Foreign Workers Guide to Avoiding Disaster during a Corporate Merger

United States Immigration Series Post No. 12

 Francisco A. Laguna & Rolanzo White

Picture this: you are a skilled Mexican citizen who is working for a United States company. For the holiday season, you and your family go to Mexico City, to spend time with your parents and upon return to the US, you are denied access because your H-1B visa has been invalidated because the employer that originally sponsored your visa is no longer in existence due to a merger. You work for the new, merged company, but the company that sponsored you is no longer your employer.

By Gulbenk - Own work, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=23445038

By Gulbenk – Own work, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=23445038

This denial of entry results from the fact that most work visas are employer-specific.  Therefore, changes in a company’s structure could affect the validity of a foreign national employee’s nonimmigrant visa status or a pending green card application. Determining whether a corporate restructuring affects the employer that filed the visa petition with the U.S. Citizenship and Immigration Services (USCIS) or Department of State (DOS) is essential. The consequences of a merger or acquisition depend upon the type of nonimmigrant visa the company’s employees hold. In this post, we focus on the H-1B visa because it is the most common temporary work visa and the rules applicable to H-1Bs are echoed by many of the other forms of visas. For the sake of comprehensiveness, non-immigrant workers normally fall within the H-1B, L, E and TN visa categories as well as on training tied to J-1 and F-1 visas.

H-1B Visa

The problem arises because an employee must have a valid H-1B visa annotated with the petitioning employer’s name.  In the event a company is absorbed by another entity during a merger, the petitioning employer, essentially, no longer exists.

By United States Department of Labor (DOL) - http://www.loeser.us/flags/, Public Domain

By United States Department of Labor (DOL) – http://www.loeser.us/flags/, Public Domain

H-1B visas are the most common temporary visa for U.S. companies that hire foreign national workers for specialty jobs. Workers are required to have at least a bachelor’s degree, and they must work in a specific geographic location in a specific position for a specific salary. When a company hires an H-1B worker, it is required to make an attestation to the U.S. Department of Labor (DOL) they will comply with the H-1B requirements. This attestation is made as part of a Labor Condition Application (LCA).

The USCIS requires an amended H-1B visa petition to be filed if there are any “material changes” in the terms and conditions of an H-1B worker’s employment or eligibility. However, USCIS does not automatically require the filing of a new LCA and amended H-1B petition where a new corporate entity keeps the employee on in the same position and accepts the LCA and H-1B requirements and obligations, in other words, becomes a “successor-in-interest.” Here, the successor-in-interest, must make available for public inspection a sworn statement that it accepts all the obligations and liabilities of the LCAs filed by the predecessor entity, a list of affected LCAs, their dates of certification by DOL, a description of the new entity’s actual wage system and the federal employer identification number (EIN).

By AgnosticPreachersKid - Own work, CC BY-SA 3.0

By AgnosticPreachersKid – Own work, CC BY-SA 3.0

The filing of the new LCA and must be done before the H-1B workers can work for the new company, or, in our example, return to the country legally. When there is a material change, like location change, then a new LCA or amended H-1B petition must be filed with DOL prior to the relocation of the employee in order to avoid filing an amended H-1B visa petition. Similar rules apply for L-1 (executives, managers and specialized knowledge employees), E-1 (treaty traders) and E-2 (investor) visas.

There are now expensive consequences for non-compliance with the requirement to notify USCIS of material changes, including:

  • At the federal level, the Department of Homeland Security is aggressively targeting employers for I-9 and work visa compliance audits; failed audits can result in significant fines and even jail time.
  • At the state level, new laws in dozens of states allow authorities to fine employers, revoke business licenses and eliminate access to state contracts for immigration law violations.
  • Employees on work visas are suing companies for negligence when employees fall out of legal status, have problems pursuing permanent residency, and face bars on coming back to the United States as a result of the companies’ actions.
  • Major companies now include strong immigration compliance provisions in their vendor contracts, violations of which can result in the termination of the contract in question.
  • Bad press that can impact the company’s economic performance and stock price.

These matters are often complicated, and there are strong laws protecting employees, even foreign workers. Call TransLegal with your questions concerning immigration filing requirements in the event of corporate mergers and acquisitions.

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US Immigrant Relief Measures under Special Situations

United States Immigration Series Post No. 11

Francisco A. Laguna & Annapurna Nandyal

In 1990, the United States Government enacted a procedure called Temporary Protected Status (“TPS”) as part of the Immigration Act of 1990, extending immigration benefits to those immigrants who cannot safely return to their home country either due to war, conflict, environmental disaster or other extraordinary/temporary conditions. Some of the countries that are currently on the list are El Salvador, Haiti, Honduras, Syria, Somalia and Sudan.  Under the TPS procedure, immigrants from beneficiary countries must meet the eligibility requirements to extend their stay. The benefits include:

  • Work authorization and obtaining employment authorization document (EAD)
  • Provisional protection against deportation from United States
  • Possible travel authorization with right to return to the US
"2006-2010 imm rate" by BGManofID - Own work. Licensed under CC BY-SA 3.0 via Wikimedia Commons

“2006-2010 imm rate” by BGManofID – Own work. Licensed under CC BY-SA 3.0 via Wikimedia Commons

As the name suggests, the TPS program is only temporary and does not guarantee lawful permanent status.  Immigrants, however, may file for adjustment of status based on their immigrant petition.

