Past Events

Workshop on US Visa Procedures - Friday, October 14, 2011, Chennai

THE AMCHAM WORKSHOP ON US VISA PROCEDURES
Hotel Hilton Chennai
Friday, October 14, 2011

Introduction

Given the high volume of travel by executives of Amcham member companies between India and the USA, the State Department of the US government has instituted a reform process and the US Embassy and Consulates in India have introduced many initiatives to facilitate genuine travel to the US for business, work, pleasure, medical emergencies etc.

To help the Visa Process administrators employed in American companies in India, Amcham organised a Workshop on US Visa Procedures targeting BEP signatories, and executives / managers responsible for HR, Travel, logistics, immigration and global mobility.

The workshop began at 10 am on Friday, October 14, 2011 with 45 participants and 4 officers from the American Consulate General Chennai. The event began with a welcome by Mr. R. Ramkumar, Chairman, Amcham Tamil Nadu Chapter. Mr. Nicholas J. Manring Chief of Consular Services and Mr. Michael Cathey were the main speakers. Mr. Thomas Montgomery, Manager, BEP Services and Mr. Paul Prokop, Consular Officer were also present and interacted with the participants.

The summary and detailed explanations and discussions during the interactive session post the presentation made by Mr. Nicholas Manring and Mr. Michael Cathey are summarised below:

Milestones recorded at the Visa Factory - American Consulate General Chennai

  • The time spent by Visa applicants at the Consulate in chennai is less than 60 minutes to complete the interviews process prior to issue of visa.
  • The wait time for getting an appointment for visa interview for most categories of visa is about 2 working days at the American Consulate General in Chennai.
  • 10% of all U.S. non-immigrant visa applications come from India.
  • During FY 2011, about a third (37%) of all L1 visas in FY 2011 were issued to Indians. " During FY 2011 Indians were issued 53% of H-1B visas.
  • India is next only to China with about 103,000 students studying at US universities
  • In FY 2011 the American Consulate General Chennai processed over 216,000 non immigrant visa applications most of whom were issued with a visa for travel to the USA.
  • During FY 2011 a record total of 671,895 visa applications were processed by the four consulates in Chennai, Mumbai, Kolkata and the Embassy at New Delhi.

    The major categories of US Visa explained
    The 3 main visa categories
  • B1: Short-Term Business Visa - All processing done in India
  • B2: Tourist Visa - Personal Travel, Tourism and family visit processing done in India
  • H1B, L1A, L1B, etc - Most common visa categories for Indians to work legally in the United States. The L category is for intra company transferees.
    B-1 Visa - Business: The definition of "business" in this instance is limited, and does not generally allow for gainful employment or productive activity such as operating a business or consultancy work. Specifically, in the applicable U.S. law the term "business" is limited to the negotiation of contracts, consultation with business associates, litigation, and participation in scientific, educational, professional or business conventions, conferences or seminars and other legitimate activities of a commercial or professional nature. It does not include local employment or labor for hire.

    The B1 visa is not for productive work. Productive Work is defined as an activity which remuneration is paid for services rendered.

    B-2 Tourism/Pleasure: In general, persons traveling to the U.S. on holiday or vacation require valid B-2 visas. Only those eligible for visa free travel under the Visa Waiver Program or nationals of a country that has an agreement with the United States allowing their citizens to travel to the United States without B-2 visas have exceptions to this rule, and those must have machine-readable passports from an eligible country. If you are not eligible to travel visa-free, or are not a national of a country where B-2 visa requirements are waived, you will be required to apply for a visa before traveling.

    Persons Holding Valid B1/B2: If you already have a multiple entry unexpired B1/B2 visa in your expired passport, that visa is still valid for travel to the U.S. You must carry both the old passport with the visa and an unexpired passport of the same nationality as the expired one.

    The B1 visa is not for productive work. Productive Work is defined as an activity which remuneration is not paid

    B1 in Lieu of H
  • Applicant must meet all qualifications of BOTH the B and H categories.
  • The "H" task must be accomplished in a short period of time.
  • Not meant to circumvent an H petition

    As per US laws it is illegal for an employer to fail to pay the H1B worker his full rate of pay because of the employer's lack of work, downtime between contracts, or after a downturn in business. Violations of US labor law expose the petitioner to financial and criminal liabilities

    L Visa : Intra Company Transfer

    L-1 visas are available to a person (and L2 to his/her family), to transfer him/her to work in the United States for his company as an employee oif the US parent company. The employee should have worked in the company for 1 continuous year within the past 3 years in a related business entity in the capacity of a manager/executive or in a specialized knowledge worker capacity. The applicant must be going to the U.S. to continue providing services for the same employer.
    Two types of employees may be sponsored for L1 Visa:

    Manager/Executive: The legal definition of manager and executive must be strictly followed and a detailed description of duties must be enclosed along with the petition. Generally, an executive or a manager should have supervisory responsibility for professional staff and/or for a key function, department or subdivision of the employer.

