H-1B Lottery- What is it?

H-1B Program

H-1B is a temporary non-immigrant work visa issued to foreign nationals by the U.S. government. H-1B visais considered for speciality occupations that require theoretical and practical knowledge in specialized fields such as in IT, finance, accounting, architecture, engineering, mathematics, science, medicine, etc.and at least abachelor’s degree or higher in the specific speciality or its equivalent.

H-1B visas are subject to an annual visa cap consisting of 65,000 H-1B visa regular cap and 20,000 for U.S. advanced degree exemption, known as the master’s cap for each fiscal year. Of the 65,000 under the H-1B regular cap only 6,800 visas are set aside for Chile and Singapore nationals in every fiscal year under the free trade agreement between U.S.-Chile and U.S.- Singapore. Visas unused from this quota become available for H-1Bs for the next fiscal year.

Every fiscal year is from October 1st to September 30th. U.S. employers can begin applying for the H-1B visa six months before the employment start date requested for the applicant.

What is the H-1B Lottery?

The H-1B lottery is conducted via acomputer-generated random selection process once the cap quota is surpassedto select H-1B petitionsof regular cap and the U.S. advanced degree exemption for the fiscal year.

Once the USCIS selects 20,000 petitions from the advanced degree exemption, then all the other advanced degree exemption petitions are counted under the regular cap and, once the 65,000 regular cap is reached, the U.S. Citizenship and Immigration Services (USCIS) announces that cap has been filled and rejects further petitions.

H-1B employees working in the Commonwealth of the Northern Mariana Island (CNMI) and Guam are exempted from the H-1B cap if their employer files their petition before Dec31, 2029.

In FY 2020, the Department of Homeland Security (DHS) announced a final rule amending regulations governing cap-subject H-1B petitions, including those that may be eligible for the advanced degree exemption. This final rule reversed the order by which the USCIS selected H-1B petitions under the H-1B regular cap and the advanced degree exemption, which was put into effect for the FY 2020 cap season. 

Upcoming Changes to the H-1B Cap

The USCIS has recently announced the successful implementation of theH-1B Electronic Registration Process for the Fiscal Year 2021 H-1B lottery. The electronic registration process will make the process more efficient by reducing paperwork and information exchange and will also render overall cost savings to petitioning employers. As per the new process, employers will initially complete a registration process which will require them to provide only basic information about their company and each potential H-1B worker. The USCIS will open an initial registration period from March 1 through March 20, 2020. Subsequently, only selected cases will be eligible to submit their petitions under the H-1B cap.

Previously, petitioning companies were required to submitcomplete H-1B cap petitionsto the USCIS, and the USCIS would then select eligible petitions through a random selection process. This process resulted in voluminous paperworkwhich in turnincurred heavy mailing cost to petitioners and other agencies/firms filing petitions on behalf of the petitioning companies.

Under the new process,employers who are seeking to file H-1B petitions for their employees will have to first electronically register and pay the $10 H-1B registration fee per employee.This process isalso made applicableto those who are eligible for advanced degree exemption.

The USCIS will update the registrants with step-by-step instructions on how to complete the registration process on the website along with dates and timelines as the registration period nears.The USCIS will also conduct public engagements and other outreach activities for registrants and interested parties to ensurethe registrants are fully aware of the new registration process system.

The upcomingchanges to the cap season is causing a lot of anxiety amongst petitioning companies and law firms and further updates are awaited to see how the FY 2021 lottery will pan out.

Rajesh Khandekar

Pitfalls in Indian Employment and Business Visas and How to Avoid them

In 2009, the Ministry of Home Affairs (MHA) in India provided a fairly comprehensive delineation of the regulatory framework relating to business and employment visas.  Rules and regulations on visa categories and in-country registration are issued and enforced by the MHA. Visa issuance guidelines provide a broad framework but each visa application is decided on a case-by-case basis, resulting different determination of visa applications for individuals with similar profiles.

Various acts passed by the Indian Parliament and rules framed by the Central government from time to time regulate the entry, stay, movement and departure of foreign nationals in India. These include the Foreigners Act, 1946; The Registration of Foreigners Act, 1939 and The Citizenship Act, 1955. The Passport (Entry into India) Act, 1920 specifies the requirements for foreign nationals to enter India, such as travel documents or passports.

Depending upon the activities to be performed in India, foreign nationals must obtain an appropriate visa prior to entering the country. Most foreign nationals on an employment visa to India need to complete post arrival registration formalities at the Foreigners Regional Registration Office (FRRO) or Foreigners Registration Office (FRO) of relevant jurisdiction.

Under the immigration regulations, below are various penalties for non-compliance:

Civil Penalties

If an individual fails to comply with the immigration requirements, that is, fails to register with the FRRO or FRO within the time period as stated on the visa, it is considered a violation. If the visa bears the endorsement that “registration is required within 14 days of arrival in India” and the foreign national fails to register within the stipulated time, the penalty fee for late registration is an equivalent of USD 300 for the first 90 days of such violation. If the violation continues beyond a period of 90 days, then the penalty fee is increased for 90-day periods in multiples of USD 300.