Besides the TPS program, there are other special immigrant programs which the US Citizenship and Immigration Services (USCIS) offers to certain countries. These programs include special benefits for people who lose citizenship by marriage or by serving in foreign armed forces, and certain employees and former employees of the US Government abroad.

"Migrant" by Tomas Castelazo - Own work. Licensed under CC BY 3.0 via Wikimedia Commons

“Migrant” by Tomas Castelazo – Own work. Licensed under CC BY 3.0 via Wikimedia Commons

Recently, as part of its benefits program, the US has granted relief measures under “special situations” whether they occur in US or abroad. USCIS defines a special situation as people who have been affected by natural catastrophes or extreme conditions, and the relief measures provided falls short the relief available to TPS beneficiaries. Yemen and Nepal are the two recent countries which have been granted immigrant relief measures under special situations for its citizens residing in United States.  Yemen has been facing internal war conflict whereas Nepal faced devastating earthquake in June 2015. Some of the benefits afforded the immigrants include:

  • Extension or change of immigration status – If an immigrant has fallen out of status with USCIS because of a disaster, even if the request is filed after his/her authorized period has expired, the applicant can apply for an extension or change in status if s/he can prove direct connection with the disaster.
  • Expedited processing of advance parole requests – USCIS will expedite the processing of advance parole requests if the applicant demonstrates s/he needs to leave the US for a family emergency in wake of a disaster.
  • Fee Waiver – If the immigrant is able to demonstrate his/her inability to pay the relevant application fee, the applicant may request for a fee waiver.
  • Expedited Processing – Adjudication for certain applications such as students with F-1 visas can be processed faster, if an individual needs to work off-campus to support himself/herself in lieu of a disaster. An applicant must demonstrate that s/he is experiencing severe economic hardship as a result of the disaster.
  • "U.S. Citizenship and Immigration Service" by Gulbenk - Own work. Licensed under CC BY-SA 3.0 via Commons

    “U.S. Citizenship and Immigration Service” by Gulbenk – Own work. Licensed under CC BY-SA 3.0 via Commons

    Employment Authorization – Regardless of whether the disaster occurs in the United States or abroad, if the situation has affected the applicant’s ability to be self-supporting, and s/he has a pending employment authorization application, the work permit will be granted.

  • Replacement of Lost or Damaged Travel Documents – If an immigrant has lost or damaged travel documents due to the disaster, such as a Green Card, USCIS will help replace the documents.

As mentioned earlier, a special situation can occur either in the US or abroad.  In the past, special situation measures were implemented in Japan (earthquake and tsunami in 2011), Philippines (flooding in 2013) and Ebola affected countries. Domestically, special situations were implemented during Hurricane Sandy, which turned out be a huge relief for many immigrants who lost their legal documents during the disaster.

Contact TransLegal to learn more about how immigrants affected by unforeseen circumstances can request relief from USCIS.

DACA and DAPA Immigration Programs — Part II

United States Immigration Series

Post No. 10

Francisco A. Laguna & Annapurna Nandyal

Today’s post continues our prior discussion of the Obama Adminstration’s Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parental Accountability (DAPA) programs.

In November 2014, as part of the Immigration Accountability Executive Action, the Obama Administration announced the expansion of the existing 2012 DACA program and introduced the DAPA program.

"Immigration Reform Leaders Arrested 5" by Arasmus Photo - Immigration Reform Leaders Arrested in Washington DCUploaded by Chzz. Licensed under CC BY 2.0 via Wikimedia Commons - https://commons.wikimedia.org/wiki/File:Immigration_Reform_Leaders_Arrested_5.jpg#/media/File:Immigration_Reform_Leaders_Arrested_5.jpg

“Immigration Reform Leaders Arrested 5” by Arasmus Photo – Immigration Reform Leaders Arrested in Washington DCUploaded by Chzz. Licensed under CC BY 2.0 via Wikimedia Commons

DACA was expanded by removing the upper age limit which previsously excluded  persons older than 31 on the date of announcement (i.e., those born before June 15, 1981) from applying for the program.  DACA will now apply to all eligible immigrants who entered the US before the age of 16, regardless of how old they are now.  The second benefit of expanding the DACA program is increasing the term of the employment authorization to three-year increments, rather than two years. Finally, the eligibility cut-off date by which a DACA applicant must be in US was extended from June 15, 2007 to January 1, 2010.

Obama’s executive action has resulted in a multi-state lawsuit filed in a Texas federal court to block the immigration order from taking effect. The case, Texas v. United States, has 26 states challenging Obama’s immigration order by contending that the President overstepped his constitutional authority by acting unilaterally. The plaintiffs argue that the executive actions are in violation of Take Care Clause of the US Constitution and the Administrative Procedure Act (APA) as there was no formal notice-and-comment procedure. In addition, the plaintiffs claim that the stay from deportation of the undocumented immigrants who would benefit under the DACA and DAPA programs would place an undue economic and financial burden on the states. The Texas federal court ruled in favor of plaintiffs and halting implementation of DAPA and the expansion of DACA pending further judicial review.