    Managers and executives plan, organize, direct, and control an organization's major functions and work through other employees to achieve the organization's goals. Individuals who primarily perform the tasks necessary to produce the product(s) or provide the service(s) of an organization are not employed in an executive or managerial capacity. The majority of his/her duties should be related to operational or policy management, not to the supervision of lower level employees, performance of the duties of another type of position, or other involvement in the operational activities of the company, such as doing sales work, operating machines, writing computer programming code or supervising those that do. However, the person is not barred from applying his professional/technical expertise to solve a particular problem. While an executive may manage a function within an organization, it should not be directly performed by the executive. Generally executives would not have subordinate staff, except for personal staff. It is not enough to have just the title of the position that indicates manager/executive position, duties also should be accordingly performed.

    Persons in this category get an L1A visa. The initial petition will be approved for 3 years, and can be renewed twice for 2 years each for a total of 7 years.

    Specialized Knowledge Staff: A person should have knowledge of the company's products/services, research, systems, proprietary techniques, management, or procedures. Knowledge which is widely held or related to common practices or techniques and which is readily available in the United States job market is not specialized for purposes of L classification. The level of knowledge required and the employment of the specific alien must directly relate to the proprietary interest of the petitioner. To be proprietary, the knowledge must relate to something which relates exclusively to the petitioner's business. Persons whose general knowledge and expertise enable them to merely produce a product or provide a service are not eligible for this visa.

    Specialized knowledge can be obtained only through experience unique to the company to contribute to the employer's competitiveness.

    Persons in this category get an L1B visa. The initial petition will be approved for 3 years, and can be renewed once for 2 years for a total of 5 years.

    For each of these of types of L1 visa, on completing the maximum allowable period in L-1 status, the employee must be employed outside the United States for a minimum of one year before a new application is made for L or H status.

    Please note that the times spent in L-1 status and H status are added together and counted toward the total.

    It is allowed for a specialized knowledge worker to travel to the United States as a Manager or Executive, and for a manager or executive to come as a specialized knowledge worker, provided the U.S. operation has been doing business for at least 1 year.

    Qualifying Organization

    There is no restriction on the types of business that can sponsor an L1 visa - corporations (S, C, LLC etc.), partnerships, government-owned entities and non-profit organizations are all eligible. The sponsoring employer need not be U.S. owned or incorporated. There are four business entities in the United States that can offer employment to the alien - a parent company, a branch, a subsidiary, or an affiliate. Only if these entities are able to offer full proof that they meet the definition of a "qualifying organization" will the alien be granted temporary, nonimmigrant work status in the U.S. by the United States Citizenship and Immigration Service (USCIS).

    There are four tests to determine if the U.S. and foreign entities are of the same qualifying organization:

    1. that business is executed in the U.S. during the entire stay of the L-1 Visa recipient
    2. that business is transacted in another country while the L-1 Visa recipient is working in the U.S.
    3. that there is more than just an agent's office in either the U.S. or abroad.
    4. It is really doing business, that there is evidence of a systematic and continuous flow of goods or services within the context of a structured business with a business plan.

    However, it is not necessary that international trade be taking place. Therefore, it is acceptable if the company produces goods or services in the U.S. that will be used entirely within the U.S.

    In order to sponsor an application for an L1 visa:
    A foreign parent must own at least 50% of a U.S. subsidiary, and have veto powers over the subsidiary's actions
    A U.S. parent must own must own at least 50% of the foreign subsidiary, and have veto powers over the subsidiary's actions
    Affiliate U.S. and foreign companies must each be at least 50% owned by the same ultimate parent
    A U.S. organization with a branch office abroad qualifies, as does a foreign organization with a U.S. branch (though this must be more than simply an agent or representative)
    A U.S. organization which employs e.g. sales personnel overseas can sponsor such employees for L1's even if there is no non-US office.
    Ownership requirements are not as strict in the case of very large corporations, where a substantial minority shareholding will be a qualifying relationship.
    L1 for opening new office in the U.S.

    It is possible for a manager or executive to travel to the U.S. for opening a new office, provided evidence for following are produced:
  • Sufficient real estate space has been secured to operate a new office
  • The beneficiary has been employed for one continuous year in the three year period preceding the filing of the petition in an executive or managerial capacity and that the proposed employment involves executive or managerial authority over the new operation; and
  • The intended United States operation, within one year of the approval of the petition, will support an executive or managerial position, supported by information regarding:
  • The proposed nature of the office describing the scope of the entity, its organizational structure, and its financial goals;
  • The size of the United States investment;
  • The financial ability of the foreign entity to remunerate the beneficiary and to commence doing business in the United States; and The Organizational Structure of the foreign entity.

