid any confusion. Don’t give them any reason to think you pose a threat to the country.

Criminal History

If your name is under investigation, your passport is likely to be denied. The state could also deny you a passport if it treats you as a controversial figure. Also, if you have in the past served time in a prison for any crime, the state has the right to review your application closely and deny it on the grounds of threat. 

Overdue Payments

If you have any outstanding loans, debts or tax payments that are due by a certain date, then your passport application could be rejected. Make sure that all your tax filings (if applicable) are correct and current before applying. Check with your bank on your loans or debts (if applicable) and repay any outstanding payment.

Residential Address

Another reason for your application rejection may be that your current residential address coming in conflict with the permanent address you listed in your application. For example, if you are living elsewhere, but have applied citing a different address then you may face complications related to the police address-verification process. So you could be denied a passport on the grounds that your address could not be verified by the police.

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Work and Business Visa in India

There are two types of work related visas for non-Indian’s who wish to come to India for work related purposes: Business Visa and Employment Visa.

Business Visa

Business Visa is not applicable for people who are coming to India for part time or full time employment. Duration of business visa is only of 6 months.

The following activities can be carried out under a business visa:

  • establishing an industrial/business venture
  • exploring possibilities to set up industrial/business venture in India,
  • purchase/sell industrial products or commercial products or consumer durables,
  • technical meetings/discussions,
  • attending Board meetings or general meetings,
  • providing business services support,
  • recruitment of manpower,
  • for performing duties as partners in a business and/or functioning as Directors of the company, consultations regarding exhibitions or for participation in exhibitions,
  • trade fairs, business fairs etc.

Employment Visa

Those who want to take up employment or consultancy in India for a substantial duration are required to take an employment provided that they are being sponsored for an Employment Visa by their employer and they draw a salary in excess of US$ 25,000 per annum. The condition of annual floor limit on income will not apply to:

  • Ethnic cooks,
  • Language teachers (other than English language teachers) / translators and
  • Staff working for the concerned Embassy/High Commission in India.

Residential permit

Foreign nationals including their family members who intend to stay in India for more than 180 days or have visa for more than 180 days, have to get themselves registered with the Foreigners’ Regional Registration Office (FRRO) within 2 weeks of their first arrival in India. They are required to make an application in the prescribed form and be present in person at the time of registration.

 The following documents are required to be submitted along with application:

  • Application form in quadruplicate (Form A)
  • Passport and visa in original
  • 4 passport size photographs
  • Proof of residence in India
  • Copy of employment contract and undertakings by the employer
  • Once the FRRO is satisfied about the above documents, a “Residential permit” to stay in India is issued to the foreign national.
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How to apply for citizenship of India

Indian citizenship can be acquired either by registration or naturalization. The exact process for becoming an Indian citizen depends on your nationality and whether you have Indian origin or not.
 

What is the law governing citizenship in India?

The Constitution of India provides a single citizenship for the entire country. The Citizenship Act enacted by the Parliament in 1955 provides for acquisition, renunciation, termination, deprivation and determination of Indian citizenship. The Act provides for acquisition of Indian Citizenship by birth, descent, registration and naturalization.
 

What are the ways by which a person can become a citizen of India?

By Birth

  • Every person born in India on or after the 26.01.1950 but before 01.07.1987 is a citizen of India by birth irrespective of the nationality of his/her parents.
  • Every person born in India between 01.07.1987 to 02.12.2004 is a citizen of India provided either of his/her parents is a citizen of India at the time of his/ her birth.
  • Every person born in India on or after 03.12.2004, shall be citizen of India provided both of his/her parents are citizens of India or one of whose parents is a citizen of India and the other is not an illegal migrant at the time of his/ her birth

 
By Registration
Citizenship of India by registration can be acquired by –

  • A person of Indian origin who is ordinarily resident in India for seven years before making an application for registration
  • A person of Indian origin who is ordinarily resident in any country or place outside undivided India
  • A person who is married to a citizen of India and is ordinarily resident of India for seven years before making an application for registration
  • Minor children of persons who are citizens of India
  • A person of full age and capacity whose parents are registered as citizens of India section 5(1) (a) of this sub-section or sub-section (1) of section 6
  • A person of full age and capacity who, or either of his/ her parents, was earlier citizen of independent India, and has been residing in India for one year immediately before making an application for registration
  • A person of full age and capacity who has been registered as an overseas citizen of India for five years, and who has been residing in India for one year before making an application for registration

