H-1B Visas Are Almost Gone – Then What?

November 18, 2011 Stuart Anderson Leave a comment

Many employers and foreign nationals hoping to work in America have been happy that the supply of H-1B visas did not evaporate rapidly this fiscal year. That happiness may soon change.

The News Isn’t Good

The news from U.S. Citizenship and Immigration Services (USCIS) is that the supply of new H-1B visas for fiscal year 2012 will soon be a thing of the past. (Find link here.)

Contrary to popular belief there is not one but two caps on H-1B visas. The first cap of 65,000 is available to all foreign nationals who qualify for H-1B status and receive a petition. The second cap is a 20,000 allotment for foreign nationals who attain a masters degree or higher from a U.S. university.

U.S. Citizenship and Immigration Services began accepting applications for H-1Bs on April 1, 2011, even though individuals with approved petitions could not legally begin working in H-1B status until October 1^st. Earlier this year, the 20,000 “masters exemption” was exhausted. Now, USCIS reports that as of November 14, 2011, 56,300 petitions that count against the 65,000 cap have been utilized. At the current pace, it is possible the remaining cap will be exhausted by the end of the 2011 calendar year.

The Only Practical Way to Hire

Lost in the debate over H-1B visas is a simple fact – an H-1B is generally the only practical way for an employer to hire a foreign-born professional to work long-term in the United States. Factoring in the initial stage of labor certification, the wait for an employment-based green card can range from a few years to even decades, depending on the category and country of origin. And the waits are longest for Indian nationals because of the per country limit.

Available Options

Without the possibility for a skilled foreign national to obtain a new H-1B petition, the options will grow limited for both employers and potential employees. Hiring by universities and non-profit research institutes are exempt from the H-1B numerical limits, which presents one avenue of employment for a skilled foreign national. Another option is that an employer may decide to hire someone outside the country. After a year, if the individual possesses “specialized knowledge” or is a manager or an executive, it may be possible for that individual to transfer into the United States on an L-1 visa.

Another option for an employer is to hire the individual outside the United States and file a new H-1B petition in April 1, 2012, although the individual could not start working in the U.S. until October 1, 2012 (the beginning of the new fiscal year). In short, there are no good options. The closest to a “good” option is for an international student at a U.S. university to determine if he or she qualifies for Optional Practical Training (OPT), which would allow the student to stay in the United States and obtain training while working for an employer for up to a maximum of 29 months.

The Prospects for Legislation

Realistically, it is unlikely Congress will pass an expansion of the H-1B quota in 2011 or during the first half of 2012. Any legislation passed after that time would not help individuals in the short term who need to be hired in H-1B status to work legally in the United States. A new supply of H-1Bs would become available on October 1, 2012.

It is possible that a small expansion of H-1Bs or an expansion of the 20,000 “masters exemption” could be part of another piece of immigration legislation. Yet it is unlikely an expansion of H-1Bs would pass without at least some legislative debate over whether to include new restrictions on H-1B visas in such a bill. In the meantime, the best bet for employers and potential hires who require an H-1B visa is to get one while supplies last.

Defence And Strategic Affairs Blog

Maps, MOUs and Other Contradictions

November 13, 2011 Aanand Kharde 2 Comments

The spat between China’s ambassador in New Delhi and an Indian journalist is a good illustration of the conflicting factors shaping India’s relationship with Beijing.

Last week’s well-publicized spat between Zhang Yan, China’s ambassador in New Delhi, and a persistent Indian journalist is a good illustration of the contradictory forces shaping India’s relationship with the People’s Republic.

Zhang was at a media event highlighting the memorandum of understanding that the Tebian Electric Apparatus (TEA), a Chinese maker of power transformers, has signed to build a $400 million manufacturing facility in the western Indian state of Gujurat. The move is being hailed as a landmark for Chinese investment in India.

