The document is divided into three sections based on the category of the visa - B1, B1 in lieu of H1 and L1.

Transcription

1 The purpose of this document is to aggregate and circulate the Indian IT Industry s understanding of the various US visas categories and the criteria that govern them, within the context of the IT consulting industry. The objective of the document is to assist in bridging gaps in the understanding of visa criteria between technology companies that apply for the US visas and the US Counselor officer(s) that grant these visas. The document is divided into three sections based on the category of the visa - B1, B1 in lieu of H1 and L1. I. B1 Business visa The definition of the B1 visa as per US Government is: B-1 Temporary Business visitor You may be eligible for a B-1 visa if you will be participating in business activities of a commercial or professional nature in the United States, including, but not limited to the following activities: Consulting with business associates Travelling for a scientific, educational, professional or business convention, or a conference on specific dates Settling an estate Negotiating a contract (including conducting the requirement analysis) Participating in short-term training Transiting through the United States: certain persons may transit the United States with a B-1 visa Deadheading: certain air crewmen may enter the United States as deadhead crew with a B-1 visa Eligibility Criteria You must demonstrate the following in order to be eligible to obtain a B-1 visa: The purpose of your trip is to enter the United States for business of a legitimate nature You plan to remain for a specific limited period of time You have the funds to cover the expenses of the trip and your stay in the United States You have a residence outside the United States in which you have no intention of abandoning, as well as other binding ties which will ensure your return abroad at the end of the visit You are otherwise admissible to the United States Possession of a round-trip ticket is preferable More details are available at: a3210vgnvcm100000b92ca60arcrd&vgnextchannel=cf6d83453d4a3210vgnvcm100000b92ca60arcrd Salient points No limitation of minimum period prior employment with the company. The travel should be for a short and limited period (maximum of 8 weeks with prior approval from Immigration head Activities permitted under this visa *Knowledge Transfer (KT) Pre-sales activities Requirement Gathering Seeking orders for projects to be completed outside of the country Difference in opinion on the activities that can be performed in the US Once the MSA is signed, many customers do not provide invitation or support letters as the expenses are sponsored by the Indian 1

2 exceptional cases only) The employee must not receive any salary from a U.S. source Salary will be paid only by their foreign (Indian) employer Applicants must show strong professional, familial and financial or other ties, which indicate a strong inducement to return to the country of origin Conduct market research Participate or lead training, but not on-the-job training Participate in professional or business conventions, conference Scoping of application Studying applications Presentations to customer / project team Conducting due diligence for the project Proposal defense Meetings & discussions Negotiate contracts with customers Take orders for projects to be completed outside of the country company. At times applications are being rejected due to lack of an invitation letter, even though the employer has provided the sponsorship letter. Sometimes the visa is rejected because the employee has recently joined the firm. We would appreciate if the recent lateral hires who have required necessary expertise be allowed to travel *KT: Knowledge Transfer is similar to training where employees meet their peers at the client s premises to understand and share the technical aspects of the project that need to be executed from offshore. This is not referred to as training as it does not aim to facilitate certifications or learning points. KT can be mutual in the sense that the sharing of knowledge could be from either teams. Request Clarity from US Embassy / Consulates on the activities that can be allowed and their applicability to different scenarios, particularly those relevant to IT services firms. II. BI in lieu of H1 Regulatory Authority: 9FAM Section 41.31, note 11 (B1 in lieu of H1) Salient Points Activities permitted under this visa category Short term assignment not exceeding 180 days Software Development Project is global in nature, and Implementation benefit of employee s activities Design will accrue globally Testing Applicant holds a US Enhancements bachelor s degree or equivalent in a related field Plan to perform H-1B-caliber work or training will be paid only by his/her foreign (Indian) employer, except reimbursement of incidental travel costs such as housing and per diem. Will be paid only by their (foreign) employer, except for reimbursement of incidental Examples: This option is often used in situations for security or logistical reasons; work that would normally be done offshore can be done in the US. Situations like this would include, Testing applications for an investment house that will not permit their customers Since this is not a separate visa category, not all visa or CBP officers are aware of this regulation and at times deny visa or entry Consulate should clearly communicate if they are not willing to promote this category if it is conflicting with any other regulations 2