 
By Naturalisation
Citizenship of India by naturalization can be acquired by a foreigner (not being an illegal migrant) who is ordinarily resident in India for twelve years (throughout the period of twelve months immediately preceding the date of application and for eleven years in the aggregate in the fourteen years preceding the twelve months) and fulfils other qualifications as specified in third schedule to the act, 1955.
 

What is the process of determination of a citizenship?

  • Any question that arise about the manner of acquisition of the citizenship of another country by any citizen of India, the same shall be determined by the Central Government
  • Any question relating to the acquisition by an Indian citizen of the citizenship of any other country, the Central Government may make such reference as it thinks fit in respect of that question or of any matter relating thereto, to its Embassy in that country or to the Government of that country and act on any report or Information received in pursuance of such reference
  • The fact that a citizen of India has obtained on any date a passport from the Government of any other country shall be conclusive proof of his having voluntarily acquired the citizenship of that country before that date
  • In determining whether a citizen of India has or has not voluntarily acquired the citizenship of any other country, the Central Government may take the following circumstances into consideration, namely
  • Whether the person has migrated to that country with the intention of making it his permanent house.
  • Whether he has in fact taken up permanent residence in that country and
  • Any other circumstances relevant to the purpose

How is citizenship terminated?

Any citizen of India who by naturalization, registration or otherwise voluntarily acquires, or has at any time between the 26th January, 1950 and the commencement of this Act, voluntarily acquired the citizenship of another country shall, upon such acquisition or, as the case may be, such commencement, cease to be a citizen of India.

What are the important documents required before applying for citizenship of India?

  • Evidence of the date of birth of the parents’ viz. copy of the Indian passport or birth certificate.
  • Declaration and Oath of allegiance as specified in the form to be made before the offices specified in the Citizenship Rules, 1955 i.e. Collector/ DM/ DC.
  • Copy of Bank Challan in original amounting to Rs.500/- payable towards declaration and Oath of allegiance deposited in the State Bank of India under Head No.”0070-Other Administrative Services-Other Services-receipts under the Citizenship Act”.
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Impounding a passport under Passport Act

is considered a gross violation of Article 14 of the Constitution. The Passports Act was created to regulate the movement in a positive manner by not letting those who may hamper the sovereignty and integrity of the country.

What does impounding of a passport mean?

Section 10 (3) of the Passports Act lays down the provision for impounding a passport in India.

According to this section, the passport authority may impound or cause to be impounded or revoke a passport or travel document, —

(a) If the passport authority is satisfied that the holder of the passport or travel document is in wrongful possession thereof; images.

(b) If the passport or travel document was obtained by the suppression of material information or on the basis of wrong information provided by the holder of the passport or travel document or any other person on his behalf: [Provided that if the holder of such passport obtains another passport, the passport authority shall also impound or cause to be impounded or revoke such other passport.]. [Provided that if the holder of such passport obtains another passport, the passport authority shall also impound or cause to be impounded or revoke such other passport.]

(c) If the passport authority deems it necessary so to do in the interests of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country, or in the interests of the general public.

(d) If the holder of the passport or travel document has, at any time after the issue of the passport or travel document, been convicted by a court in India for any offence involving moral turpitude and sentenced in respect thereof to imprisonment for not less than two years.

(e) If proceedings in respect of an offence alleged to have been committed by the holder of the passport or travel document are pending before a criminal court in India.

(f)If any of the conditions of the passport or travel document has been contravened.

(g) If the holder of the passport or travel document has failed to comply with a notice under sub-section (1) requiring him to deliver up the same.

