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India’s Ministry of Home Affairs has released a new Frequently Asked Questions (FAQ) (pdf) concerning work-related visas. As previously discussed, the Ministry issued a separate FAQ on the same subject – business visas and employment visas – in October 2009. The most recent FAQ discusses 22 topics, including:

• the differences between business visas and employment visas;
• both visas’ eligibility criteria, duration, and required documentation;
• whether a business visa can be converted to an employment visa, and vice versa;
• which visas are required for Non-Governmental Organization workers; and
• which visas can be issued to family members of visa holders.

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The State Department has released the September 2010 Visa Bulletin, which summarizes visa availability. Some movement occurred in the oversubscription date (i.e., the date on which the availability quota was met) for employment-based visa categories, including:

• EB-2 (professionals with advanced degrees or persons of exceptional ability): The oversubscription date for Indian and Chinese nationals progressed two months from March 1, 2006, to May 8, 2006.
• EB-3 (skilled workers and professionals): The oversubscription date for nationals of the Dominican Republic and the Philippines advanced six months, from June 1, 2004, to December 15, 2004. A one-month advance occurred for Chinese nationals, from September 22 to October 22, 2003, but there was no movement concerning the date for Indian nationals, which remains at January 1, 2002.
• EB-3 (other workers): The oversubscription date for nationals of China, the Dominican Republic and the Philippines advanced 10 months, from May 15, 2002, to March 22, 2003.

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Computerworld reports that the United States government is reviewing whether the recently-enacted border security law, funded through increased H-1B and L-1 visa application fees for certain foreign-owned companies, runs afoul of World Trade Organization rules, as the law’s opponents and India’s Commerce Secretary contend. However, the issue was only briefly addressed in a recent U.S. Department of State press briefing during which a spokesperson confirmed that discussions about the law were being held between U.S. and Indian officials. Some suggest that the law could increase Indian companies’ U.S. operating costs by $250 million per year.

In a separate article, Computerworld reports that the law has caused rare consensus among H-1B visa advocates and opponents. Individuals on both sides contend that the bill will not create IT jobs for Americans. They suggest that targeted companies—foreign entities operating in the U.S. whose workforce is 50% or more foreign—can easily shift operations to Canada or Latin America. Finally, there are concerns that the fees’ generated revenue is misdirected, and that the funds should be used to spur innovation in the U.S. technology industry rather than to increase law enforcement operations at the United States’ southwestern border.

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During a special session held this morning, the Senate passed a $600 million spending bill (pdf) that will increase law enforcement presence at the United States’ southwestern border with Mexico and will finance additional aerial drones and construction of two operating bases. The Senate passed an identical bill (S. 3721) on August 5 before adjourning for recess, but for technical reasons the Senate needed to approve the version of the bill approved by the House of Representatives on August 10 before sending it to President Obama for signature.

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The State Department has released the August 2010 Visa Bulletin, which summarizes visa availability. Some movement occurred in the oversubscription date (i.e., the date on which the availability quota was met) for employment-based visa categories, including:

• EB-2 (professionals with advanced degrees or persons of exceptional ability): The oversubscription date for Indian and Chinese nationals changed from October 1, 2005, and November 22, 2005, respectively, to March 1, 2006. As previously discussed, considerable movement concerning the oversubscription date for Indian nationals was reported in the July 2010 Visa Bulletin.
• EB-3 (skilled workers and professionals): The oversubscription date for nationals of the Dominican Republic moved from August 15, 2003, to June 1, 2004. For Indian nationals, the date edged forward slightly from November 22, 2001, to January 1, 2002.
• EB-3 (other workers): The previous oversubscription date of June 1, 2001 progressed to January 1, 2002 for Indian nationals, and to May 15, 2002 for nationals of China, Mexico, and the Philippines.

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The State Department has released the July 2010 Visa Bulletin, which summarizes visa availability. The most significant employment-based visa development concerns the oversubscription date (i.e., the date on which the availability quota was met) of EB-2 visas – visas for members of the professions holding advanced degrees or for persons of exceptional ability. The EB-2 oversubscription date for Indian nationals moved from February 1, 2005, to October 1, 2005 since the last visa bulletin in June 2010.

