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Ashwin Sharma is an Immigration Lawyer who caters to the special needs of the Indo-American population. He is based in Jacksonville, Florida and represents clients in Florida, Georgia, Texas, Canada, India and the U.K. He can be reached at 904-779-0111 or jaxlawyer@gmail.com.
Click here to visit  Sharma’s new website, www.immigrationfirm.net for detailed information on Immigration topics.

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Get answers to all your Immigration-related questions. Write to us at contact@nripulse.com. Ashwin Sharma will answer each query. All questions and answers will be published in the forthcoming issues of NRIPulse.com.

Immigration Updates, H-1B Consular Processing & H-1B Employer Sanctions for Attestation Violations

Immigration Updates

Immigration reform currently is a hot topic in Washington D.C., with the Senate Judiciary Committee passing a proposal for H-1B & employment-based Immigration relief. Although it was fiercely opposed by some members of the Committee, the proposal passed by a 14-2 vote. The proposal would be a boon for H-1B candidates and their prospective employers by allowing the recapture of approximately 300,000 unused H-1B numbers from previous years. 30,000 additional H-1B visas would be available for each of the next ten years. Applying for one of these 30,000 additional visas would require an extra filing fee of $500.00 in addition to the regular fees. There would be no additional fees for the regular 65,000 quota. This proposal still needs to be passed into law – updates are expected soon.

President Bush is also is touring the U.S. to address the country's critical need for comprehensive immigration reform. His proposed guest-worker program would allow undocumented aliens to obtain a three-year work visas. The applicant could subsequently extend the visa for an additional three years, but would then have to return to their home countries for one year to apply for a new work permit. To appease anti-immigration groups, the President promises of increased border enforcement, no amnesty, accelerating the deportation/removal process, and immediate deportation of apprehended illegal aliens at the border.

H-1B & H-4 Consular Processing Checklist
I am often contacted by individuals who want to know what to bring for their H visa consular processing appointment. It is important to note that a consular officer holds a great deal of power and can prevent you from coming to or re-entering the U.S. Therefore it is wise to arrange a meeting with your employer and attorney to discuss the procedure at length. Additionally, you should try to collect as much of the following documentation as possible:

For H-1B Visas
1. Original notice of approval (I-797), the H-1B petition along with an attorney-authenticated copy of the petition, the LCA and other supporting documents;
2. The originals of the applicant’s university degree certificate and mark sheets;
3. Letter from petitioning employer confirming employer’s intent to hire the applicant;
4. Originals of the applicant’s work experience letters;
5. Pay slips from current or most recent place of employment;
6. Current telephone numbers of the personnel managers at the applicant’s present and past jobs;
7. Provide written directions, utilizing common names and landmarks to the applicant’s present and past jobs;
8. Photographs of the inside and outside of the applicant’s current or most recent place of work; 
9. Names and contact information of two co-workers from past jobs; 
10. A complete resume (bio-data) and cover letter describing current job duties in detail;
11. Personal bank records for the last six months;
12. U.S. company information: photographs of the inside and outside of the company’s offices, prospectus, brochures, and annual report;
13. If the applicant is current working in the United States on an H-1B visa, also submit pay slips for the current calendar year and federal tax returns (IRS Form 1040 and W-2) for all years in which the applicant was employed in the United States; and
14. A complete set of photocopies of the above listed documents. The application will not be accepted without the originals and photocopies.

For H-4 Visas (Dependents of H-1B Visa holders)
1. Birth records of children;
2. Marriage registration certificate;
3. Original I-797 Notice of Approval;
4. Copy of principal’s H-1B petition, LCA and supporting documents;
5. Wedding invitation and wedding photos;
6. All 36 pages of the principal applicant’s passport (if not applying with principal applicant). If a copy of the passport is submitted, it should be a good copy and the photo must be clearly identifiable;
7. A letter from the H-1B company confirming the continued employment of the applicant’s spouse; 
8. Copy of the principal applicant’s work experience letters; 
9. Copy of the principal applicant’s offer of employment with the U.S. company; and 
10. If the principal applicant is currently working in the United States on a H-1B visa, then submit pay slips for the current calendar year and federal tax returns (IRS Form 1040 and W-2s) for all the years in which he or she has been employed in the United States on the H-1B visa.

H-1B Employer Sanctions
It is extremely important for H-1B employers to abide by the H-1B visa program attestations. Often H-1B employers, especially those who complete their H-1B visas in-house, are unaware of Department of Labor & H-1B visa laws that include the benching of employees, requiring employees to pay penalties for early termination and prevailing wage compliance. Ignorance is no defense, however, against Department of Labor sanctions.