(h) If it is brought to the notice of the passport authority that a warrant or summons for the appearance, or a warrant for the arrest, of the holder of the passport or travel document, has been issued by a court under any law for the time being in force or if an order prohibiting the departure from India of the holder of the passport or other travel document has been made by any such court and the passport authority is satisfied that a warrant or summons has been so issued, or an order has been so made.

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Things to keep in mind about an initial “New” Company L-1A Petition

New Company L-1A Petition could provide a viable and valuable alternative to Foreign Companies, actively engaged in doing business abroad, to set up operations in the United States and transfer key Managerial and/or Executive level employees to manage and run the newly established Entity. In order to pass the credibility threshold of the adjudicating officer at the United States Citizenship and immigration Services (USCIS), and to ensure a favorable adjudication, the New Company L-1A Petition should be meticulously prepared and vetted before submission. This Article endeavors to summarize top five (5) mistakes one should never make when preparing and submitting a New Company L-1A Petition.

1.  Choosing your right business

The choice of business venture for the newly formed business Entity in the United States should be judiciously made. Although there is no regulatory restriction on the type of business to be pursued by the Foreign Company, not all business ventures tend to be favorable for the New Company L-1A Petition purpose. Unless supported by a strong market analysis and the other supporting documentation explaining the need and purpose to venture into a new business in the United States, it is always a safe choice for the new U.S. Entity to engage or expand into what the Foreign Company is doing abroad provided the business would require hiring of other Managerial, Supervisory or Professional level employees.  
Further, when deciding the business venture, both the short-term goal of obtaining an approval on the initial L-1A Petition, and the long-term vision of successfully securing Lawful Permanent Resident (LPR) status for the Foreign National should be taken into consideration.  In order to achieve both goals, it is a must that the business, to be pursued by the U.S. Entity, should project hiring of staff to support the sponsored Managerial and/or Executive level position. Specifically, the new business should project hiring of other Managerial, Supervisory or Professional level employee during the first year of its operation. As such, when conceptualizing the business idea, rather than focusing on the number of employees, emphasis should be given to the “type” of employees to be hired by the new Company in the United States.

2. Having a sound business plan

Business Plan forms the backbone, or one could say the Central Nervous System, of the New Company L-1A Petition. As such, defects and/or inconsistencies in the Business Plan could irreparably harm the L-1A Petition adjudication. To avert that, one should consider hiring a seasoned Business Plan preparer who is aware of the specific L-1A Petition requirements. Since immigration law is so dynamic, the Business Plan prepared by a professional should be reviewed item-by-item and line-by-line by the Attorney preparing the L-1A Petition. Blindly submitting the Business Plan prepared by the Business Plan preparer could hurt more than help the L-1A Petition as the details contained in the Business Plan should be supported by rest of documents and information contained in the Petition.

More than anything, the Business Plan should appear realistic. Also, make sure it is detailed, logical and consistent. Further, the projections, whether it relates to company’s initial investment, hiring or revenue should appear real and achievable based on industry standards, and company’s size, type and services/products offered. Last but not the least, the Business Plan should contain strong market analysis supporting “why” the Foreign Company decided to venture into a specific business; compare and analyze competitor’s landscape; and provide a time-line of the proposed activities to be undertaken by the new company during the first year of its operation.

3. Organizational chart for the business

Besides Business Plan, much thought and acumen should be utilized when preparing an Organizational Chart for a New Company L-1A Petitions. Like Business Plan, first and foremost the Organizational Chart should appear real and credible. Some of the common mistakes on Organizational Chart include, but are not limited to, projecting too many managers and supervisors in a small organization, or projecting managers and/or supervisors without any direct reports to manage or supervise.

Sometimes, Employers and Practitioners make the mistake of putting all of the supporting personnel under the direct supervision of Beneficiary without creating any hierarchy. Unless all of the personnel under Beneficiary’s direct supervision are Professionals, projecting two-tier Organizational Chart could be disastrous for the L-1A Petition. Further, the Organizational Chart should include all prospective hiring of employees, as indicated on the Business Plan, during the first three (3) years of company’s operation. In doing so, the preparer should include the future hiring month and year for each position. To add, it is always a better idea to support the Organization Chart by including a separate chart stating the summary of proposed job duties for each position title, and including education and experience required for each position.   