The event was meant to showcase growing bilateral economic engagement. Last year, China became India’s largest trading partner, with two-way trade amounting to $60 billion. Two months ago, the two countries convened in Beijing for the inaugural session of their annual strategic economic dialogue and reiterated plans to elevate trade flows to the $100-billion mark by 2015. And if a new report by the Associated Chambers of Commerce & Industry is right, Beijing and New Delhi could well form the world’s largest trading combination by 2030.

It’s also worth noting that the Indian central bank recently permitted companies to borrow up to $1 billion in Chinese yuan, a move that opens the gate for India’s struggling power sector to import much-needed plant equipment. (For more on the sector’s dependence on China, read here.)

Yet instead of focusing on the bright side of the bilateral relationship, the headlines about the event were about festering differences. The corporate brochures TEA circulated at the gathering depicted the state of Arunachal Pradesh – which Beijing insists is actually “South Tibet” – and parts of Ladakh as being with China’s borders. An animated exchange ensued when an Indian journalist call out Ambassador Zhang on the issue, culminating in Zhang – one of his country’s most experienced diplomats – intemperately telling the fellow to “Shut up!”

(This was not the first time Mr. Zhang’s interactions with the freewheeling, sensationalistic Indian media have gone awry. In the run-up to Premier Wen Jiabao’s state visit last December, Zhang intimated that the press was engaged in “a war of words” directed at Beijing and suggested that the Indian government do something to stop it. It was left to then-Foreign Secretary Nirupama Rao to remind Zhang of the country’s tradition of press freedom.

And fresh off last week’s incident, the ambassador is now involved in a new face-off with New Delhi. Beijing has nominated him to be the head of the United Nations’ Joint Inspection Unit, an internal watchdog agency, while New Delhi is aggressively campaigning for its own candidate, the current Indian ambassador to the UN institutions in Geneva.)

The map contretemps puts in stark relief the contending factors – increasing economic cooperation mixed with ulcerating historical animosities and an intensifying strategic competition – that tug at India’s relations with China. This last element has lately been on full display. New Delhi hosted two noteworthy state visits last month, both of which had significant implications for the emerging contest with Beijing over which country will be at the helm of the dawning Asian Century.

The first, by Vietnam’s president, Truong Tan Sang, underscored Indian determination, in the face of explicit even hyperbolic Chinese warnings, to begin hydrocarbon exploration in the South China Sea. Beijing claims the resource-rich area in almost its entirety and it has emerged as a flashpoint for conflict with China’s neighbors, especially Vietnam and the Philippines. The Tan Sang visit brought forth renewed bluster from Beijing, with the normally sedate China Energy News thundering in a front-page commentary that:

“India is playing with fire by agreeing to explore for oil with Vietnam in the disputed South China Sea. India’s energy strategy is slipping into an extremely dangerous whirlpool…. Challenging the core interests of a large, rising country for unknown oil at the bottom of the sea will not only lead to a crushing defeat for the Indian oil company, but will most likely seriously harm India’s whole energy security and interrupt its economic development.”

During the Tan Sang visit, New Delhi and Hanoi agreed to set up a regular security dialogue. Vietnam has also asked India for military assistance, including the training of fighter pilots and submariners, the transfer of warships and missile systems, as well as help in upgrading Nha Trang port near the strategically-located Cam Ranh Bay. The deepening security relationship caused several Chinese news organizations last week to accuse New Delhi of throwing its lot in with others who are trying to contain China’s ambitions.

No sooner had the Vietnamese dignitaries left the scene than U Thein Sein, the president of Myanmar, showed up. Beijing and New Delhi have long regarded Myanmar as an arena for geopolitical jousting, and Thein Sein’s visit came amid signs that his country has decided to extricate itself from China’s close embrace. A few days before, Myanmar abruptly shelved a $3.6 billion dam project being constructed by the Chinese. Seeing an opportunity to further dilute Beijing’s influence, New Delhi presented Thein Sein with $500 million in infrastructure loans and renewed its pledge to develop the deep-water port of Sittwe on the Bay of Bengal. This landmark $120-million project, scheduled for completion in mid-2013, would directly link India’s isolated northeastern states to the booming markets of Southeast Asia, and so is significant for both commercial and geopolitical reasons.