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Daily News & Analysis reports that, in response to criticism over the government’s recent enforcement of a rarely-used 1955 law requiring nonresident Indians (NRIs) who became United States citizens to obtain surrender certificates and pay up to $425 for an Indian travel visa, India has amended its travel rules for NRIs. As a result:

• NRIs who became U.S. citizens before June 1, 2010 will not need to obtain a surrender certificate, but will be required to pay $20 to have their India passport stamped “cancelled.” NRIs who have lost their India passports will need to provide an affidavit and a copy of their U.S. naturalization certificate.
• NRIs obtaining U.S. citizenship on or after June 1, 2010 will be required to obtain a surrender certificate and pay $175.

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India’s “visa on arrival” scheme has proven popular, with 1,793 visas issued in the first three months of a 12-month pilot program, according to The Economic Times. Intended to increase tourism, the program allows citizens of Singapore, Finland, New Zealand, Japan and Luxembourg to obtain a tourist visa upon arrival in India instead of securing the visa beforehand. More than half of the visas were obtained by tourists arriving at the Delhi airport. So far, Singapore nationals have been issued the largest number of visas (642) under the program.

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A “project visa” for foreign nationals working on joint ventures in India continues to be contemplated by the government, according to The Economic Times. The visa would be valid for the duration of a specific project and, possibly, divided into two categories: unskilled labor visas, and skilled labor visas.

India has struggled with employment-related immigration issues over the past several months. Previously, it tightened restrictions on foreign labor to increase employment opportunities for Indian nationals, putting a cap on how many visas would be issued to Chinese nationals working on projects in India. As a result, numerous projects fell behind schedule, particularly power plant construction.

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The Indian government may be relaxing the rules that prevent business visa holders from working in India, according to The Economic Times. For instance, the government is identifying activities within the IT industry for which companies may employ—for limited periods—foreign nationals who do not hold work permits. Although the IT industry, which pushed for relaxation of the rules, applauded the move, it continues to press India to discard rules that limit the number of business visas available and restrict allocation of employment visas to 1% of a project’s total number of workers.

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The Times of India reports that, beginning February 1, 2010, an online application process for U.S. visas will be launched at consulates in India. Applicants will complete applications and answer additional questions online, print out a confirmation page, and then bring the document to a consular office.

Although the global economic crisis caused a decrease in the number of U.S. visa applications overall, student visa applications from India — the United States’ top source of foreign students —was up 9%, from 94,563 to 103,260, in 2009 as compared to 2008.

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Limited slots at Chinese universities and the prestige of U.S. higher education are contributing to an influx of Chinese nationals to American colleges and universities, according to USA Today. An Institute of International Education report found that, compared with last year, enrollment by Chinese nationals has increased 21% to 98,510 undergraduate and graduate students, slightly behind India, which sends 103,260 students.

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The Times of India reports that India’s tightening of restrictions for Business Visas (BV) and Employment Visas (EV) for foreign workers has delayed completion of numerous infrastructure projects. To remedy the situation, the home ministry has proposed a Project Visa (PV) that will allow foreign nationals to work on specific projects, mainly infrastructure and those of strategic importance. Currently the proposal is being examined by a government committee.

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In an effort to boost trade with India, Canada has announced a new visa scheme for business visitors from India, according to expressindia.com. The new scheme will offer multiple-entry visas to Indian citizens, and business visa applications will be cleared within 24 hours. Canada also intends to double the number of Indian students to whom visas will be awarded. The move comes as Canada and India finalize nuclear cooperation and investment protection agreements.

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According to The Economic Times, changes to India’s visa scheme for Chinese nationals has resulted in a substantial decrease in the number of Chinese workers—from 650 to 100—at a power plant project in Mundra. Because of visa issues, the project, which is owned and operated by a consortium of Chinese businesses and is supervised by Chinese contractors, has replaced Chinese workers with Indian workers. Similar staffing changes have occurred at power projects in Haryana and Uttar Pradesh.

Photo Credit: Bert Marshall

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The economic recession has resulted in a growing number of U.S. jobseekers, particularly those at the executive level, seeking (and securing) employment abroad, according to USA Today. Although the number of candidates remains relatively small, the trend reverses a longtime pattern of greater numbers of foreign workers seeking jobs in the U.S. than the reverse.

Recruiters cite India, China, Brazil, Dubai and Singapore as the “hottest” markets. Candidates in the fields of engineering, investment banking, computer technology, manufacturing and consulting are in high demand.

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According to IBN Live, visa applications by Pakistan-born U.S. citizens seeking to visit India will now be processed by authorities in New Delhi, rather than by the Indian embassy in Washington, D.C. or by consulates. Visa approvals had been tightened by the Indian embassy in Washington, D.C.