4. The perfect office space

Though it may appear logical that any new business setting up its operations in the United States would obtain at least an office space, in practice, new companies, especially small and medium-sized companies, setting their foot in the United States, do not want to make a financial commitment by leasing an office space and paying monthly rents. Note that it is an absolute must that New Company L-1A Petitions should be supported by documentation showing that the newly formed business Entity in the United States has secured “adequate” office space. What is adequate depends on the type and nature of business. If the business needs to have a storage or manufacturing space, show that through additional lease agreements.

Further, the leased office space should be proportionate to the hiring projections contained in the Business Plan. At least, the leased office space should be enough to accommodate all personnel to be hired during the first year of Company’s operation. If the leased office space may fall short to accommodate all first year hiring, sincere effort should be made to document and explain on the Petition that the Company has already sought permission from the leasing company regarding extra space allotment in the future.

5.  Ability to Invest in the New Company & Ability to Pay the Beneficiary

The success of L-1A Petition adjudication demands that the Foreign Company should show and prove its ability to invest in the United States Entity and to pay salary to the Foreign National Beneficiary. Because the new company will be setting up its foot in the United States, it is logical to assume that it will primarily rely on the funds of the Parent company to support its formation and existence, at least during the first year of its operation. As such, the investment to be made by the Foreign Company in setting up the U.S. Entity, and the staffing and operational costs to run the United States office should be projected keeping in mind the financial health of the Foreign Company. Exaggerating initial investments, and staffing and operational cost and not supporting those with the availability of funds in the Foreign Company’s bank account(s) or through future revenue generation could be lethal for L-1A Petition adjudication.

Conclusion

To conclude, the success of a New Company L-1A Petition depends on a number of factors. Besides complying with the regulatory requirements, first and foremost, the choice of Business venture and its Business Plan should appear realistic. Additionally, for the Petition to pas USCIS Adjudicator’s credibility test, the projections on the Petition and Business Plan, be it pertains to financial, prospective hiring, investment, etc. should appear reasonable and achievable. Most importantly, whether or not the new business will hire other Managerial, Supervisory or Professional level employee to support the sponsored Managerial or Executive position within first year of its operation should be considerably thought-out.

The specifics are important too. So, much care should be exercised in making and projecting the Organizational Chart, and in providing a time-line of the activities to be carried out by the New Company during its first year of operation. Further, the New Company should not only lease an office space but it should lease enough office space to accommodate all personnel as per the hiring projections. Last but not the least; before embarking on the L-1A Petition path, Foreign Company’s financial health checkup is required to ensure that it can make the projected investment in the United States, and also pay salary to the Foreign National Beneficiary, at least during Company’s first year of operation in the United States.

Bydeb

October 2016 visa bulletin update

Yesterday, September 21, 2016, U.S. Citizenship and Immigration Services (USCIS) announced that in October 2016 it will accept Adjustment of Status Applications based on the “Filing Date” chart for most of the employment- and family-based immigrant visa categories. This is positive news for everyone, especially for Indian and Chinese Nationals. For your reference, included below are the “Filing Date” charts for both employment- and family-based filings for the month of October 2016.

Note that the “Filing Date” chart will not apply to the employment-based, fourth preference (EB4) category for certain religious workers; and the employment-based, fifth preference (EB5) category for cases filed through regional centers.

October 2016 Employment-Based “Filing Date” Chart:

Employment-based                     All Chargeability 
Areas Except
Those Listed              
 CHINA-
 mainland     
 born                              
               INDIA                               MEXICO                     PHILIPPINES            
 1st              C             C             C            C           C
 2nd              C        01MAR13       22APR09            C            C 
 3rd              C        01MAY14       01JUL05            C       01SEP13
 Other Workers              C        01AUG09       01JUL05            C       01SEP13
 4th              C             C              C            C            C 
Certain Religious Workers              C             C             C            C            C 
5th Non-Regional Center(C5 and T5)              C        15JUN14             C            C            C
5th Regional Center (I5 and R5)              C        15JUN14             C            C           C