    It is expected that a manager or executive who is required to open a new business or office will be more actively involved in day-to-day operations during the initial phases of the business, but must also have authority and plans to hire staff and have wide latitude in making decisions about the goals and management of the organization.

    Blanket L1 Petition
  • Organizations which have been doing business in the United States for a minimum of one year and
  • Are engaged in commercial trade or services (i.e. no charitable or non-profit organizations)
  • Have at least 3 offices in the U.S. and overseas; and
  • Have either sponsored at least 10 successful individual L1 petitions in the last 12 months;
  • U.S. annual sales exceeding $25,000,000 or A U.S. work force of at least 1000 employees.
  • Can include an unlimited number of qualifying foreign parents, subsidiaries, affiliates or branch offices in a 'blanket' petition.

    Once approved, L1 blanket petitions considerably reduce the processing timings as the employer does not have to prove eligibility every time. Only the employee has to prove the eligibility at the U.S. consulate abroad, and no processing at USCIS is required for individual cases. An applicant can take a copy of the I-797 approval notice and apply directly at the nearby U.S. consulate to obtain an L-1 visa stamp in his passport.

    Only if the employer has a "blanket" L petition approved by the USCIS, the time of employment abroad is shortened from one year to six months. Otherwise, the employee must work abroad for the employer or a related company for one year before qualifying for L status. The law applies only to nonimmigrant L status.

    In order to qualify for permanent residence as a multinational executive or manager, he/she must still meet the "one-year" requirement. Employers of persons who enter the U.S. in L status using the new "six-month" law may be forced to submit Applications for Alien Labor Certification in order to obtain permanent residence for such persons.

    L-1 Process

    The filing of Form I-129 and the special L supplement that accompanies Form I-129 is the first requirement to be sent directly to the USCIS Service Center in the same jurisdiction as the place of employment. By filing Form I-129, the petitioner is applying for a temporary, nonimmigrant work visa that will authorize the employee, the right to work in the United States.

    It should show that the prior education and training make the applicant of significantly greater value to the national labor pool than the hiring of a U.S. citizen.

    A letter from the U.S. employer describing both the applicant's prior duties abroad and the duties to be performed in the U.S. will be necessary for the USCIS to rule that this position may not be filled by a U.S. national. This letter must also prove that both entities are themselves meeting the guidelines of a qualifying organization. Letters must be submitted by both the foreign and U.S. entities, confirming that the applicant has met the one-year in three years requirement.

    Fees for L petitions

    Please check the US Consulate / US Embassy website for details of the current filing fee structure for I-129 L. In addition to the Filing fee, a Fraud Prevention and Detection fee must be paid. This is only for the initial petition or change of employer. Extension with same employer is not subject to this fee.

    L2 Visa for Dependents

    The petitioning company sponsors the employee for an L-1 visa for temporary employment in the U.S., but the employee's spouse and dependent minors will receive an L-2 Visa. The spouse of an L-1 visa holder (not dependent children) can get employment authorization that allows them to work freely (high tech, grocery store or restaurant or whichever legal business they want to work in.)

    For more information, please check E & L Spouse Employment Authorization.

    At the Visa Interview Window - Key Points to Remember
  • Each Officer performs approximately 100 interviews per day
  • Each Officer interview for approximately 5 hours
  • Therefore, each interview lasts no more than 4 minutes!
  • Articulate the reason for Travel.
  • If on a L1B - the applicant is required to explain what his / her specialized knowledge or specialization is in less than 4 minutes
  • Tell the truth. Nothing ruins an interview more than not being truthful to an officer.
  • There is no silver bullet. An officer makes a decision based on the complete story articulated at the window.

    Communicating with the Consular Department

    The e-mail ID of the key contacts of the consular officers are available on the website. It is very important that companies contact the consular officers when in doubt or when they notice anything unusual.

    It would also be good to send an email thanking the Consular Officers for their efficiency and improved processes. How often do we do this??

    Avoiding Fraud!

    How companies should protect themselves
  • Restrict access to proprietary documents
  • Restrict access to letterhead, signatures
  • Beware of third-party fraud (fake applicant taking advantage of a company)
  • Watch for employee corruption
  • Organized document vendor/alien smuggling networks

    Companies should remember that contracting to third-party service providers does not remove corporate liability.
  • Inform in writing the U.S. Consulate on change of the authorized signatories (for BEP member companies)
  • Monitor website instructions
  • Conduct background investigations when hiring employees (verify source documents - address, certificates, credentials, etc.)
  • Invite security managers to contact the US Consulate
  • Limit distribution of proprietary documents (letterhead and official seals and stationery)
  • Immediately inform U.S. Consulate if issues are detected/employee status changes
  • Constantly review internal procedures and auditing
  • Separate handling of discrete portions of visa processes

    For any further clarifications, please contact Consular Office at the nearest American Consulate General or the US Embassy at New Delhi.

 

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