"Oblique facade 3, US Supreme Court" by Daderot - Own work. Licensed under Public Domain via Wikimedia Commons - https://commons.wikimedia.org/wiki/File:Oblique_facade_3,_US_Supreme_Court.jpg#/media/File:Oblique_facade_3,_US_Supreme_Court.jpg

“Oblique facade 3, US Supreme Court” by Daderot – Own work. Licensed under Public Domain via Wikimedia Commons

However, the court’s preliminary injunction does not prevent USCIS from accepting applications under the original 2012 DACA program. The federal government appealed the Texas court ruling before the Fifth Circuit in New Orleans.  Oral arguments were held July 10th 2015 is set for oral arguments. The case has the potential to land in the Supreme Court by next year.

This landmark case has divided the nation cutting across sections of the society, and the recent anti-Mexican immigrant rants from Donald Trump have deepened that division. Though half of the US states have opposed the reforms, many support the implementation of DAPA and DACA. Proponents of the case include 15 states and District of Columbia, besides many immigration rights groups, businesses and trade associations. They have filed “amicus curie” or “friend of the court” briefs touting the economic, electoral and, most importantly, family benefits these immigration reforms could bring.

Recent studies by independent agencies, like the Council of Economic Advisers, show DAPA and DACA reforms would bring substantial benefits to the states and nation, as a whole. Under these programs, certain immigrants are granted work permits which would lead to higher wages, opportunities to find jobs that match the immigrants’ abilities, greater economic productivity and greater tax revenues.  By implementing DAPA alone, there would be an increase in gross domestic product (GDP) by between $90 and $210 billion in 2024.  There would be also roughly 21,000 jobs per year created over the next 10 years, and payroll taxes would increase by $16.7 billion over next 5 years.

The Obama’s Administration’s main purpose for introducing DAPA and DACA is to provide immediate relief to families who would no longer live in fear that their loved ones could be detained or deported at any time.  It provides much needed family stability to undocumented immigrants in the US and would also allow their children, many US citizens, to grow up in the US.  Studies estimate that approximately 5 million undocumented immigrants would benefit by reuniting with their families.

US Permanent Resident Card by U.S. Citizenship and Immigration Services (USCIS).Ahkitj at en.wikipedia [Public domain], from Wikimedia Commons

US Permanent Resident Card by U.S. Citizenship and Immigration Services (USCIS).Ahkitj at en.wikipedia [Public domain], from Wikimedia Commons

Apart from the economic gains to the nation, DAPA and DACA have key electoral implications. Many who are eligible for the DAPA program are Latino and Asian immigrants who could form a significant voting block during the 2016 presidential elections. These voters could affect election results, especially in swing states.

As the debate over the pros and cons of DAPA and DACA continues, the presidential candidates for 2016 election should clearly articulate their position on these executive reforms in a meaning manner.  The current hate speech is neither helpful nor constructive:  it does nothing to find permanent solution to fix our immigration laws.

TransLegal is available to help corporations and individuals navigate the intricacies of the US immigration system.  Call us with your questions.

 

H-4 Visa Holders Can Apply for Employment Authorizations (under Limited Circumstances)

United States Immigration Series

Post No. 8

Francisco A. Laguna & Chenai Rusike

On May 26, 2015, the US Court of Appeals for the 5th Circuit in New Orleans refused to lift an injunction on President Obama’s executive action to stay the deportation of over 4 million illegal immigrants and issue such immigrants work permits. This was a key component of the President’s immigration reform proposals. The 2-1 decision by the 5th Circuit casts doubt over the success of President Obama’s proposed immigration reform, especially as the 2016 election season approaches.

US Immigration Passport Stamp by Pmkpmk (Own work) [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons

US Immigration Passport Stamp by Pmkpmk (Own work) [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)%5D, via Wikimedia Commons

May 26th, however, also marked a positive step for immigration reform in the United States. As of May 26, 2015, H-4 dependents are now eligible to apply for an Employment Authorization Document (EAD) to work in the United States. H-4 visa holders come into the country as defendants of H-1B visa workers. To be eligible for an H-4 visa, an applicant must be the spouse or the unmarried child under the age of 21 of an H-1B visa holder.  Prior to May 26th, an H-4 dependent could not work in the United States.  Rather, they were limited to furthering their education during their stay in the US.

H-4 dependents are oftentimes also highly skilled individuals, who, as of May 26th, are able to participate and contribute to the American economy. Immigrants are more likely to start businesses, which shall provide new jobs for the economy. Secretary of Commerce, Penny Pritzker, as a guest blogger on the Department of Commerce website stated that “Immigrants started one of every four small businesses and high-tech startups across America, and more than 40 percent of Fortune 500.”

Many H-1B visas are issued to highly skilled STEM (Science, Technology, Engineering and Mathematics) professionals. STEM professionals tend to create jobs through their innovative work.