October 2016 Family-Sponsored “Filing Date” Chart:

Family-
Sponsored               
All Chargeability 
Areas Except
Those Listed              
         CHINA-
        mainland 
          born              
          INDIA                    MEXICO            PHILIPPINES    
 F1         01JAN11          01JAN11       01JAN11        01JUN95     01MAY06
 F2A         22NOV15          22NOV15       22NOV15         22NOV15     22NOV15       
 F2B         08FEB11          08FEB11       08FEB11        01JUN96     01FEB07
 F3         22AUG05          22AUG05       22AUG05        01MAY95     01JAN95  
 F4         01JUL04          01JUL04       01MAY04              01DEC97     01APR94 
Bydeb

“Familial Relationship” within the context of Perm Labor Certification Application

As compared to other myriad lurking issues, the issue of family relationship between a sponsored Foreign National and the sponsoring Employer does not arise that frequently within the context of Permanent Labor Certification Application. However, when it does, it should be dealt with utmost care and attention because not doing so may invite a supervised recruitment, and possibly a denial.

Few cases have dealt specifically with the familial relationship issue between a sponsored Foreign National and the owners, stockholders, partners, corporate officers, or incorporators of the sponsoring Employer.

In a recent decision, Palm café Restaurant, 2012-PER-01446 (BALCA June 7, 2016), the Board of Labor Certification Application (Board), dealing with the issue of family relationship between the owners of the sponsoring Employer and sponsored Foreign National, imported and applied the “totality of circumstances” test in determining whether the Employer made a genuine determination of foreign labor by sponsoring the Foreign National, and whether a genuine job opportunity existed for American workers to compete for the job opening.

The “totality of circumstances” test was previously laid down by the en banc panel of the Board in the landmark pre-PERM decision of Matter of Modular Container Systems, Inc., 89-INA-228 (BALCA July 16, 1991). The Board in Modular Container specifically dealt with the ownership interest issue of the sponsored Foreign National in the sponsoring organization.
 

Declaring Familial Relationship on a PERM Labor Certification Application

Before delving into the specifics of the “totality of circumstances” test as was applied in the Palm Café by the Board, and before finding and understanding the definition of “familial relationship”, it is important to understand why an Employer is required to declare the familial relationship on the Permanent Labor Certification Application (ETA Form 9089).

Labor Certification using the Department of Labor’s (DOL) Program Electronic Review Management (PERM) system is an attestation-based program. Among other attestations, the prospective Employer sponsoring a Foreign National for an employment-based Lawful Permanent Resident (LRP) status[1] (commonly referred to as “Green Card”) must attest that the job opportunity described in the Labor Certification Application has been and is clearly open to any U.S. workers.

Accordingly, the regulations require the Employers to conduct recruitment steps in good faith to recruit U.S. workers prior to submitting the ETA Form 9089. The DOL’s Certifying Officer (CO) may certify the Labor Certification Applications only after finding that there were no able, willing, qualified, and available U.S. workers to fill the position at the time the Labor Certification Application was filed. Therefore, the CO is required to verify the attestations made by the prospective Employer on the Form ETA-9089 by determining whether or not the Employer conducted a good faith test of the domestic labor market before submitting the Labor Certification Application.

In particular, regulations require the Employer to certify, under Penalty of Perjury, to the conditions of employment listed on the Form ETA-9089. See 20 CFR Section 656.10(c).  Failure to attest to any of the ten (10) conditions listed under Section 656.10(c) results in the denial of the Labor Certification Application. One of the listed conditions requires the Employers to attest that the job opportunity has been and is clearly open to any U.S. worker.[2]Further, the regulations address the potential influence and control over a job opportunity by the named Foreign National.  Specifically, 20 CFR Section 656.17(l) states that:

“If the Employer is a closely held corporation or partnership in which the Foreign National has an ownership interest, or if there is a familial relationship between the stockholders, corporate officers, incorporators, or partners, and the Foreign National, or if the Foreign National is one of a small number of employees, the Employer in the event of an audit must be able to demonstrate the existence of a bona fide job opportunity, i.e.,the job is available to all U.S. workers…” [emphasis supplied]

