The Elephant in the Room

Discrimination in Immigration!  You’re are kidding, right?

I have been reading about double digit denial rates for L1B visa applications from India.  The denial rate for L1B ‘specialized knowledge’ workers out of India is 56% while for Mexico and China it is 22% and 21%.  L1B visas are issued for intracompany transfers from an affiliate or branch to the US Company.  ‘Specialized Knowledge’ requires a worker to have specialized skills about his company’s product. For an Indian applicant who is usually a software engineer that seems to be an insurmountable hurdle for more than half the applicants!   The current standard of adjudication has been drifting upwards.  Now a company needs a ‘star’ employee with astronomical specialized knowledge to be approved.

Many top Fortune 500 companies outsource their technology needs to other companies.  These other companies have operations which run in a 24 hour cycle.  While the US sleeps the work is carried on in China and India.  Now the company wants to bring some of its overseas employees from China and India for some face to face time to promote synergy between the overseas team and the US team, run a ‘SCRUM’ operation, and improve US business profits.  These workers have specialized knowledge of the company customized software built on a platform that is universally available in the US, but these employees are not ‘stars’. The same application has a 50% chance of denial by either USCIS or the US consulate in India and a 21% chance of denial for China.  The only losers are US businesses!

What can we do?

  • File applications for employees who are more senior in the company and have more specialized knowledge about the company’s process, technology or other matter.
  • Document, document, document! the application with every training at every international branch, leadership position in the company, and knowledge based expertize.
  • Then Pray!

Nalini S Mahadevan Esq

nsm@mlolaw.us

314 374 8784

Not meant as legal advice!

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Indian PIO cards are no longer valid

The Government of India issued new regulations on 9th January, 2015 that existing PIO (Persons of Indian Origin), were no longer valid.  Instead PIO holders would be considered (deemed) OCI (Overseas Citizens of India) holders.

Foreign Spouses of current or prior Indian citizens can obtain OCI status after two years of marriage.

Nalini S. Mahadevan, JD, MBA

Attorney at Law

Contact us for new visa filings at nsm@mlolaw.us.

This blog is not intended to create an attorney-client relationship. The information contained is strictly for informational purposes only.

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I Lost My Indian Passport — Help!

Recently, I have been getting referrals from clients about losing their passport from India. Now, losing an Indian passport is a greater deal than losing your US Passport, because there is an established procedure for recovery and reissue of a US Passport.

But recovery and reissue of an Indian Passport is another matter.

The fear of clients who contact me is that they will be turned into either ICE or USCIS because they are out of service. The good news is that there is now a procedure to reapply for a lost passport. However, it is complex.

In my experience, there is a better procedure if your application is filed as a walk-in rather than mailing in the application.

The next complexity is added because the Indian consulate does not update their website often. The result is that the information on the website is often unreliable or out of date. If my client is traveling from outside the consulate area, then I suggest planning the trip in advance to allow for contingencies, such as insufficient paperwork.

Contact us for further information.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney St. Louis, Missouri
nsm@mlolaw.us

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The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Copyright 2014. All rights reserved.

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Using an L Visa to Open a New US Office

Opening a New Office in the US

I often get asked this question from callers anxious to start a new business in the US, “I have a thriving business in (fill in the name of the country) — a large part of my business is in the US. I want to start a new office there. How do I start a new office?”

Have a US Connection

The new US office must have a corporate relationship with your foreign entity abroad, where you have been employed as a manager, executive or worker with specialized knowledge. This means that the new US office must be a parent, affiliate, subsidiary or branch of the foreign entity, and that both the US office and the foreign entity must continue to share common ownership and control.

Demonstrating a Relationship Between the Foreign and US Offices

Here are some examples of how a relationship can be demonstrated between the US and foreign office:

  • Articles of incorporation showing common ownership of the US and foreign entities
  • Business licenses or other documents showing common ownership of the US entity
  • Annual reports describing the corporate structure
  • Contracts or other documents detailing the affiliate relationship
  • Corporate filings in the US or abroad, describing the corporate relationship
  • Any other evidence demonstrating ownership and control over the US and foreign entities (i.e., stock purchase agreements, voting rights agreements, capitalization table, term sheet) 

Demonstrate Foreign Employment as a Manager, Executive or Specialized Knowledge Worker

Examples of your foreign position:

