ImmiLetter Vol. I – Issue 3: November 1, 2006


In This Edition

Know-How
· Featured Article: Cross-Chargeability Issues in Applying for Admission for Permanent Citizenship to US
· US Takes Initiative to Streamline Visa Processing in India
· DOL Extends RIR Conversion Eligibility Date
· November 2006 Visa Bulletin: Schedule A Reaches Cap

Can This Happen To Me?
· Tips for F1 Visa Interview
· Tips for H1B Visa Interview

What Lawyers Are Not Telling You!
. Cross-Chargeability Can Be Used to Avoid Delay in I-140 Processing

Dear Readers,

We at Immitips.com would like to thank you for bearing with us, as we fine tune and smooth out the kinks in our newsletter. As it is with new projects and ideas, we are still going through trial and errors, glitches and goof ups. We won’t bore you with the gory details. But we promise you we will come up with the best newsletter on Immigration Matters.

And we would like your help with that. What would YOU like read about? What topics are relevant to you? What questions and doubts should we address? Yes dear readers, we want to know WHAT YOU WANT TO KNOW.

So, help us help you by sending in your suggestions to tipme@immitips.com

Know-how

Cross-Chargeability Issues in Applying for Admission for Permanent Citizenship to US

By rule, aliens applying for Permanent Citizenship to the U.S. are “chargeable” to the country in which they were born, with certain limited exceptions. Therefore, a beneficiary who is a citizen of Canada but was born in India will be considered “chargeable” to India and not Canada. Consequently, the beneficiary will be subject to the cut-off dates established for India and get delayed.

Cross-chargeability as defined by INA

There is a possible way out of these backlogs for some of these individuals. According to Sections 202(b) (1) and (2) of the Immigration and Nationality Act (INA), a derivative applicant (an alien who is accompanying his or her spouse or parent to the U.S.) may be charged to the country of which the principal applicant (spouse or parent) is a citizen, if it would be beneficial to do so.

For example, consider a situation where an EB3 I-140 beneficiary was born in Uganda, while his wife and child were born in India. If India has a cut-off date and EB3 visa numbers are current for Uganda, the wife and child can accompany the principal applicant to the U.S. and be counted against the number of EB3 visas available “worldwide” rather than against India.

Cross-chargeability as defined by FAM

While aliens who apply for adjustment of status in the United States are subject to the rule as outlined in the INA, aliens applying for immigrant visas using consular processing are instead governed by the cross-chargeability rules in the Foreign Affairs Manual (FAM).

The FAM is more expansive in its interpretation of cross-chargeability. It allows not only for derivatives to be charged to the country of the principal applicant, but for the principal applicant to be charged to the country of the derivative applicant as well.

Thus, for example, an EB3 I-140 beneficiary who is from India and marries a Ugandan citizen can be charged to Uganda if his/her priority date is current according to the cut-off date, if any, worldwide. Note that this option is only available if the applicant uses consular processing.

While technically, adjustment of status applicants should be governed by the INA provisions, AILA has successfully persuaded USCIS offices to apply the Department of State (FAM) cross-chargeability rules to adjustment of status applications.

However, there are no guarantees that this would work in the adjustment of status setting. While the cross-chargeability provisions in the Immigration and Nationality Act and in the FAM will not help everyone, they may provide some relief for applicants who were born in different countries from their spouse or children. Copyright © 2006, Immitips.com. All Rights Reserved


US Takes Initiative to Streamline Visa Processing in India

The US Mission in India has initiated a number of steps, including taking the application process online and increasing manpower and other facilities to combat the increasing complaint against the countries slow visa processing system in the subcontinent.

In the past few years the US mission in India had been staggering under the increasing demand for visa. The facilities in place were inadequate to service the load put on them. Facing the reality that the US mission was garnering a bad reputation due the increasing backlog and long wait for Visa interviews, the US Ambassador David Mulford, along with the newly appointed US Consul General in New Delhi Peter G. Kaestner initiated several steps to streamline the visa process.

Visa Application Online: How Does It Work?

Under the new system, applicants can log on to www.vfs-usa.co.in and fill up the e-form available online and submit it online and get an interview date immediately.

On submitting the form, the applicant will be provided with a receipt with a bar code diagram on it. The applicant needs to print this acknowledgement and take it with them to the consulate during interview. The Embassy will then scan the bar code to authenticate the application and pull up all relevant documents then and there.