3 travel costs, such as housing and per diem. The employee must not receive any salary from a U.S. source. The task can be accomplished in a short period of time Employees should have eligibility similar to H1. Billing is for the project and not for individual efforts. Billing cannot come to client from U.S. office of Indian employer. Maintenance and support may not be appropriate for this category. Recommendations data to be removed from their site Another instance might be performing silicon verification testing which must be done on large, very expensive equipment that is only available at the client site Such testing should be short in duration Only certain Customs and Border Patrol agents at Ports of Entry are aware of this provision. It is important that all of them are informed and trained about this category III. L-1 Intra-company Transfer Petition can be filed with USCIS directly (referred to as Individual Petition ), when a blanket L-1 petition is not available to the firm. Entities having over 1000 employees and certain revenue or prior L-1 filing # s were granted a Blanket petition by USCIS where the firm can process the I-129S petition and apply directly with the consulate in India after reviewing the employee s eligibility. The 2 categories under the L intra-company Transfer are: L-1A Managerial and L-1B Specialized Knowledge Professional. Note: Under section 101(a) (15) (L) of the Act, an alien who within the preceding three years has been employed abroad for one continuous year by a qualifying organization may be admitted temporarily to the United States to be employed by a parent, branch, affiliate, or subsidiary of that employer in a managerial or executive capacity, or in a position requiring specialized knowledge. L-1B Specialized Knowledge Professionals An individual who has completed one year (outside USA) within preceding 3 years in the company and possesses specialized knowledge is eligible for the visa. More information is available at: a3210vgnvcm100000b92ca60arcrd&vgnextchannel=bfd10b89284a3210vgnvcm100000b92ca60arcrd 3

4 Salient points Specialized knowledge means special knowledge possessed by an individual of the petitioning organization's product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization's processes and procedures Supervisory authority to remain with the petitioning company. Cannot report to client manager. Can work from the client premises as long as the employee is supervised by the petitioning firm s Project Manager. L-1B visas should not generally be used for entry level employees. An L-1B visa could also be appropriate for someone who has many years of experience in common technologies. Many times these people combine their knowledge of these technologies with in-depth knowledge of a particular domain or client environment. A good example of this would be the legacy mainframe technologies that are still in some of the institutional companies like General Motors and some of the old banks. Another example would be a consultant who does enterprise solution design using existing technologies. These people are considered to be the experts in those technologies and they know how they can be integrated into environments with other technologies that would normally not be compatible. IT or Consulting Services Company, may not have tangible products or tools to highlight, but may have customized frameworks, methodologies, processes which can be unique and proprietary. The fact that some L1 employees may have an Indian salary component should not be a reason for refusal Similarly some companies have lateral hires that are domain experts and having technical expertise for the specific competency/industry. Completion of one year with the firm should fulfill the requirement of getting trained into the internal and advanced methodologies of the petitioning firm so having only one year with the company also should not be a show stopper. Functional experts or graduates with Computer Science/ IT / Mechanical degree/diploma/ certificate with necessary experience should also be considered under this visa category with added training with the sponsoring firm for one year As long as we can establish indicia of employment where the supervisory authority of an L1B visa holder is with the manager of the petitioning firm, there is no restriction that employee cannot work from the client premises. In large projects, there could be multiple employees holding specialized knowledge on processes, methodologies, tools and techniques. In such scenarios, more than one employee can be sponsored for an L-1 under the specialized knowledge. The employee can use the same tool / technologies in different aspects of the Software Development Life Cycle (SDLC). Unfortunately, the Visa Officers are not always aware of the SDLC and the business model, leading to different interpretation of the applicability of the specialized knowledge. IV. L-1A Managerial More information is available at: VgnVCM ca60aRCRD&vgnextchannel=64d34b65bef27210VgnVCM ca60aRCRD 4

5 Salient points Manages an Organization, Dept, Function or component of an Organization like a JV or a Subsidiary. Supervises and controls the work of other employees or managers or a function within the organization like HR, Marketing, Project or Relationship Management etc. Has the discretionary authority to Hire and Fire resources, conduct performance appraisals and allocate work to sub-ordinates. Has decision making authority for the function managed Exercises wide latitude in discretionary decision-making Employees eligible under this visa category An individual who completed one year (outside USA) within preceding 3 years; Either a functional or a people manager. Demonstrate the authority with an Organization Chart giving the employee hierarchy. Over 8+ years of experience and preferably with some management certifications similar to PMP (in case of Project or Program managers). 5