A case in point; recently, the Southfield, Mich.-based IT services company Computech Corp. was ordered to pay $2.65 million in back wages and fines to settle a U.S. Department of Labor (DOL) complaint that it underpaid 232 H-1B workers. It will also be prohibited from participating in the H-1B visa program for 18 months under an agreement announced last week by the DOL.

The company was formed in 1996, and the settlement covers violations alleged to have occurred between 1998 and 2000. Within two years of its founding, the company had brought on more than 200 foreign workers. The company failed to pay these workers minimum required wage rates and frequently benched workers, the DOL said in a statement. Benching refers to the practice of not paying workers in between contracting jobs. 

Computech's president, Ram Kancharla stated that the company today has about 400 to 500 employees. He said the company is less dependent on H-1B workers today, but in 1998, there was a shortage of workers with the technology skills in Java- and Web-related work. The company handles ERP implementations, application support and development, and remote database management. It conducts work in India and the U.S. and has more than 200 employees based in the U.S. 

“The Department of Labor aggressively enforces the law to ensure that temporary foreign workers are compensated fully and fairly,” Secretary of Labor Elaine L. Chao said in a statement. “Abuse of the temporary foreign worker program is not tolerated and violators, as this case shows, are vigorously pursued.” A DOL spokesman stated that the settlement may well be the largest back wage payment ordered under the H-1B sanctions program.

Some of the sanctions an H-1B employer can face are:
1. A $1,000 penalty for requiring an H-1B nonimmigrant to pay a penalty to the employer for leaving the job prior to a contracted date. Employer may also be required to return the amount paid to the H-1B nonimmigrant unless the amount is purely liquidated damages.
2. An employer is in violation of the LCA requirement at INA §212(n)(1)(A) for placing an H-1B nonimmigrant in unpaid nonproductive status due to a decision by the employer “based upon factors such as lack of work,” or due to the H-1B nonimmigrant’s lack of a permit or license. A violation will be found for failure to pay full-time wages to a full-time employee, failure to pay a part-time employee the part-time rate identified in the visa petition, failure to pay a new H-1B employee within 30 days of admission, or failure to pay a new H-1B nonimmigrant already present in the United States within 60 days of the date the nonimmigrant becomes eligible to work for the employer. The prohibition against unpaid nonproductive status does not apply to nonproductive time due to non-work related factors such as a voluntary request by the nonimmigrant for an absence like maternity leave or circumstances rendering the nonimmigrant unable to work. The prohibition against unpaid bench time also does not preclude a “school or other educational institution” from paying an annual salary over fewer than 12 months if it is an established practice and the beneficiary agrees to it.
3. A $35,000 fine and three-year prohibition for willful failure to meet an attestation condition, or willful misrepresentation of a material fact in an LCA, in the course of which failure or misrepresentation, a U.S. worker is displaced during the period commencing 90 days before filing the application and ending 90 days after filing the H-1B visa petition. 

Please see Ashwin Sharma’s website at www.immigrationfirm.net for further details

READERS' QUESTIONS

Documents to Carry for Visa Interview

Dear Ashwin,
We are citizens of India.My elder son aged 25 is Masters from Stanford University. My wife and I are permanent residents of USA and we have applied for our son's Green card. My son's employer in California has got him a H1B visa in 2004, but my son must leave USA and re-enter to validate his H1B Visa. He is now planning to go to US Consulate in Toronto to get it stamped there. Our friends tell us that he being a graduate from Stanford in Computer Science and having an H1B visa from employer, he should not have any 
problem in getting his H1B validated. We are anxious. We applied for his H1B in Jan 2005. Do you have any advice on documents that he must carry or other issues for a successful outcome at the Visa interview in Toronto? 
Ravi Varma

Dear Mr Varma,
I recommend that he take the following:
1. Paystubs/W2s
2. Picture of inside/outside h1b sponsoring company
3. Employer cover letter discussing the fact that your son works there and will continue to work there, 
information about their bio, information about other projects and h1b employees. Write a phone number on 
there that the consulate officer can call if need be. 
4. Attorney cover letter (if applicable)
5. Resume
6. Old I-94s, I-797s
7. Discussion of current client job & what he does there.
8 Educational degrees and educational evaluation
Ashwin
_______________________

Dual Citizenship

Dear Mr. Sharma, 
I have been living in the US for the past 31 years and have become a US citizen for the last 20. Would I be able to hold on to my US citizenship status while reinstating my Indian citizenship? If so, I also want to make sure that getting the Indian citizenship will by no means jeopardize my US citizenship in any way. I assume by getting the dual citizenship, I will be able to inherit land and money, buy and sell property in India?
Letha Menon 

Dear Letha,
You will be able to maintain US citizenship. You will be able to inherit and buy (nonagricultural) land and property in India. You should contact the US Indian Embassy in your region (Houston, TX for example) for filing procedures. I believe they are having some confusion in processing dual citizenship on the Indian side currently.
Ashwin
__________________

What is an I-131?