The recent months also testify to the accelerating military competition between China and India along their long-contested Himalayan border. In September, Defense Minister A.K. Antony declared that Beijing was “aggressively” building up its forces along the border, and General V.K. Singh, the army chief of staff, followed up by claiming that 3,000-4,000 Chinese personnel, including combat engineers from the People’s Liberation Army, had been deployed to the Gilgit-Baltistan region, which is controlled by Pakistan but considered by New Delhi to be an integral part of Kashmir.

Earlier this month, the defense ministry approved a plan to create four new divisions along the China-India border, including two that would form a mountain strike corps geared toward offensive operations. New Delhi has further decided to station supersonic BrahMos cruise missiles in Arunachal Pradesh, the first deployment of offensive tactical missiles against China. Reflecting the darkening suspicions about Beijing’s intentions, a respected think tank affiliated with the defense ministry has released a study examining the pathways by which military conflict could come about, including the possibility of Chinese preventative war.

The future direction of India’s relations with China will most likely come to mirror the present composition of U.S.-China relations. Cooperative impulses emanating from deepening economic engagement will moderate the likelihood of outright military hostilities. Yet the competitive dynamics of power politics will also ensure that the risk of conflict is ever present.

The key question in all of this is how the U.S.-China and China-India rivalries will intersect. Here, too, recent events are indicative. Amid the intensifying competition between Beijing and New Delhi, the Indian government is moving to purchase from the United States another six C-130J “Super Hercules” transport aircraft specially configured for special operations forces as well as 22 AH-64D Apache Longbow attack helicopters. With contingencies against China in mind, the new C-130s will be based in eastern India.

The sense of disappointment in India permeates Washington these days, with some even debating whether New Delhi is or will ever be a true ally. But if the events of the last few months are any guide, Beijing’s increasing strategic reach is ineluctably drawing the United States and India closer together.

Immigration Blog

L-1 Visas Issued in India Declined by 28 Percent in 2011

November 11, 2011 Stuart Anderson 2 Comments

Given the significant and increasing ties between the US and Indian economies, it is not surprising that companies with offices in India seek to transfer personnel into the United States. However, to do so is not a simple matter, especially over the past year.

Recently, I obtained data from the State Department that show L-1 visas (used for intracompany transfers) issued by U.S. posts in India declined by 28 percent between 2010 and 2011. Yet during the same time period, L-1 visas issued at U.S. diplomatic posts in the rest of the world increased by 15 percent. (See the report here.)

L1 visas are used by companies to transfer from overseas to the United States executives, managers and professionals with “specialized knowledge.” It is believed one of the reasons for the increase in denials centers around consular officers in India adopting a new, stricter interpretation of “specialized knowledge.” Immigration law defines “specialized knowledge” as “special knowledge of the company product and its application in international markets” or “an advanced level of knowledge of processes and procedures of the company.” A company must have employed the L-1 applicant for one year or more continuously within the past 3 years.

Request for Information

On October 25, 2011, the U.S. embassy in New Delhi issued a press release with the headline, “US Mission to India Reports 24% Year-on-Year Increase in H-1B Visas Issued.” The press release stated, “The U.S. Mission to India saw H-1B (specialized skills work visa) issuances in India increase 24% between the U.S. Government’s Fiscal Year (FY) 2011 and FY 2010 . . . This 24% increase is tied to the highest ever H-1B application and issuance rates in the history of the US Mission to India, and illustrates the booming nature of US-India business relations.”

Something appeared to be missing from the press release – information on whether L1 visa issuance increased or decreased in 2011. Curiously, the press release contained only a single reference to L-1 visas, stating: “India also remains the leader in issuances of L1 (intracompany transfer) visas, issuing more than 25,000 L-1s in FY 2011 – or 37% of issuances worldwide.”