US Immigration Rates by Country 2001 -2005 by BGManofID at English Wikipedia [Public domain], via Wikimedia Commons

US Immigration Rates by Country 2001 -205 by BGManofID at English Wikipedia [Public domain], via Wikimedia Commons

Prior to May 26, 2015, many highly skilled foreign nationals were attracted by the possibility of coming to the US possibly to work for a Fortune 500 company or a top tier high-tech firm.  However, after weighing the pros and cons, many decided to choose other countries that compete with the US in their respective industries because those countries offered more attractive non-immigrant visa restrictions.  This forced US companies to increase compensation packages offered to potential H-1B candidates to make up for the salary gap resulting from their spouses’ inability to work while in this country.  By allowing the dependents of H-1B visa holders the opportunity to work in the US, US companies can now offer lower compensation packages to those visa holders.

Equally important, this new reform will likely improve the morale of the home.  For some H-4 dependents, not being able to contribute to the home has been the cause of physical and mental abuse in the home. These H-4 dependents were at the mercy of their H-1B spouses, who would threaten to divorce them or, threaten not to extend their H-4 Visa. Today, they have been given a new voice in their home.

US Permanent Resident Card by U.S. Citizenship and Immigration Services (USCIS).Ahkitj at en.wikipedia [Public domain], from Wikimedia Commons

US Permanent Resident Card by U.S. Citizenship and Immigration Services (USCIS).Ahkitj at en.wikipedia [Public domain], from Wikimedia Commons

Although this is a step in the direction of immigration reform, the ability of an H-4 visa holder to apply for an EAD is quite limited and continues to be dependent on the status and position of the H-1B worker. To be eligible, the H-1B spouse must be in the United States for over 6 years, or have filed a petition to change status to a legal permanent resident, known as an I-140 Immigrant Petition for Alien Worker.  The I-140 is filed by the H-1B worker’s US employer.  In addition, there are yearly quotas for EADs available to H-4 dependents.  For the first year of the program, the quota shall be 179,600; for subsequent years, the quota falls to 55,000.

TransLegal is available to help corporations and individuals navigate the intricacies of the US immigration system.  Call us with your questions.

United States Immigration Series Post No. 7

US Immigration Laws Affecting Same-Sex or Gay Marriage

Francisco A. Laguna & Annapurna Nandyal

Today we continue with our series on US immigration laws by discussing the United States’ immigration policy on same-sex marriage (also known as gay marriage).

Currently, same-sex marriages are being hotly debated in the US, and the discussion is likely to intensify as the 2016 presidential elections draw closer.  Until recently, the US denied recognition to same-sex couples seeking to immigrate to the United States and did not confer the same rights and privileges afforded opposite-sex couples.  This was due to the federal Defense of Marriage Act (DOMA) which defined marriage as the union between one man and one woman, thereby preventing same-sex couples from seeking immigration benefits based on marriage.

Though same-sex marriages are legal or recognized in most developed countries, it was only in 2013 that gay marriage was recognized in the US as a result of the US Supreme Court decision in United States v. Windsor, which ended the differential treatment afforded same-sex spouses in matters of immigration and declared DOMA unconstitutional.

"Campaña Iguales Chile 2" by Iguales Chile - Iguales Chile. Licensed under CC BY-SA 3.0 cl via Wikimedia Commons - http://commons.wikimedia.org/wiki/File:Campa%C3%B1a_Iguales_Chile_2.jpg#/media/File:Campa%C3%B1a_Iguales_Chile_2.jpg

Ad for Marriage Equality in Chile “Campaña Iguales Chile 2” by Iguales Chile – Iguales Chile. Licensed under CC BY-SA 3.0 cl via Wikimedia Commons – http://commons.wikimedia.org/wiki/File:Campa%C3%B1a_Iguales_Chile_2.jpg#/media/File:Campa%C3%B1a_Iguales_Chile_2.jpg

 

Today, same-sex marriage is recognized by the federal government and has been legalized in 36 U.S. States and in the District of Columbia. This new federal recognition of same-sex marriage allows same-sex spouses to apply for immigration benefits based on marriage.  The benefits include:

  • If a US citizen or lawful permanent resident (LPR) has a same-sex marriage with a foreign national, then he/she can sponsor his/her spouse for a family-based immigrant visa; and
  • If a US citizen is engaged to be married to a foreign national of same sex, s/he can file a fiancé/fiancée petition.

Besides spouse and fiancé/fiancée visas, same sex couples can also sponsor immediate relatives and are eligible for family-preference immigrant visas.

The US Citizenship and Immigration Services (USCIS) will recognize same-sex marriages performed abroad provided one spouse is a US citizen or LPR, and the marriage was performed in a jurisdiction where such marriages are permitted.

Same-sex couples are now included USCIS’ broad definition of a spouse, and domestic violence victims in same-sex marriages can claim immigration benefits even after leaving their abusers.