Dear Ashwin,
What is a traveling card which sometimes comes with a work permit? Is it any good? Also, will it be safe to travel with it, for non green card holders, since it is not a green card?
Isha

Dear Isha,
I believe you are referring to the I-131 which can be utilized to obtain approved travel authorization prior to the grant of a conditional Green Card. It can be used to travel abroad while your green card is pending, or 
under other limited circumstances. It can take several months to get once filed for, but is generally safe to travel with.
Ashwin
_________________

Medical Exemptions to Naturalization Test

Dear Ashwin,
I have an elderly parent who is not qualified to write the US examination test for his naturalization. I believe this is due to his problems in learning the language. What are some ways we can overcome this obstacle in gaining my father's citizenship? He has all the other requirements completed. 
Venkat


Dear Venkat,
Your father could have a disability which would constitute a medical exception to the Naturalization test. There are certain types of disabilities/handicaps which allow a person to bypass the citizenship examination. I recommend you speak to a lawyer and also take your parent to a doctor to determine whether you qualify for this exemption. 
Ashwin


Adjusting Status after Marriage to Citizen

Dear Ashwin,

I have a friend who came illegally into America. He recently got married to an American citizen. Can he adjust his status to green card holder after the marriage? He was told by another attorney that is is possible, however, I also heard that it is not possible. 
Smita

Dear Smita,
When an individual enters America without inspection it is not possible for him or her to adjust their status without leaving the country. It is important to distinguish those who 'enter without inspection' (illegal/stowaway/etc) and 'overstays'. Individuals who are overstays, i.e., those individuals who entered the US legally, but who overstayed their visas are eligible to adjust their status in the situation you described. 
Ashwin


Investment for E2 Business Visa

Dear Ashwin,
How much money do I need to invest to obtain an E2 business?
Manuel

Dear Manuel,
The investment requirement is described by the government as "substantial" for the type of business you are developing or buying. You must ensure that you 1. invest at least 80% of the market value of the type of business you are buying/developing and 2. do not secure any loans on the business itself (personal loans are fine). 
Ashwin


INA Section 214(b) issues in applying for Visitor/Student visas

Dear Ashwin,
I wanted to bring my brother over to the US for Diwali, and I sent an invitation letter, but the consulate in Chennai turned him away. What do the consular officers look for in these situations, and what should we watch out for the next time I try to get a visitor's visa for brother or parents? When can I reapply for him? 
Lakshmi


Dear Lakshmi,
Section 214(b) of the Immigration and Nationality Act (INA) states: "Every alien shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for admission, that he is entitled to a nonimmigrant status..." In short, this section of the INA presumes every applicant for a visa to America intends to eventually reside in America. It is the burden of each applicant to demonstrate that this is not the case - that they only intend to visit America for a short duration. In qualifying for B (Visitor) F (Student) or J (Exchange Visitor) visas, an applicant must demonstrate compliance with this section of the law. Most refusals concern the requirement that the applicant possess or maintain a residence abroad that he has no intention of abandoning. Applicants thereby demonstrate that they have ties abroad that would compel them to leave the U.S. at the end of the temporary stay. The INA places this burden of proof squarely on the applicant. (Note that these requirement do not apply to H or L Visa holders who may maintain 'dual-intent'). 

Consular officers have the last word in deciding who may enter the US and evaluate each applicant for a non-dual-intent visa (B, F, J among others) to determine whether the applicant has strong ties abroad. Some examples of ties can be a job, a house, a family, and a bank account. These ties bind you to your home country and demonstrate that you will return after your trip to America. Despite the fact that consular officers attempt to provide a case-specific evaluation, they have limited time allotted to each client. It is imperative that you have a well documented and organized petition which demonstrates the strength of your applicant's case by providing evidence of the applicant's strong ties. Unfortunately, as you can imagine, these requirements are somewhat harder to prove for younger applicants. 

You should also attempt to provide documentation of why the visa applicant is coming to the United States. Temporary trips of a short duration (less than six months) for a specified period of time with a clearly defined start and end date (such as a marriage or graduation) are more likely to be approved. Remember that an invitation letter and evidence of funds of the American 'sponsor' are of limited benefit to the applicant - the consular officer is mainly concerned with the qualifications of the applicant themselves. 

Your brother can attempt to enter the US again since a denial under section 214(b) is not permanent, however, the more times an individual is turned down the harder it becomes to become eligible for subsequent approvals. The consular officer will only reconsider a case if an applicant can show further convincing evidence of ties outside the United States. The applicant's situation must have substantially changed since the last application. Demonstration of strong ties is still key. 

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