Yet without the exact figure on 2011 or the data on 2010, there would be no way of knowing what happened to L1 visas over the past year. Many companies had been reporting increased denials but hard data from the US Department of State remained elusive.

The Data on L-1 Visas

In response to a request for data, the State Department sent me the information on L1 visas issued at U.S. posts in India in 2010 and 2011, as well as L1 visas issued at other posts around the world. The results appear in Tables 1 and 2.

Why Is India Different?

The data appear to be proof that something strange is going on in the L1 visa issuing process in India, which the State Department in the past has denied. The release of the data is likely to spur additional inquiries into why L1 visa issuance is declining in India, while in the rest of the world it is rising. Since every U.S. diplomatic post operates under the same set of laws there is so far no easy answer to the question:

Why are U.S. consular officers in India apparently denying a higher proportion of the L-1 visa applications that come to them than consular officers in other countries?

Defence And Strategic Affairs Blog

Pakistan’s Unsafe Nuclear Warheads

November 8, 2011 admin 2 Comments

Pakistan is facing a grave internal security crisis as radical extremists are gradually gaining ground. The crisis is attributable to a large extent to the resurgence of Islamist fundamentalist forces and the army’s inability to fight them effectively. Consequently, the spectre of Pakistan’s nuclear weapons falling into the hands of terrorist organizations has once again come to the fore. Western commentators are calling for contingency plans to physically secure or destroy the nuclear warheads in the event of a meltdown in the country.

Islamist terrorists can gain possession of nuclear warheads by physically breaching the security ring around them, by subverting the personnel on guard duty or if they succeed in overthrowing the regime in power in Islamabad through a coup. The Pakistani military authorities are extremely concerned about such eventualities and have made elaborate arrangements to ensure that all their nuclear warheads are stored safely. They claim that carefully formulated personnel reliability policies and electronic safety mechanisms have been developed and incorporated by Pakistan’s Nuclear Command Authority.
The Pakistani military establishment loses no opportunity to emphasize that as a responsible nuclear weapon state Pakistan has always attached great significance to the security of its strategic assets and that these assets are completely safe and secure under multi-layered security and command and control structures that are fully indigenous.

Pakistan’s nuclear warheads are reported to be stored at up to six to 10 separate locations. Besides the actual locations, there are a large number of dummy locations. The warheads are moved frequently to keep American satellites and spies from ascertaining their real locations. The warheads are stored separately from the launchers so as to guard against accidents and unauthorized use. The warheads are reported to be equipped with electronic locks (Permissive Action Links). A three-tier security system has been instituted for the physical protection of the various components of the warheads.

The fissionable atomic core made of highly enriched uranium and the high explosive trigger assembly are stored in fortified underground storage sites. Entry and exit into these “bunkers” is controlled by armed and well-equipped specially selected and meticulously trained personnel of the Strategic Plans Division (SPD). As part of the Personnel Reliability Programme, these personnel are screened carefully before induction, are kept under constant surveillance and are frequently rotated.

Personnel selected for the security of the outer perimeter are reported to belong to elite infantry battalions of the Pakistani army. The possibility of any of these personnel being subverted is guarded against by counter-intelligence teams. Military regimes have very strong survival instincts and the SPD ensures that hard-line radical elements are ruthlessly weeded out from the nuclear security detail. The storage sites also have air defense assets allotted to them to defend against attacks from the air.

The delivery systems of Pakistan’s Strategic Forces Command, comprising Chinese supplied M-11 and M-9 and the North Korean Nodong and Taepo Dong nuclear-capable surface-to-surface missiles and their launchers, are based at separate locations. These sites or “hides” are well-dispersed to ensure that maximum warheads survive a conventional air attack during war. They are also well defended against possible commando raids.

