AMCHAM KOLKATA
Monday, February 2, 2009
U.S. Immigration Policy & IT Related Visa Processes
Points from the Address by
Prakash Khatri
President and CEO of KPK Global Solutions, LLC

On February 2, 2009, AMCHAM Kolkata held an interactive session with the U.S. Consul General in Eastern India, Ms. Beth A. Payne and Mr. Prakash Khatri, President and CEO of KPK Global Solutions, LLC. Ms. Payne shared her thoughts on the future of Indo-US Relations. Mr. Khatri is a well known specialist on U.S. immigration law and related matters. AMCHAM took the opportunity of his (personal) visit to the city to hear from him and for members, particularly from the IT sector, to clarify doubts regarding the processes that may lead to delay, approval or denial of a visa. The remarks of both Consul General Payne and M. Khatri are here.

Future of Indo-US Relations by Consul General Beth Payne - US Immigration Policy & IT-Related Visa Processes

• In 2007, US exports to India grew by 75% to a record high of $17.6 billion, while Indian exports to the US grew 10% to $24 billion according to the U.S. Department of Commerce

• Overall US-India bilateral trade in 2007 topped nearly $42 billion

• US investments in India grew by 40% to a cumulative $12.4 billion. Indian investments in the US jumped 62% to $3.2 billion

• International Monetary Fund predicted last week that India’s economy would still grow at a rate of more than 5% for each of the next two years

• One major consulting firm predicts that India will become the world’s 3rd largest economy in the year 2032

• For these reasons and more, US firms want to do business with India, and Indian firms want to do business with the US

• A great deal of that dynamic bilateral business activity has been – is - and will continue to be based in the advanced technology sectors

• International business – especially in the IT and other technology sectors – involves more than just exchange of goods and services or movement of financial capital. It often requires transfer of human capital across borders.

• Many high tech US firms seeking a competitive edge in a highly competitive international marketplace, need visas for the highly skilled international talent that they seek to hire or transfer

• India’s IT firms which have been acquiring US companies, need visas for their own management teams to explore and negotiate business deals with US counterparts or to run newly acquired US operations

IT Related Visa Process

• H-1B and the L-1 are the visa types that foreign skilled workers need to begin employment in the US

• Although H1-B visas issued each year is limited to 65,000, an additional 20,000 of these visas are available to applicants who have earned advanced degrees from US educational institutions

• 85,000 H1-B’s has not been enough to accommodate the tens of thousands applicants each year. Nor has it been enough to mollify companies that want to hire more H-1B visa holders

• In each of the past two years, number of H-1B visa applications exceeded the quotas on the very first day of the application filing period. The huge surplus of unsuccessful H-1B applicants led several big US high-tech firms – including Google, Microsoft - to urge Congress to raise the H-1B cap

• The 2009 application period opens April 1, and the quota is surely to be filled by April 2 - and this is for jobs that begin after October 1, more than six months later

• In FY 2007, India was the leading country of citizenship for all H-1B admissions, totaling 34% of all such admissions to the US

• In recent years, many companies have been using the L-1 strategy to get around the bureaucratic bottleneck created by the heavy competition for the H-1B visas. There are no annual limit on the number of L-1 visas that are issued to managers, executives and employees with specialized knowledge whose employer is transferring them to the US-based home office, subsidiary, or affiliate

• The L-1 visa also offers the opportunity for firms that hire large numbers of intra-company transferees to apply for and receive a “blanket” L visa

• An H-1B or L-1 visa applicant routinely must deal with as many as six or more agencies in four different Federal Cabinet departments – and that is if you do not have sensitive technology development involved in which case one would deal with two other Cabinet departments

• For example, for an H-1B visa one begins

1. With the US Labor Dept for issuance of a Labor condition attestations;

2. followed by a petition to the US Dept of Homeland Security’s (DHS) US Citizenship and Immigration Services for paperwork review and for the approval or denial of the petition

3. Obtaining a visa from the Consulate under the US Dept. of State

4. After getting the visa, the applicant deals with another agency of the DHS, the Customs & Border Protection at the port of entry