For people who already have put in their application on paper and have dates later then six months, the website provides options for adjusting the date against cancellation. The applicant will need to monitor the website for cancellations and move the interview date early when the system shows an interview date available because of cancellation.

Business Executive Program (BEP) Being Expanded

The US Mission is also working to expand its Business Executive Program (BEP) under which visas of company employees are processed on priority basis. The expansion will allow more companies to avail this facility.

The Mission is already communicating with Indian business chambers like FICCI, CII, NASSCOM and Indo-American Chambers of Commerce etc to draw up a list of companies who should be entitled to the BEP facilities.

5th US Consulate in Hyderabad by 2008

After months of hints on the issue, sources within the US Embassy have finally confirmed that Hyderabad will definitely have its own consulate as early as 2008. This will make it the 5th US Consulate in the country. The others are in Chennai, Mumbai, Delhi and Kolkata.

According to the US Consul General, the consulate in Hyderabad will process 125000 to 140000 visa applications a year. Last year alone, the state accounted for 20 percent of the 400000 visas issued by India.

Consulates Gear Up to Cut Backlogs

The US Consulate General in Mumbai has flown in equipments and qualified people to handle the backlog in visa. Currently there are 40,000 visa applications pending in the Consulates around the country.

As part of the initiative, the consulate is increasing the number of windows and working in shifts to service additional applications. The Consulate will also open every alternate Saturday very soon. Plans are being made to shift the Consulate from its cramped quarters in Breach Candy to Bandra Kurla Complex by April 2008.

The Chennai Consulate, the current busiest post in the country is adding 30000 more visa appointment slots for the current year. Copyright © 2006, Immitips.com. All Rights Reserved


DOL Extends RIR Conversion Eligibility Date

On October 6, 2006, the U.S. Department of Labor (DOL) issued a notice extending the time limit set on Traditional Labor Certification Cases that can be converted to Reduction in Recruitment (RIR) cases, by allowing applications filed before March 28, 2005 (The date on which the PERM program was launched). This extension has been made in an effort to clear all backlogged labor certifications September 30, 2007. Previously, the eligibility date for RIR conversion was set for

In essence, RIR conversion allows employers to convert their existing regular labor certification cases to the more efficient “reduction-in-recruitment” (RIR) process, while retaining the original priority date. However, labor certifications cases that already have a job order initiated through the BPC cannot be converted to RIR. The regulations for RIR conversion were published in the Federal Register on August 3, 2001.

Why RIR was introduced?

Previously, under the “Traditional Recruitment” (TR) process, employers had to test their local labor markets for available, qualified U.S. workers under the supervision of DOL. This had created a huge backlog of Labor Certification cases. The DOL’s answer was to instruct the employers to conduct their own recruitment and present proof of its recruitment drive (newspaper ads etc.) within the six months prior to filing.

On August 3, 2001, DOL officially establishing the process for converting TR cases into RIR cases, for cases filed before that date. Under the RIR process, the employer conducts its own recruitment efforts without supervision from DOL. The Department merely reviews these efforts and the outcome, which must meet DOL standards. Essentially, it saves the DOL a lot of time.

However, the backlog continued to build for cases filed after the eligibility date for RIR cases, forcing the DOL to consider the extension of RIR deadline.

How the process works?

If the employer has conducted recruitment through advertisements, job fairs etc. right after the regular Labor Certification case was filed, but before the State Employment Security Agency (SESA) had issued advertising instructions, the employer will then be able to submit its recruitment efforts to the SESA as evidence of recent recruiting. This documentation will then allow the case to be converted to RIR processing while retaining the original priority date.

The conditions that need to be met for RIR conversion are:

(a) The employer must have filed a permanent LC on or before March 18, 2005

(b) The SESA is yet to issue job order number or advertising instructions

If this conditions are met, then a Notice of Posting will have to be filed along with a request for RIR conversion, proof of recruitment effort in the six months prior to the request and a letter stating the reason for requesting RIR e.g. shortage of applicant etc.

Employers can also re-apply for previously rejected RIR cases, by filing as regular cases and then requesting for RIR conversion. However, a RIR case which has been rejected twice will need to be processed under the TR process. Copyright © 2006, Immitips.com. All Rights Reserved

For more information, read the FAQ (http://workforcesecurity.doleta.gov/foreign/pdf/backlog_faqs_10-06-06.pdf) published by the DOL.