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The Times of India reports that India has issued a travel advisory in response to the Chinese embassy’s practice of stapling paper visas to passports of individuals from Jammu, Kashmir and Arunachal Pradesh. Indian officials have declared these visas invalid because they do not conform to the usual practice of pasting visas to passports. The advisory reminds Indians traveling to China to ensure that the visas are pasted onto their passports.

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As reported recently on this blog, the Government of India's Ministry of Home Affairs has released guidance on permissible use of Business Visas and Employment Visas by foreign nationals visiting India. This development has significant implications for multinational corporations sending employees to India on short-term assignments. For an update regarding this uncertain legal development based on feedback from companies whose employees have been directly affected by this situation, continue reading Littler's ASAP "India Guidance on Its Visa Regimes May Create Major Change for Companies Doing Business in India," written by Ian Macdonald.

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India's Ministry of Home Affairs (MHA) has released an FAQ (pdf) to clarify the two types of visas available for work-related visits to India: business visas (“B” visas) and employment visas (“E” visas).

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As reported by Business Standard, sources suggest that a new visa is being developed for Chinese nationals working on contract labor projects in India. The move comes in response to Indian laborers' concerns that many projects, particularly those financed and operated by Chinese companies, import Chinese labor instead of hiring locally, thereby negatively impacting the Indian workforce. Although details have yet to be released, the new visa would ostensibly set defined lengths of stay for Chinese laborers and only be issued for specific projects.

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The Business Standard reports that India’s Parliament is expected to propose legislation that will increase criminal penalties for human smuggling in an effort to curb exploitation of Indian workers abroad by recruiting agencies and employers. The proposed legislation is also intended to make the emigration process simple and transparent. Under the new law, recruiting agencies will be required to register with the Emigration Management Authority (EMA), a new body that will replace the Protector General of Emigrants. Moreover, recruiting agencies will be subject to periodic performance reviews and rated by the government. In addition, foreign employers in certain countries favored by Indians seeking employment abroad will need to be accredited before they can hire Indian nationals.

Photo Credit: Dhirad

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The U.S. State Department has announced a travel alert for India. U.S. citizens visiting or living in India are cautioned about possible terrorist attacks throughout India during the country’s current holiday season which also coincides with the anniversary of the September 11th attacks. It has been less than one year since the Mumbai attacks in which hotels and other public places were targeted.

Accordingly, U.S. citizens are advised to:

• be aware of local surroundings;
• maintain a low profile;
• monitor local news reports;
• consider the security level of venues before visiting them; and
• register with the nearest U.S. Embassy or Consulate via the State Department’s website. Those without internet access can register directly at any of the five diplomatic offices.

The travel alert will expire on October 30, 2009.

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Anticipating greater restrictions on H1-B visas, Indian IT firms operating in the United States are considering utilizing NAFTA provisions to avoid staffing shortages. The strategy arose in response to proposed U.S. legislation that would, among other provisions, limit the number of employees on H1-B visas in a company to 50% of its total U.S. workforce. Indian IT firms would be impacted because the majority of their U.S. staff work under H1-B visas. 

As reported by Computerworld, instead of sending Indian professionals to the U.S., they would go to Mexico, and Mexican employees would work in the United States under a TN professional visa, which is easier to obtain than the H1-B. No limit applies to TN visas; they are valid for three years, and they are renewable.

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As reported by The Economic Times, due to an aging workforce and gaps in its IT, engineering, and medical sectors, Australia is encouraging skilled Indian professionals to apply for permanent residency. Indian nationals already comprise the second largest immigrant population in Australia, and currently the country’s medical system relies considerably on Indian healthcare professionals.

Although Australia recently decreased the number of available visas to skilled workers because of the economic downturn, this move is seen as temporary and numbers are expected to increase once the economy recovers. Australian officials note that even at lower numbers it is still running one of its biggest skilled migration programs in years.

Australia is also cracking down on scholastic institutions, particularly vocational schools, that do not provide adequate skills and language training to Indian students. Because a skills test will be required next year in addition to the English language test, the aim is to ensure that international students receive quality schooling that eventually will allow them to apply for permanent residency.

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Due to the rise in H1N1 virus (“swine flu”) carried by foreign visitors, travelers to India must disclose whether they are undergoing treatment for the illness or have shown symptoms, and, if so, they may be quarantined, hospitalized or denied a visa. As reported by Thaindian News, of India’s 340 reported H1N1 cases, 260 individuals caught the illness abroad, 111 coming from the United States.

Although to date no one has been denied a visa, Indian officials are advising that infected persons be cured before applying for a visa. Indian embassies have been issued guidelines concerning visas and the flu which, according to the World Health Organization, has been reported in 135 countries and claimed at least 800 lives.