Section 3 of The Passport (Entry Into India) Act states that all individuals entering India must do so on a valid passport. Contravention of any rules made under this section (or order issued under the authority of any rule) is punishable with imprisonment for a maximum term of five years or with a fine up to INR 50,000, or both.

Criminal Penalties

Section 14 of the Registration of Foreigners Act, 1939 states that individuals can be imprisoned for a term which may extend to five years and/or fined if they:

·  Remain in any area in India for a period exceeding their visa.

·  Do any act in violation of the conditions of the valid visa issued for entry and stay in India.

·   Contravene the provisions of the Registration of Foreigners Act or any order made under it or any direction given in pursuance of it.

Police officers and other authorities are vested with the power to arrest any person without a warrant who is in India or seeks to enter India without appropriate documents. That person can run the risk of imprisonment for up to three months and a fine, or both under The Passport (Entry Into India) Act, 1920.

Certain other officials (officer of customs and any police or immigration officer not below the rank of a sub-inspector) may even without a warrant, arrest any person and/or search any place and seize any passport or travel document if there exists a reasonable suspicion that the person has committed an offence punishable under the provisions of The Passport Act.

Often companies use business visas for many activities that fall outside those which are permitted. Since enforcement in India is still weak, most businesses “fly under the radar.” As in the U.S., a company can face problems when there is large-scale misuse of these visas. But it is generally the employee that is subjected to penalties for misuse if they are caught. There also have been cases where foreign national applicants have remained in India for too long a period under the visa or worked under the wrong visa and have been denied entry on a business visa, even where appropriate. For example, we are aware of a client’s employee who was asked to leave the country (not deported) the first time that the officers realised she was on the wrong visa. On a subsequent trip, now on an appropriate visa, she was denied entry and deported for the past violation.

Although uncommon, it is possible for the Government to prohibit the company from sponsoring additional foreign national employees. For example, a very harsh enforcement action concerned a company that collaborated to bring several workers into India on business visas and rotated teams to provide for a continuous work force within the scope of the business visa. The company was raided and audited and was then subject to a ban. As India’s economy continues to grow, attracting more foreign workers, the Government is establishing systems to track and control the flow of foreign nationals. The MHA has been implementing, in phases, a centralized border control and immigration compliance technology, the Immigration, Visa and Foreigners Registration and Tracking (IVFRT) with an objective to develop and implement a secure framework that facilitates and tracks foreign nationals visiting and living in India. With the IVFRT, compliance is now more easily monitored and tracked requiring companies to be more vigilant about visa use and status violations.

The IVFRT monitors:

  • Foreign visitors and workers entering the country do so with appropriate visas and continue to remain in the country in compliance with their visa status; and
  • Tracks foreign nationals who have overstayed in the country illegally.

Foreign nationals must note that all entries and departures are recorded in a central database, which is accessible to multiple government agencies. Foreign nationals should ensure that they comply with all the regulations to avoid higher scrutiny/interrogation, imprisonment, monetary penalties, refusal of entry or deportation.

As long as individuals are working under an appropriate visa and are in compliance with the registration requirements on arrival (if any), there are generally no immigration risks. However, frequent travel on business visas may potentially result in denial of admission, visa cancellation, deportation, penalties, sanctions on the employer, ban on employing foreign nations (for severe violations) and/or imprisonment if the violation warrant it (very rarely).

Ashwina Pinto

Practice Pointers when applying for visas for Germany, France and The Netherlands

The Schengen area which comprises of 26 states, facilitates borderless travel for tourist and business activities for non-EU nationals. The visa holder can freely enter, travel and exit the Schengen zone from any of the Schengen member countries.

Countries within the Schengen Zone include: Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland.

Consular Services in India for Germany, France and The Netherlands.

Indian citizens applying for a German, French or Dutch visa must file their visa application with the visa section of the Embassy/Consular Posts or with the respective VFS centers across India. Before applying for a visa, the applicant must first determine the purpose and duration of his or her visit. The visit can either be for a duration lesser than 90 days or for a period exceeding 90 days.

Short-Stay Visa

An applicant who wishes to travel to the Schengen area for study, medical reasons, tourism, business, visiting family or friends, official visit, etc. for a period lesser than or equal to 90 days must apply for a Short-Stay Visa.

In order to apply for a short-stay “C” visa, the applicant must complete the required visa application form, collate all the required documents which includes passport, photographs, documents evidencing his or her socio-economic ties to the home country and financial capability to bear the expense of the trip and proof of travel arrangements. The applicant is required to submit photocopies of these documents. However, the first-time visitors are always granted a single-entry visa even though multiple is requested.