Buddist Same-Sex Marriage in Taiwan "Same-sex-marriage-taiwan" by Guy of taipei - Own work. Licensed under CC BY-SA 3.0 via Wikimedia Commons - http://commons.wikimedia.org/wiki/File:Same-sex-marriage-taiwan.jpg#/media/File:Same-sex-marriage-taiwan.jpg

Buddist Same-Sex Marriage in Taiwan
“Same-sex-marriage-taiwan” by Guy of taipei – Own work. Licensed under CC BY-SA 3.0 via Wikimedia Commons – http://commons.wikimedia.org/wiki/File:Same-sex-marriage-taiwan.jpg#/media/File:Same-sex-marriage-taiwan.jpg

For residency requirements, same-sex couples will be treated the same opposite-sex spouses.  The same-sex spouse of a visa applicant coming to US for any purpose – including work, study, international exchange programs or as a legal immigrant – will be granted derivative visas.  Step-children acquired through same-sex marriage can also qualify for immigrant visas.

One important criterion to be met by same-sex couples is that their relationship must be based on marriage: civil union and domestic partnerships do not qualify couples for immigration benefits.

Under federal guidelines, the USCIS will determine the eligibility of same-sex couples for immigration benefits based on whether the place of marriage legally allows gay marriage.  This includes instances where a couple marries in a state within the US that recognizes same-sex marriages but the US citizen or LPR is domiciled in a state that does not.  For example, assume a couple lives in Texas, which does not recognize same-sex marriages.  They get married in New Mexico, which recognizes same-sex marriages and later return to their home state Texas.  USCIS will honor such marriage, and the US spouse is eligible to sponsor his/her spouse for adjustment of status.

US citizens may sponsor their same-sex fiancé/fiancée for a K-1 visa regardless of the state of residence of the petitioning US citizen or the country of residence of the foreign born fiancé. For example, assume a US citizen lives in a state that does not recognize gay marriage.  She is engaged to a foreign citizen who lives in a country that also does not recognize gay marriage.  The US citizen can still apply for a K-1 visa, and the couple must get married within 90 days in a US state where gay marriages are permitted.

Questions may arise when same-sex couples live in a state that does not recognize gay marriage.  The federal government will recognize the marriage, and same-sex couples may apply for federal benefits such as immigration, tax benefits and military spouse benefits.  However, the state will treat the same-sex couple as two single people for tax purposes, and state employment and other benefits for couples may not apply.

TransLegal is available to help corporations and individuals navigate the intricacies of the US immigration system.  Call us with your questions.

India: Legislative Updates

Francisco A. Laguna

 This week, TransLegal begins a series on recent legislative changes in India. In the following posts, we will analyze some of the more significant ones for foreign investors.

 Capital Markets

 The Securities Exchange Board of India (“SEBI”) has revised insider trading regulations. The new rules, contained in the Securities and Exchange Board of India (Prohibition of Insider Trading) Regulations, 2015, enter into force 16 May 2015. One major change introduced by the new rules is that people not in the brokerage sector cannot obtain from an insider, directly or indirectly, any unpublished, price-sensitive information related to a company listed, or proposed to be listed, on an exchange. Insiders are defined as people who have been associated for the prior 6 months with a company that is listed, or proposed to be listed, on an exchange, and who are is in possession of the company’s unpublished, price-sensitive information.

Citizenship Law

The Parliament issued the Citizenship (Amendment) Bill, 2015, which purports to grant the same rights and privileges to persons of Indian Origin as well as Indian citizens living abroad.

Coal Mines Bill

Parliament of India Photo credit: Wikimedia Commons

Parliament of India
Photo credit: Wikimedia Commons

The Lower House of Parliament, the Lok Sabha, approved the Coal Mines (Special Provisions) Bill, 2015. The law seeks to make the process of granting coal mine leases more transparent. The Upper House, the Rajya Sabha, has yet to pass the law. The leasing process has been criticized for lack of transparency and corruption.

Foreign Direct Investment – Generally

The Department of Industrial Policy and Promotion (“DIPP”) is proposing to raise the FDI threshold from 12,000 million rupees to 30,000 million rupees. The Government may increase the threshold at which Cabinet approval for foreign investments becomes necessary, making India a more attractive venue for FDI. The goal is to attract foreign investments, particularly in infrastructure and manufacturing sectors. Currently, investments exceeding the 12,000 million limit require the approval of the Cabinet Committee on Economic Affairs.

TransLegal has advised clients on foreign direct investment regulations in the food & beverage as well as the hospitality sectors.

Foreign Direct Investment – Housing Sector

The Government has relaxed the rules related to repatriating FDI in the housing sector. In December 2014, the Government implemented these new rules by decreasing the required built-up area and capital needs. In March 2015, the DIPP clarified that the existing three-year lock-in will no longer apply, and under normal circumstances, an investor can exit on an automatic basis upon completion of the project or after the construction of basic infrastructure, such as roads, water supply and drainage. The Foreign Investment Promotion Board (“FIPB”) can approve earlier exits on a case by case basis.

The minimum built-up area requirement for development projects has been reduced from 50,000 square meters to 20,000 square meters, and minimum capital investment by foreign companies has been decreased substantially from US$ 10 million to US$ 5 million. In addition, the government has introduced an exemption to the minimum floor area and the capital requirements when an investor / joint venture company commits at least 30 % of the total project cost to low-cost housing.