November 2006 Visa Bulletin: Schedule A Reaches CapThe November 2006 Visa Bulletin finally put end to speculations about the Schedule A numbers. The cap of 50,000 for Schedule A workers has been reached and a cut off date of October 1, 2006 has been set. Among other news, the bulletin records forward movement in some employment-based (EB) cases, but mostly cases show no movement at all.

  • EB1 Remains Current – The EB1category includes persons of Extraordinary Ability, Outstanding Professors / Researchers, and Multinational Executive Transferees etc. This category remains current for all countries.
  • EB2 cut-off date moves forward- The EB2 category cut-off date for Indians moved forward by six and a half month to January 1, 2003. This was the cut-off date set for Indians in EB1 category in July 2006, just before they became unavailable.
  • EB2 Cut-off date unmoved – The EB3 category cutoff date for persons born in India remains at April 22, 2001.
  • Other Workers Category Moves Forward – The cut off date for the “Other Worker” category moved forward for all countries by four months, to May 1, 2001.
  • Schedule A Workers – The Schedule A category reached its limit of 50,000 and has been retrogressed to October 1, 2005. The DOS expects this category will disappear by December 2006 and the Schedule A cases will again be counted as regular EB3 cases, unless new regulations are effected.

Predictions

As the forward movement in the cut-off dates allow more cases to be processed, the DOS predicts that many categories will come to stop or retrogress further during this fiscal year. Copyright © 2006, Immitips.com. All Rights Reserved

Can This Happen To Me?

Responding to queries from our reader’s, on our November issue we will devote this section to tips for H1B and F1 Visa Interviews.

People are often nervous about Visa Interviews. More often as they are told all the horror stories of arbitrary rejections and everything that could go wrong by friends and colleagues. However, from our experience, we have seen that lack of preparation is the most common cause for problems in Visa interview.


Tips for F1 Visa Interview

Our Suggestion: Reassure the consular officials by talking about the things that tie you to your home, like family, property, employment.

Here are some specific suggestions to help you prepare for your visa interview:

1. You need to know and show what you will do with your degree from a U.S. institution (or, if you want to attend an English language program, with your better English) when you return home. You need to have good (plausible) future plans in your own country.

2. It is often very helpful to have a job offer–in writing– from an employer in your home country promising you a good job or a higher position in the company WHEN YOU RETURN FROM THE U.S.

3. You should know what the job situation is in your field in your home country. With a little research you can find out what the job prospects are. The U.S. consular officials will know about these things, too. It’s usually better for you if you can show that you will have good job prospects in your home country after finishing your program in the U.S.

4. You should practice for the interview with friends. The practice interviews should be no more than three minutes long and very unfriendly. While the consular officer will probably be cordial in the real interview, it is best to be prepared for the worst. You should be ready to answer questions such as “Where did you hear about this school?” etc.

If you don’t know very much about your chosen school, the consular official will often refuse to give you a visa. Consular officials may think that you are not really planning to go to school but are simply trying to enter the U.S. to work.

5. You should write a “statement of purpose” explaining why you want to go to this particular school and what you hope to do with the knowledge later on IN YOUR HOME COUNTRY.

6. If your financial status is an issue, you may want to pay tuition to the school in advance and present the receipt to the consular official. The official will almost certainly respect this gesture. Bank loans are NOT good evidence of financial support for students. Consular officials think that people with loans are more likely to seek employment in the U.S. so they can pay back the loan.

You should be honest with consular officials at all times. For example, applicants in some countries might not want to show their true financial status because they may be trying to “shield” income from taxes. Thus, their financial statements may not show this “black money” and so may not show enough money for education in the U.S.

But, U.S. consular officials actually don’t care at all if your family is hiding income from your own government. They will, however, appreciate your honesty and be much more likely to grant the visa if they know your true financial status. Conversely, if the consular officials believe that you are lying or have lied in a previous interview–about anything–they will probably not issue the visa. Copyright © 2006, Immitips.com. All Rights Reserved

Tips for H1B Visa Interview
  1. Keep a copy of all your documents.
  2. Answer all questions clearly during the interview.
  3. Upon receiving your visa, carefully check for any kind of mistakes like name, date of birth, type of visa, validity date, etc.