5. If a problem emerges while in the US, the applicant will have to deal with yet another DHS agency, Immigration & Customs Enforcement (ICE)

6. This agency will then interact with an Immigration Judge that is from the Executive Office for Immigration Review at yet another Department – the Dept. of Justice

• Each of these departments and agencies collect, maintain and process visa applicant data on disparate databases and IT systems. The greatest challenge in recent years has been to get all these data systems to communicate accurately and efficiently with each other

US Immigration Landscape

• In the past few years DHS has placed a growing emphasis on immigration enforcement in the workplace

• This often manifested by major raids conducted by ICE agents on large firms employing undocumented immigrants, arrest of company officers, and large-scale round-ups of illegal immigrant workers

• In the AFY ended September 2008, ICE made more than 1,100 criminal arrests – including 135 owners, managers, supervisors or HR workers – in its worksite enforcement investigations. The agency also arrested more than 5,100 individuals for immigration violations during these operations

• This year, the US Congress has more than doubled ICE’s budget for such “worksite enforcement” investigations to $34 million

• With the change of administration, most pending regulations from the previous Administration were placed on hold by President Obama on Jan 20 until proposed rules are reviewed and vetted by his new policy team

• It is too early to know what specific policy initiatives the President will pursue. But there are some indicators of the path that maybe followed

• Two leading contenders for Mr. Obama’s newly created position of Federal Chief Technology Officer – Padmasree Warrior, Chief Technology Officer of CISCO Systems, and Vivek Kundra, CTO of the District of Columbia Government -- were both born in India

• Having these two India-born executives under consideration for the Federal CTO post is a clear acknowledgement of the high-tech executive talent that India has to offer. The appointment of either could well influence how the new administration deals with immigration policy and its effect on the US IT sector

• Consider newly confirmed DHS Secretary Janet Napolitano

• Although she was a governor of a border state that has long struggled with undocumented immigrants, Ms. Napolitano has a history of strong support for increasing the number of H-1 visas issued each year. In September 2007, she was one of 12 governors who sent a letter to congressional leaders urging an increase in the visa cap

• Ms. Napolitano also is on record as saying she would like to make the immigration process easier for foreign graduates of US schools to obtain permanent residency cards or green cards, thus permitting these highly skilled graduates to bypass the H-1B visa process to begin working immediately

• As the overseer of the US Citizenship and Immigration Services which administers the programs, the Secretary cannot unilaterally increase the cap but she does have authority to streamline the H-1B application process

• On immigration issues, Mr. Obama, in the US Senate, called for stronger workplace enforcement against employers who hire undocumented immigrants. Yet, he also proposed increasing the number of skilled workers permitted to enter and work in the US.

• During the presidential campaign, Mr. Obama called for an end to tax breaks for US companies that outsource jobs. Of course this caused consternation among many US firms, as well as many Indian IT firms which viewed his comments as a threat to India’s $63 billion BPO industry

• The Obama campaign subsequently acknowledged that “jobs go where they will be handled most efficiently” and it is a process that cannot be stopped

• Mr. Obama’s calls to increase the number of H-1B visas, coupled with his administration’s policy outline for technology deployment and modernization suggests that his administration will strive to offer a fairly warm welcome to foreign skilled workers for the US high-tech sector

• But it may become much harder in the coming months for the White House to argue the need for raising the number of H-1B visas when an increasing number of Americans are out of work.

• A report of the US Department of Commerce notes – “Capital – including human capital - goes and stays where it is well-treated”

• If the US is to continue as the world’s leading economy, if it is to continue to grow and innovate and prosper, then it must pursue immigration policies and create an environment that make foreign business capital – those non-US citizens who are the best and brightest of their generation – feel welcome and well-treated in the US

(Mr. Prakash Khatri was the first U.S. Citizenship and Immigration Services Ombudsman at the Dept of Homeland Security,in which capacity he served from July 2003 thru February 2008. During that tenure, he authored four annual reports to the US Congress detailing recommendations for changes to the immigration process.)