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As reported by Reuters, Silicon Valley is experiencing a brain drain of foreign-born students, many of whom are returning to their home countries due to immigration hurdles. The very long waiting time for US permanent residency, combined with comparatively attractive job markets in India and China, is driving the trend.

Observers warn that the flow of foreign students out of the United States will eventually damage its high-tech industry competitiveness. More than half of the Silicon Valley start-up companies established between 1995 and 2005 had a founder who was a foreign national. In addition, foreign nationals earn half of the masters degrees and 71% of the doctorates in electrical engineering at US universities.

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A review conducted by Australia’s Department of Immigration and Citizenship regarding the student visa program found that Indian students breached their visa conditions at a rate three times higher than the average breach rate. As reported by The Australian, the review ranked Indian students alongside Bangladeshis and Cambodians as a level-four risk, which is the second highest risk category (no country currently ranks at the highest risk category).

As a result of these findings, rules for Indian students have been tightened: Indian students now must prove they have enough money to support themselves for the duration of their studies and must pass stricter English language tests. Critics of the tightened standards argue that they fail to distinguish between university students and vocational training students (who account for almost 80% of all Indian students in Australia).
 

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Secretary of State Hillary Clinton, speaking before the U.S.-India Business Council, outlined her plans for a “dramatic expansion” in U.S./India relations and touched upon concerns voiced by the Indian IT community and the Indian government that proposed restrictions on the H-1B visa program are a form of protectionism. As reported at Computerworld.com, Clinton remarked that both countries should "work through any issues in our relationships and differences in our perspectives by focusing on shared objectives and concrete results." Meera Shankar, India's ambassador to the United States, stated that India's IT talent has helped U.S. firms become more competitive globally, while also stimulating the U.S. economy by creating jobs and increasing profits.

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Due to the prevalence of fraudulent visas and passports, the Indian government is planning to install magnifying equipment and ultraviolet lamps at all international airports in order to more accurately verify the authenticity of travel documents. As reported by the Press Trust of India, other steps being taken at India’s international airports are the installation of new computer software (to verify passengers’ passport details) and additional training of immigration officers.

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Som Mittal, president of Nasscom, the industry association representing Indian software and IT services firms, recently met in Washington, D.C. with various U.S. government officials and representatives of trade organizations. In an interview with InformationWeek, Mittal stated that he was in D.C. "to provide perspective on the Durbin-Grassley bill," bipartisan legislation aimed at preventing abuse and fraud in the H-1B and L-1 visa programs. Based on his meetings, Mittal said he thinks that the Obama administration and Congress are likely to consider H-1B and L-1 provisions as part of broader immigration reforms, perhaps later this year.

Mittal also noted that, from his perspective, the H-1B and L-1 visa programs should be considered matters of trade policy rather than immigration, stating: “Our data shows that [H-1B visa holders] stay in the U.S. less than two years.” He further commented:

Other countries, including the U.K., France, Germany, Japan, and India provide work permits to bring in foreign workers temporarily. It's not about immigration, it's about trade.

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Under new United Arab Emirates visa regulations effective at the end of July, jobseekers from India, Pakistan, Nepal, the Philippines and Bangladesh, who currently are not subject to visa fees, will have to pay a refundable deposit of Dh1,000 ($272) and secure health insurance while they look for work. One likely result of the new regulations, as reported at portstrategy.com, is a rush of would-be workers in the port of Dubai in the spring and early summer. Another probable consequence is that potential employers and recruitment agencies will need to search abroad to find workers in order to avoid a labor shortage. Anyone found working while on a visit visa can be fined more than Dh50,000 ($13,617) and banned from re-entering the UAE. Employers also will be subject to strict penalties for violations.

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A recent posting to the Bits Blog (hosted by NYTimes.com) calls the bank bailout legislation’s provision discouraging banks from recruiting skilled foreign workers “a political gesture, understandable and probably empty.” The real problem is the great number of “bright, ambitious” immigrants leaving the United States and returning home. This problem is the topic of a report released on March 2, “America’s Loss Is the World’s Gain” (PDF). The principal author of the report estimates that over the next five years 100,000 immigrants from India and China will leave the United States, as compared to 50,000 over the past two decades. Of the 1,203 Indian and Chinese workers who were surveyed for the report, growing demand for their skills and promising career opportunities back home were cited by 87% of the Chinese and 79% of the Indians as the major professional reason for returning.

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