  • Organization charts showing your position
  • Patents or other evidence of the company’s technology, products or services that are based on your work
  • Performance reviews
  • Loans/financing on behalf of the company
  • Organizational job descriptions for your position and those positions that reported above and/or below you, if applicable
  • Resume describing your job accomplishments
  • Pay stubs
  • Evidence of work product
  • Payroll records
  • Tax returns that show employment

The New Office Must be Operating Within One Year

The “new office” L-1 visa is meant to facilitate a “ramp up” period for a new US office of a foreign entity. This period is limited to one year. After that time, an extension of the L-1 visa is available if the new office meets this requirement. What makes an office active and operating will differ depending on the nature of the business. Typically it will involve factors, such as hiring additional employees, fulfillment of contract orders, having a revenue stream, or holding inventory, if applicable.

The New Office Must be Able to Support a Full Time Manager or Executive

While a new office may be opened on an L-1 visa by someone working within your organization in a managerial, executive or specialized-knowledge capacity, after one year the office must be sufficiently active to support a manager or executive. During the first year ramp up, a manager or executive may be required, as a practical matter, to engage in many “hands-on” tasks that go beyond inherently managerial or executive tasks. After the first year, however, the manager or executive will be required to focus primarily on managerial or executive tasks in order to obtain an extension of the L-1 visa.

Examples of Evidence of a New Office are:

  • Purchase orders, contracts or other evidence of commercial activity
  • Payroll records for employees hired
  • Bank statements
  • Financial reporting documents showing monthly income
  • Continued venture capital or other third party investment contribution based on achieved milestones
  • Media coverage of the business
  • Position descriptions providing the roles and responsibilities of all current employees, or other evidence which clearly demonstrates how the manager or executive is relieved of non-qualifying duties

The Takeaway

New office L-1 visas are usually granted for one year to qualified applicants. The denial rate in India is generally about 25%. There is a general belief in both the Department of State and USCIS that the incidence of fraud is very high in India, due to the falsification of evidence and supporting documents.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2014. All rights reserved.

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Visiting India

India is a very beautiful, colorful place–but like many countries, tourists must apply for a visitor’s visa in order to gain entrance. A foreigner is only granted a tourist visa if he/she does not possess property or a job in India, and whose only goal is recreational: sight-seeing and meeting friends and family.

Apply by Mail

To apply by mail, applicants should fill out and print the application with all the required documents. Send it through a carrier with trackable mail: FedEx, UPS or USPS. Applications sent by mail will take 7-9 business days to process. Once the India Visa Center receives an application, they will notify the applicant of receipt via email and attach an individualized URL that allows the applicant to check on the status of his/her application.

Apply in Person

To apply in person, visit the nearest India Visa Center; bring all required documents and a completed application.

Same Day Visas

Sam day visa applications for US-born US citizens will only be accepted in person by appointment at the India Visa Center. Applicants can choose an appointment time when filling the online application, and will need to pay the application fee in cash or by money order.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

Tara Mahadevan

Copyright 2012. All rights reserved.

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OCI

Are you of Indian origin? I mean the Indo-American kind from the subcontinent, not American Indian, like my daughter’s 5 year old friend asked. If so, you are probably interested in visiting or staying in India past the 180 day limit and/or want to visit multiple times in the space of 60 days. Currently, India does not allow you to travel to India on a visitor’s visa, unless there is a space of 60 days between visits. So the solution for you is ‘Overseas Citizen of India’ card, with which you can visit as many times as you want and stay past 180 days without checking in with the local police station. Do you qualify for an OCI card? You may if you have traceable ancestry to India. If you are first generation immigrant with foreign citizenship, you are eligible for OCI. Your parents, or grandparents must have been Indian citizens. Minor children can get an OCI if their parents have an OCI; if the parents hold foreign citizenship, then the minor children can obtain PIO cards. Why do I want an OCI card? If I want to practice my profession in India, or visit India multiple times or for a prolonged stay, then I want an OCI card. You can become a full fledged Indian citizen after you establish residency in India for 1 year, if you have held the OCI status for preceding 5 years.

I was an Indian citizen, but I don’t have my Indian Passport? A question I will answer in my next entry.

See you in my next post.

Nalini S Mahadevan, JD, MBA

Attorney at Law

www.lawyersyoucantalkto.com

Copyright 2010.  All rights reserved.

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