We have also decided to add a list of probable questions that you can be asked and should be able to answer without hesitation. We wish you the best of luck in your upcoming H1B Visa Interview.

1. How long have you been working?

2. Where are you working currently?

3. What is your current salary?

4. What is your current role in the current company?

5. Is it an Indian company you currently work for?

6. What is the company you are going to work for in USA?

7. Where are you going to work in US?

8. Why are you joining [New Company]?

9. How do you know this is a real company?

10. When did you receive your offer letter?

11. What will you be working on there? Is it an internal project?

12. I need a client letter describing your work project.

13. Tell me what do you know about [New Company]?

14. When was the US Company founded?

15. Tell me about the project and the company (client) you will be working for?

16. How did you find out about this company?

17. How did you contact the [New Company]?

18. What is the current project you will be working on?

19. What are your responsibilities and for which client are you going to be working for? Please explain in detail.

20. Do you have any proof from your new employer regarding your responsibilities?

21. Do you have any company photographs?

22. How long has the company been in the current location?

23. How many rounds of interviews has the USA Company conducted?
What are they?

24. What is the name of your interviewer?

25. Can you give me the dates of your interview?

26. Who are the clients for your U.S. Company?

27. What are the technologies you are working on?

28. Who is the President/CEO of the U.S. Company?

29. What kind of projects is the U.S. Company working on?

30. What is the annual turn over of the company?

31. How many employees does the U.S. Company have?

32. What’s your designation in [Previous Company] and what’s your designation in the [New Company]?

33. Will you be working from [New Company] office or client’s place?

34. Can I see the Employee petition to USCIS and the Tax Returns of the Company?

35. What is the salary you will get in USA?

36. How many rounds of interviews did the U.S. Company conduct?
What are they? 4 rounds (2 technical, 1 HR, 1 manager interview)

37. Can I see your client end letter and itinerary of services?

Copyright © 2006, Immitips.com. All Rights Reserved

What Lawyers Are not Telling You!

In this section, we will reveal the exceptions to the rules and the ambiguities in the law – information that most lawyers will not reveal but that can save you a lot of time and headache.

Cross-Chargeability can be used to avoid delay in I-140 processing

The Rule
The general rule on chargeability states that an alien is “chargeable” to the country he or she was born in.

The Exception
According Section 202 of the Immigration and Nationality Act, derivative beneficiaries (spouse/child of the alien) are charged to the country in which their principal applicant (the alien) was born.

Additionally, the Foreign Affairs Manual permits even reverse cross-chargeability i.e. a principal applicant can be charged to the country in which the derivative applicant was born. Note that this option is only available if the applicant uses consular processing.

NOTE: The National Visa Center has indicated that, at least principal applicants from India can be charged to the country of his or her spouse. Therefore it appears that applicants who use Consular Processing may use cross-chargeability and be charged to the country of either the derivative spouse or the principal applicant, whereas applicants for Adjustment of Status may only use cross-chargeability to be charged to the country of the principal applicant.

Case Study:

  • Mr. A was born in Pakistan and came to the U.S. to work on an H-1B visa for XYZ in 2001. His wife, Mrs. B, who was born in India, accompanied him on an H-4 visa.
  • Mr. A’s employer concurrently filed an I-140 petition and an I-485 Adjustment of Status application on his behalf.
  • Last week, Mr. A’s I-140 employment-based third preference petition was approved. His priority date is January 1, 2003 (the date on which is Labor Cert was filed). Mr. A’s priority date is current for India.
  • However, as a citizen of India, Mrs. B does not have a current priority date. The Immigration and Nationality Act allows that because Mrs. B is Mr. A’s derivative, she is entitled to be charged to Pakistan along with her husband. Her Adjustment of Status application can therefore be approved at the same time as her husband’s, even though she is an Indian citizen and would otherwise have to wait years for her priority date to become current.

As illustrated in the scenario above, the Immigration and Nationality Act allows “derivative beneficiaries” of I-140s to be charged to the country in which their principal applicant spouse (or parent) was born. Copyright © 2006, Immitips.com. All Rights Reserved

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Disclaimer:
The information provided on this newsletter is not legal advice. Transmission of this information is not intended to create, and receipt by you does not constitute, an attorney-client relationship. Readers must not act upon any information without first seeking advice from a qualified attorney.

Copyright © 2006, Immitips.com. All Rights Reserved