Thus, if there exists a familial relationship between the owners, stockholders, partners, corporate officers, or incorporators, and the Foreign National sponsored by the Employer; the Employer must be able to demonstrate the existence of a bona fide job opportunity, i.e., the job is available to U.S. workers. In order to provide the CO the opportunity to evaluate whether the job opportunity has been and is clearly open to qualified U.S. workers, an Employer must disclose any familial relationship(s) by marking “yes” to Question C.9[3] on the ETA Form 9089. Note that the failure to disclose familial relationships when responding to Question C.9 is a “material” misrepresentation, and, may therefore be grounds for denial, revocation or invalidation in accordance with the DOL’s regulations.
 

Definition and Scope of Familial Relationship

The next basic issue to consider and analyze is the existence of the type of family relationship between the stockholders, corporate officers, incorporators, or partners, and the Foreign National. More specifically, when should an Employer mark “yes” when responding to the Question C.9 on the Form ETA-9089.

Surprisingly, or not surprisingly, the regulations do not define the term “familial relationship.”  So, where to look further?  The DOL, through its FAQ[4] defined the term ““familial relationship” by stating the following: “A familial relationship includes any relationship established by blood, marriage, or adoption, even if distant.

The FAQ listed few examples what it meant by “distant relationships.” For example, the definition of familial relationship includes cousins of all degrees, aunts, uncles, grandparents and grandchildren. It also includes relationships established through marriage, such as in-laws and step-families. Further, the FAQ stated that the term “marriage” will be interpreted to include same-sex marriages that are valid in the jurisdiction where the marriage was celebrated.

Additionally, the FAQ provided guidance that a familial relationship between the foreign national and the Employer does not establish the lack of a bona fide job opportunity perse. Ultimately, the question of whether a bona fide job opportunity exists in situations where the foreign national has a familial relationship with the Employer depends on “whether a genuine determination of need for foreign national labor can be made by the Employer corporation and whether a genuine opportunity exists for American workers to compete for the opening

Therefore, the Employer must disclose such relationships, and the CO must be able to determine that there has been no undue influence and control, and that these job opportunities are available to U.S. workers. When the Employer discloses a family relationship, and the Labor Certification Application raises no additional denial issues, the Employer will be given an opportunity to establish, to the CO’s satisfaction, that the job opportunity is legitimate and does not pose a bar to certification. The CO will consider the Employer’s information and the“totality of the circumstances” supporting the Labor Certification Application in making this determination.
 

“Totality of Circumstances” Test

So, what does the “totality of circumstances” test entails, and what all factors the CO needs to look into in order to determine whether or not the Employer made a genuine determination of the need for foreign labor, and whether a genuine opportunity exist for American workers to compete for the job opening.  

As the Board laid down in Modular Container, the CO must consider, among other factors, whether the Foreign National:

  1. Is in the position to control or influence hiring decisions regarding the job for which labor certification is sought;
  2. Is related to the corporate directors, officers, or employees;
  3. Was an incorporator or founder of the company;
  4. Has an ownership interest in the company;
  5. Is involved in the management of the company;
  6. Is on the board of directors,
  7. Is one of a small number of employees;
  8. Has qualifications for the job that are identical to specialized or unusual job duties and requirements stated in the Application; and
  9. Is so inseparable from the sponsoring Employer because of his or her pervasive presence and personal attributes that the Employer would be unlikely to continue in operation without the Foreign National.

Thus, the above listed factors are not exclusive, and the CO should also take into consideration the Employer’s compliance and good faith in the Labor Certification Application process. Further, no single factor, such as a familial relationship between the Foreign National and the Employer, shall be controlling. More so, the Employer can document and provide, when asked, any additional information which may support good faith test of the U.S. labor market.

Briefly going through the facts and analyzing how Board addressed and resolved the issue of familial relationship in Palm Café can provide a good understanding on how the above-mentioned factors might come into play.