However, the possibility that an Islamist fundamentalist organization might overthrow the unstable civilian government with support from a large faction of the army cannot be ruled out. In such an eventuality, the U.S. and its allies may justifiably form another ‘coalition of the willing’ to seize maximum number of warheads in raids by Special Forces and bomb the remaining storage sites from the air to destroy the warheads. It would be in India’s interest to provide the maximum possible assistance that it can.

Immigration Blog

Will A New Bill Aid International Students with Ph.D.s – and Others?

November 7, 2011 Stuart Anderson Leave a comment

The Wall Street Journal has reported that House Judiciary Committee Chair Lamar Smith (R-TX) plans to introduce legislation to provide extra green cards for certain international students. (Find article here, registration required.)

As described, the legislation would likely have a positive impact on skilled immigrants.

For several years there has been great interest in the high tech community in exempting graduates of U.S. universities from employment-based green card quotas. In particular, the focus has been on individuals with advanced degrees from U.S. universities in science, technology, engineering or mathematics (STEM) fields. Some high tech executives have referred to such legislation as stapling a green card to the diploma of certain international students. In fact, a bill by Rep. Jeff Flake (R-AZ) is called the STAPLE Act (H.R. 399).

What Would New Legislation Likely Include?

The Wall Street Journal summarizes the likely contents of a new bill aimed at international students with Ph.D.s: “Rep. Lamar Smith (R., Texas), chairman of the House Judiciary Committee, said he plans to introduce legislation providing up to 10,000 visas a year to foreign students graduating from US universities with doctorates in engineering, information technology and the natural sciences.”

It is unclear from the description whether the intention is to create a new category or an exemption from the current 140,000 annual quota for employment-based green cards.

Which Universities Would Be Eligible?

A key question in any proposed legislation is whether degrees from all universities will allow international students to qualify. One concern expressed by lawmakers is a “diploma mill” could come into operation seeking to attract students by offering a way to gain a green card easier. For that reason any legislation is likely to restrict degrees to those obtained from universities in operation for a number of years and possibly only “research” universities. The definition of research universities and how many would be included in such a definition will remain an issue.

Which Degrees Would Be Eligible?

Another issue is whether legislation would be restricted to only Ph.D.s or to include recipients of masters degrees as well. Based on the Wall Street Journal article, it appears Rep. Smith would like to limit any bill to Ph.D.s. only.

A related matter is Ph.D.s in which fields. Members of Congress have focused on degrees in science, technology, engineering or mathematics (STEM) fields. It is possible Rep. Smith’s legislation would be narrower. In the interview with the Wall Street Journal, Rep. Smith mentioned engineering, information technology and the natural sciences as eligible areas.

Job Offer

It is likely any legislation would require the individual receive a job offer from an employer before being eligible for a green card.

Labor Certification

One of the most burdensome aspects of the employment-based immigration process is labor certification. That is a process that can cost employers several thousand dollars and can take 6 months to two years to gain approval from the U.S. Department of Labor. The process is meant to show no other qualified American is available to fill the job. Proving that often involves paying for advertisements and showing the results to the Department of Labor. Any exemption or special visa would be much more desirable if the applicant did not have to endure the labor certification process.

Likely Impact

Legislation limited to Ph.D. recipients would have a two-fold impact. First, it would likely allow for a green card to be received in a timely fashion for such individuals without regard to country of origin. (One assumes any legislation would exempt the recipients from the per country limit.) Even individuals who earn a Ph.D. could wait years for a green card in the employment-based second preference category if they are born in India or China. Second, adding extra visas to the employment-based immigrant category would free up numbers even for individuals who are not eligible, thereby reducing overall waiting times by a modest amount.

Rep. Smith’s bill would be notable because a bill introduced by the chairman of the committee with jurisdiction, in this case the House Judiciary Committee, has a far greater chance of moving through the legislative process than bills introduced by other members of Congress. Once introduced, it will be legislation worth watching.

US India Relationship Blog

Monthly Archives: November 2011