 Foreign Direct Investment – Insurance and Pension Sectors

 In March 2015, the Indian Parliament passed the Insurance Laws (Amendment) Bill, 2015. The bill raises the foreign direct investment (“FDI”) cap in insurance companies from 26% to 49%. This increased FDI cap directly increases the allowable FDI in the pension sector: the Pension Fund Regulatory and Development Authority Act ties FDI limits in the pension sector to those in the insurance sector. This increase presents important opportunities for foreign companies in both sectors.

National Stock Exchange of India Photo credit: Wikimedia Commons

National Stock Exchange of India
Photo credit: Wikimedia Commons

Import / Export Documentary Requirements 

In March 2015, the Directorate General of Foreign Trade (“DGFT”) issued a notification drastically reduced the mandatory documents required for importing and exporting goods to three (3) documents. For imports, the mandatory documents are: bill of lading / airway bill; commercial invoice / packing list; and bill of entry. For exports, the mandatory documents are: bill of lading / airway bill; commercial invoice / packing list; and shipping bill / bill of export.

Intellectual Property

India’s IP Office now allows electronic filing for new applications for design & geographical indications. Previously, e-filing was only available for trademarks and patent applications.

Labor Law

 The 2015 Union Budget proposes the following amendments to applicable labor laws. First, the government seeks to provide increased flexibility for employee contributions to the Employee Provident Fund (“EPF”). Employees would be allowed to choose to participate in the EPF or a New Pension Scheme (to be developed). The proposal also provides that employees with incomes below certain monthly thresholds would have the option not to contribute to the EPF, without affecting or reducing the employer’s mandated contribution. In addition, the amendments would allow employers to offer employees participation in the Employee State Insurance (“ESI”) or a different health insurance product duly approved by the Insurance Regulatory Development Authority (“IRDA”).

Money Laundering

Presidential Standard of India Photo credit: Wikimedia Commons

Presidential Standard of India
Photo credit: Wikimedia Commons

Amendments to existing laws have been proposed to prevent money laundering. Two independent laws have been submitted to address unaccounted-for monies held offshore and dubious domestic transactions. Persons found to violate the law will be subject to prosecution and steep penalties. To implement these measures, amendments have been proposed to the Prevention of Money Laundering Act (“PMLA”), 2002 and the Foreign Exchange Management Act (“FEMA”). Under the proposed amendments, concealment of income and assets and evasion of tax related to foreign assets will be subject to prison sentences of up to 10 years. Each transaction in violation of the law will be treated separately, and offenders will not be allowed to reach an out-of-court resolution through the Settlement Commission. Those found guilty of tax evasion will be subject to penalties of 300% the tax that would have been paid on the concealed income and assets.

Call TransLegal with your questions concerning Indian laws and regulations and how they may impact your proposed FDI projects.

United States Immigration Series Post No. 6 Glossary of Terms in US Immigration Law

Francisco A. Laguna & Annapurna Nandyal

Today we continue with our series on US immigration laws by providing a glossary of terms.

  1. Admission number or I-94 Form: The I-94 Form is an arrival/departure record issued to foreign visitors entering United States. An 11 digit number found on I-94 is known as admission number.
  1. Advance Parole: A document that allows certain aliens permission to re-enter the US without an immigrant or nonimmigrant visa after traveling abroad
  1. Alien: Any person not a citizen of United States
  1. US Consulate-General in Hamburg, Germany Photo Credit: Garitzko via Wikimedia Commons

    US Consulate-General in Hamburg, Germany
    Photo Credit: Garitzko via Wikimedia Commons

    Applicant: A non-resident alien who is applying for a visa

  1. Approval Notice: A form notice issued by USCIS indicating that a request for a stay extension of change of status has been approved
  1. AOS / Adjustment of Status: A procedure where an individual who has been admitted to the US as a non-immigrant changes his/her status to legal permanent resident
  1. Beneficiary: The individual named in a visa or adjustment of status petition to the USCIS
  1. BIA: Board of Immigration Appeals
  1. CBP / US Customs and Border Protection: The federal agency charged with securing US borders from illegal trade and entry
  1. DACA / Deferred Action for Childhood Arrivals: A program allowing individuals who arrived in US before the age of 16 to remain in the country and apply for a work permit, provided they meet certain criteria
  1. DHS / Department of Homeland Security: DHS is comprised of USCIS, CBP and ICE, all agencies that regulate the flow of immigrants, visitors and workers to the US

 

  1. DOL: US Department of Labor

 

  1. DOS: US Department of State

 

  1. DS-156: Application Form for Nonimmigrant Visa

 

  1. DS 230: Application for Immigrant visa

 

  1. D/S: Duration of status

 

  1. EAD: Employment Authorization Document

 

  1. US Interest Section in Havana, Cuba Photo Credit: Stevenbedrick via Wikimedia Commons

    US Interest Section in Havana, Cuba
    Photo Credit: Stevenbedrick via Wikimedia Commons

    EOS: Extension of Nonimmigrant Stay

 

  1. E-verify: Federally created online system allowing employers to verify a worker’s work eligibility against federal databases

 