In Palm Café, the Employer sponsored one his relatives for the position of Chef and Head Cook. The Labor Certification Application was later selected for an Audit. Among other things, the Audit letter requested for certain business records to determine whether the foreign worker had influence and control over the job opportunity. Some of the requested information and documentation included the following: documentation of the U.S. workers who applied for the position; copies of Employer’s articles of incorporation, partnership agreements, state or federal documentation in connection with the establishment of the sponsoring Employer, and business licenses; an outline of the corporate structure and list of officers and partners; a statement of the employees with payroll sign-off responsibility; a statement describing familial relationships between parties with ownership interests and the foreign worker; a financial history of the Employer; the names of the Employer’s officials responsible for hiring or having control or influence over hiring decisions, etc.

Later, finding out that the sponsored employee is the brother of one of the husband-and-wife owners; the CO denied certification stating that the DOL was unable to determine whether the job opportunity was open and available to U.S. workers. Specifically, the CO cited the following factors for concluding that the job opportunity was not open and available to U.S. workers: (1) the Foreign National is the brother of one of the owners; (2) the Foreign National is “possibly an integral part of the Employer’s business”; and (3) “conceivably the Employer’s business operations cannot continue without the foreign worker,” which gives the Foreign National “considerable control and influence as to how the Employer’s restaurant is operated.

The denial, however, did not raise any objection to the Employer’s good faith recruitment efforts in testing the United States labor market. Siding with the Employer’s argument, and based on the documentation provided following audit request, the Board agreed with Employer’s attestation that no U.S. worker responded to the newspaper advertisements and SWA job posting. 

Finding the case analogous to a post-Modular Container decision, Altobeli’s Fine Italian Cuisine, 1990-INA-130 (BALCA Oct. 16, 1991),[5] the Board found eight (8) out of the nine (9) factors, as contained in the “totality of circumstances” test, not applicable in Palm Café.

Specifically, the Board found that: (1) the Foreign National did not control or influence Employer’s hiring decisions; (2) the Foreign National was not an incorporator or founder of the company; (3) the Foreign National did not have an ownership interest in the company; (4) the Foreign National was not on the board of directors; (5) the Foreign National was not one of a small number of employees; and (6) the Foreign National did not have qualifications identical to specialized or unusual job duties and requirements stated in the Application.

The Board also concluded that two other factors – whether the foreign national was involved in the management of the company, and whether the foreign national was inseparable from the sponsoring Employer – also were not applicable here. Although the organizational chart provided by Employer indicated the Head Cook position in charge of several line cooks, there was no evidence in the job description, submitted by the Employer during the audit that the Head Cook would engage either in management activities or payroll activities. In addition, the Board agreed with the Employer that the restaurant can function without the foreign national, and there were other cooks who could assume the duties of the Head Cook.
 

Conclusion

Based on the foregoing, when deciding whether or not to pursue and submit a Labor Certification Application on behalf of a Foreign National who happens to have a family relationship with the owners, stockholders, partners, corporate officers, or incorporators of the sponsoring Employer, one should take into consideration all nine (9) factors of the “totality of circumstances” test. No single factor can and should be controlling. Before doing so, Employers and/or Practitioners should take a careful look at the definition of “familial relationship.” Employers and/or Practitioners should also keep into their audit file any and every document/information which could suggest that there exists a genuine job opportunity for which the Employer conducted the labor market test ingood faith. Last but not the least; it is worth remembering that the failure to disclose familial relationships on the Labor Certification Application is a “material” misrepresentation, and, may therefore be grounds for denial, revocation or invalidation of the Labor Certification in accordance with the DOL’s regulations.


[1] or for an Immigrant Visa to be issued aboard at the U.S. Consular Post abroad.

[2] See 20 CFR Section 656.10 (c)(8)

[3] Is the employer a closely held corporation, partnership, or sole proprietorship in which the  

  alien has an ownership interest, or is there a familial relationship between the owners,

  stockholders, corporate officers, incorporators, or partners, and the alien?

[4] See “PERM FAQ” (July 28, 2014).

[5] The Board found that there was a bona fide job opportunity where the alien’s brother and sister-in-law owned 75 percent of the Employer’s stock.