An appointment needs to be scheduled with the nearest Visa Application Centre (VAC). If the applicant intends to visit only one Schengen country, then he or she must submit the application at the respective country’s VAC. If he or she intends to visit multiple countries within the Schengen zone and wishes to spend same duration everywhere, then the application must be submitted at the VAC of the member state where he or she intends to arrive first. If the applicant intends to visit more than one Schengen country, the application must be submitted at the VAC of that member state in which the applicant wishes to spend the longest duration.

On the day of the appointment, he or she must submit the application, pay the visa fee in cash or demand draft, debit or credit card and have the biometrics data taken (i.e. photo and fingerprints).

The VAC officer upon receiving the application packet, forwards the documents with the applicant’s passport to the Consulate or the Embassy for further processing. It is important to note that the visa application may be refused if any requested document is not included. While the visa application is under processing, the applicant is provided with information updates about his or her application from the VAC. However, the VAC is not allowed to inform the applicant whether the application is accepted or rejected. Upon adjudication of the application, the applicant is asked to collect the passport from the nearest VAC, or it is couriered to the applicant if he or she opted for courier facility provided by the VAC.

With respect to short-stay visa processing, the application must be submitted at least two weeks prior to the planned visit; and cannot be submitted more than three months prior to the planned visit. The overall processing time taken to issue a Short-Stay “C” Visa is 15 working days.

Applicants must note that they are allowed to stay a maximum of 90 days within a 180-day period in the Schengen area on a short stay Schengen visa.

Long-Stay Visa

An applicant who wishes to stay in the Schengen area for a period exceeding 90 days must apply for a Long-Stay “D” Visa. The duration of a Long-Stay Visa can be between three months to a year.

Most Long-Stay “D” visa applications require the applicant to submit a copy of the temporary residence permit or authorization received from the Immigration Authorities in the particular Schengen country. The consular process remains more or less the same as the short stay visa. The applicant upon collating the required documents based on the applicant’s circumstances, must schedule an appointment with the nearest VAC. For the appointment, the applicant must carry all the necessary documents and should pay the required visa fees by cash, demand draft, debit or credit card.

If the applicant has submitted a copy of the required approval, authorisation or temporary residence permit along with the application, the visa will most probably be granted within 15 working days. If a copy of the pre-approval was not submitted with the application, then the visa issuance can take anywhere between one and three months.

By Pradnya Sawant

Repatriation – Best Practices

Most foreign nationals on an employment visa to India need to complete post arrival registration formalities at the Foreigners Regional Registration Office (FRRO) or Foreigners Registration Office (FRO) of relevant jurisdiction. The Indian entity that sponsors the visa is required to give an undertaking to the FRRO/FRO on behalf of the foreign national “to ensure good conduct of the foreign national during his or her stay in India.”

The Ministry of Home Affairs (MHA) published a notification making it mandatory for employers to report the termination and/or departure of all foreign nationals working in India[1].

During the course of employment, in case the employer wishes to withdraw the “undertaking for good conduct,” the employer must visit the FRRO/FRO in person along with the foreign national to report and record the withdrawal.  This is likely to happen when an employee has been found to violate a law.

Repatriation formalities must be completed once the foreign national has departed India and does not intend to return to India on the current visa. This formality must be completed at the FRRO/FRO where the foreign national completed his or her in-country registration formalities. It is mandatory to inform the concerned government office about the termination of such a foreign national’s assignment in India to cancel any liability that the Indian employer would have assumed for the foreign national at the time of registration/subsequent visa extension (if any).

Each FRRO/FRO operates in a different manner regarding the repatriation formalities. For instance, at the Bengaluru FRRO, once all the relevant documents have been submitted, the officer will acknowledge/stamp the letter notifying departure of the foreign national as proof that repatriation formalities have been duly completed. However, the FRO in Pune and the FRRO in Chennai are extremely particular about the tax related documents. Once the documents have been submitted, the office will not issue a confirmation letter stating that the repatriation formalities for the foreign national have been complete nor acknowledge the letter notifying departure of the foreign national from the Indian visa sponsoring entity.  Once the FRRO/FRO has been intimated of the foreign national’s final departure, the Undertaking of the employer stands cancelled.

In addition, all foreign nationals leaving India must go through an immigration process at the airport where an official will check the foreign national’s passport and visa.  If the foreign national is departing from India and does not intend to return on the current employment visa, he/she must relinquish the Residential Certificate/Residence Permit (certificate issued by the FRRO/FRO when the applicant registered upon arrival in India) to the immigration officer at the airport.  If questioned about the relinquishment, the foreign national should clearly state that there is no intent to return to India on that visa and hence the Residential Certificate/Residence Permit is being turned in.

Sandhya Maggidi

[1]https://boi.gov.in/sites/default/files/ForeigD-FRRO_version223.6.11.pdf  (accessed on December 23, 2019)

1 2 3 4 5 31