  1. Fiscal Year: For the US government, the fiscal year begins on October 1 and ends September 30 the following year

 

  1. I-9: Form I-9 is known as the Employment Eligibility Verification Form administered by USCIS; employers are required to complete a Form I-9 for every new hire to verify the new worker’s identity and work authorization in the US

 

  1. I-20: F-1 / M-1 Student Acceptance Form

 

  1. I-129: Petition for Nonimmigrant Worker

 

  1. I-129F: Petition for Fiancé / Fiancée

 

  1. I-130: Petition for Alien Relative to Obtain Green Card

 

  1. I-131: Application for Travel Document

 

  1. I-140: Petition for Employment-Based Green Card Application for Alien Workers

 

  1. I-485: Application for Adjustment of Status

 

  1. I-539: Application for Change of Nonimmigrant status or to Extend Nonimmigrant Stay

 

  1. US Consulate-General in Istanbul, Turkey

    US Consulate-General in Istanbul, Turkey

    I-551: Legal Permanent Resident Card (Green Card)

 

  1. I-765: Application for Employment Authorization Document

 

  1. ICE / Immigration and Customs Enforcement: federal agency in charge of investigating   violations of immigration laws

 

  1. INA: Immigration and Nationality Act created in 1952, consistING of basic framework of US Immigration law

 

  1. IR / Immediate Relative: Spouses of citizens, children (under 21 years of age and unmarried) of citizens, and parents of citizens 21 years of age or older

 

  1. IV: Immigration visa

 

  1. Labor Certification: An employer needs to file labor certificate from DOL to get permission to employ a foreign national. Based on information filed by the employer with DOL concerning the specific requirements for the position in question and that the employer cannot find a qualified person in the US to fill the position, the DOL issues a labor certification that the alien will not displace US workers or affect the wages or working conditions of US workers.

 

  1. LPR: Legal Permanent Resident, also known as Green Card Holder

 

  1. N-400: Application for Naturalization

 

  1. Naturalization: The process by which US citizenship is granted to a foreign citizen after meeting certain requirements as prescribed in INA

 

  1. NIV: Nonimmigrant Visa

 

  1. PPT: Passport

 

  1. Priority Date: The date when an individual applies for an immigrant visa petition. They must wait their turn “in line” for their petition to be reviewed.

 

  1. RFE: Request for Evidence

 

  1. TPS / Temporary Protected Status: individuals who arrive in the US on a temporary basis as a result of dangerous conditions in their country

 

  1. USCIS / US Citizenship and Immigration Service: The agency of Department of Homeland Security that handles applications for visas, green card and naturalization

TransLegal is available to help corporations and individuals navigate the intricacies of the US immigration system. Call us with your questions.

United States Immigration Series Post No. 5 Fiancé / Fiancée & Marriage Visas to the United States

Francisco A. Laguna & Annapurna Nandyal

For the next two weeks, we continue our series on immigration and visas for the United States. Today, we will discuss fiancé / fiancée and marriage visas.

Foreign nationals living abroad who intend to marry a United States citizen and migrate to the US have two visa options available to them. Option one allows the foreign national to enter United States on a K-1 visa – a fiancé visa – and later, while in the US, marry and apply for legal permanent residency. The second option allows foreign nationals to marry US citizens abroad and apply for an immigrant or nonimmigrant visa after marriage.

US Embassy in Kuala Lampur, Malaysia Photo Credit: Gryffindor via Wikimedia Commons

US Embassy in Kuala Lampur, Malaysia
Photo Credit: Gryffindor via Wikimedia Commons

The different types of K-visas are:

  • K-1: Fiancés or fiancées of US citizens coming to the US for purpose of getting married
  • K-2: Minor, unmarried children of K-1 visa holders
  • K-3: Visa for foreign spouse of a US citizen
  • K-4: Unmarried children of K-3 visa holders

K-1 Fiancé / Fiancée Visa:

The K-1, or fiancé / fiancée, visa is a temporary (nonimmigrant) visa issued to the fiancé of a US citizen that allows a person to enter the US to get married. A K-1 visa requires a foreigner to marry his / her US citizen petitioner within 90 days of entry. In case the marriage does not take place, the foreign national must depart the United States within 30 days of the expiration of the 90-day period to wed.

The requirements to file for a K-1 visa are as follows:

The petitioner must be a US citizen; non-citizens, including green card holders, cannot apply for a K-1 visa.

US Embassy in New Delhi, India Phoyo Credit: Soumya S Das via Wikimedia Commons

US Embassy in New Delhi, India
Phoyo Credit: Soumya S Das via Wikimedia Commons

  • The petitioner and K-1 visa holder must be legally eligible to marry under the laws of the fiancé/ fiancée’s country as well as the laws of the US.
  • The petitioner must have met the fiancé/fiancée within the last 2 years before filing for the visa (this requirement can be waived under special circumstances).
  • The petitioner must be able to financially support the beneficiary.
  • The beneficiary must be living outside US to qualify for a K-1 visa.
  • The visa holder’s main intention for entering the US must be to marry the US citizen / petitioner.
  • The beneficiary may not have a record of past violations of US immigration law.

The advantages of a K-1 visa are that it allows the foreign national to enter the U.S. before the marriage and remain here during the time required to adjust status to legal permanent resident. Technically speaking, the K-1 visa is a nonimmigrant visa, but it actually serves as an immigrant visa. Once in US, the beneficiary can file for work permit to seek legal employment. Though the K-1 visa process is faster than most of the immigrant visas, it can take 90 days, or more, to obtain a work permit.

K-3 Marriage Visa:

US Embassy in Paris, France Photo Credit: Krokodyl via Wikimedia Commons

US Embassy in Paris, France
Photo Credit: Krokodyl via Wikimedia Commons

US citizens who marry foreign nationals abroad and wish to bring their spouses to the United States can apply for a K-3 visa, which is far more preferable than applying for immigrant / green card status from abroad. K-3 visas are for spouses of US citizens who are eligible to immigrate but whose immigrant visa petitions have yet been approved. Same sex spouses are now eligible for K-3 visas. K-3 visas allow entry to the US for two years, pending approval of the spouse’s adjustment of status to legal permanent resident / green card holder. If the petition is not approved in the first two years after the K-3 visa holder’s admission, the visa may be extended by two-year increments until residency is issued.

To prevent fraudulent marriages, the US Citizenship & Immigration Services enforces strict requirements to prove a valid marriage. Requirements for K-3 visa are:

  • The spouse is a legally wedded husband or wife.
  • The marriage entered must be based on love and not for citizenship.
  • The couple must demonstrate joint property ownership, joint bank accounts, joint financial management, etc.
  • The petitioner must have filed certain documents for adjustment of status for his / her spouse with the USCIS before K-3 visa can be granted.

K-1 visa and K-3 visa documentation can be complicated, and the process is document sensitive. TransLegal is available to help corporations and individuals navigate the intricacies of the US immigration system. Call us with your questions.

United States Immigration Series Post No. 4 Temporary Work Visas to the United States

Francisco A. Laguna & Annapurna Nandyal

 Today, we continue our discussion of temporary work visas for the United States, focusing on H-1B visas.

 

US Embassy in Prague, Czech Republic Photo Credit: Kenyh Cevarom via Wikimedia Commons

US Embassy in Prague, Czech Republic
Photo Credit: Kenyh Cevarom via Wikimedia Commons

The popularity of the H-1B visa program has increased tremendously in recent years, resulting in Congressional action to enact temporary and permanent increases in the annual visa cap limits. Currently, there is an annual cap of 85,000 H-1B visas mandated by Congress. Certain numerical limitations are placed on the H-1B visas:

  • 58,200 visas are available for initial H-1B applicants
  • 6,800 visas are reserved for citizens of Singapore and Chile under free trade agreements
  • 20,000 visas are reserved for those with graduate degrees from U.S. institutions
  • No limits apply to the number of visas issued to universities, research institutions and non-profit organizations.
US Embassy in Phnom Penh, Cambodia

US Embassy in Phnom Penh, Cambodia

Each of the H-1B quota above applies to the fiscal year which begins October 1st. Applications for the upcoming fiscal year are accepted on April 1st of the preceding year. So for fiscal year 2016, the US Citizenship & Immigration Service (USCIS) begins accepting applications as of April 1, 2015. Cap limits are reached quickly: in 2014, the USCIS received 172,500 H-1B petitions for the 85,000 visas available. To address this excess interest, the USCIS allocates H-1Bs by using a lottery/random selection system.

Benefits of H-1B Visas

 

US Embassy in Santiago, Chile

US Embassy in Santiago, Chile

Holders of H-1B visas enjoy numerous benefits, unlike most of the non-immigrant visas:

  • Ability to extend their stay beyond the six-year limit in certain situations, for example, getting an employment-based green card
  • No requirement to show ties to their home country and filing for a green card will not jeopardize their visa status
  • Ability to change employers while the H-1B is valid
  • Ability to have more than one US employer, but each employer must file H-1B petition and the petition must be approved
  • Ability to attend school / college part-time or full-time without needing an F-1 visa, provided the H-1B is valid
  • Ability to bring their spouses and children to the US by obtaining individual H-4 visas.

Immigration Executive Action 2014

In November 2014, President Obama announced executive actions to immigration reforms. Part of Obama’s executive action streamlines legal immigration by allowing thousands of H-1B workers to apply for Legal Permanent Status (LPR). Additionally, the spouses of H-1B workers would be able to apply for work permits if certain conditions are met.

We will continue to update our readers on Obama’s executive action as it unfolds.

TransLegal is available corporations and individuals navigate the intricacies of the US immigration system. Call us with your questions.

United States Immigration Series Post No. 3 Temporary Work Visas to the United States

Francisco A. Laguna & Annapurna Nandyal

US Consulate in Shanghai, China

US Consulate in Shanghai, China

Immigrants have long been employed in the United States. Today we are discussing temporary work visas, in particular H-1B visas. An H visa is an employment-based visa which permits foreign nationals to temporarily work in United States.

Before turning to the H-1B visa program, below is a description of different types of H visas:  Continue reading