'Indian firms must follow U.S. immigration laws'

By Our Special Correspondent

CHENNAI, MARCH 28. With the information technology (IT) employment market in the U.S. shrinking and the U.S. Immigration and Naturalisation Service (INS) enforcing a new, tough set of rules from mid-January this year, what should Indian companies do to protect themselves from penalties that could bankrupt their business in case of prosecution?

The scare about the ``end of the American dream'' for IT professionals is, however, far from justified and Indian employers and their associates in the U.S. should desist from illegal practices such as ``benching'' or keeping idle H1B visa holding workers unpaid (in reality, and not merely on record) till the next contract to deploy them turns up, says Mr. Vaman B. Kidambi, Attorney at Law.

Addressing a meeting under the auspices of the Southern India Chamber of Commerce and Industry (SICCI) on Tuesday, Mr. Kidambi said the thrust of several U.S. immigration laws introduced in the last two decades was on non-discrimination (covering also exclusion of `reverse discrimination' like recruiting only Indians or nationals of a particular non-U.S. origin) and prevention of abuse of H1B, L and other U.S. visas and not avoiding competition in the job market for highly skilled, specialised and managerial personnel.

Mr. Kidambi said employers should be aware of the implications of the ``interim final regulations'' notified in the last two months under the American Competitiveness and Workforce Improvement Act (ACWIA), 1998. These included declaration of status of ``H1B visa dependency'' of the employer, exemption of H1B non-immigrants holding a master's degree or its equivalent in a specialty related to the intended employment and those who earn at least $ 60,000 per year and new provisions on attestation regarding non- displacement of U.S. workers.

Other requirements of the new rules related to compliance with ``industry-wide standards'' of working conditions and ``good faith recruitment'' (including ``passive'' methods like newspaper and internet advertisement and ``active methods'' like campus interviews and attending job fairs).

India, already the biggest beneficiary of the H1B visa regime and one of the largest contributors to immigrant communities in the U.S., could further increase its access to opportunities in the U.S. if it tried to sign a treaty on grant of ``E visas'', just as Pakistan, Bangladesh and many other countries have done, according to Mr. Kidambi.

``It does not help business if our leaders merely make political statements (about close bilateral relations with the U.S.) without taking concrete steps like trying to initiate negotiations for an E visa regime'', the Indian passport-holding U.S. attorney said.

(The ``treaty trade and treaty investor'' visa regime, known as E visas, allows nationals of treaty countries having substantial trade and investment relations with the U.S. to reside in the U.S. as long as their status as trader/investor or employees of trader/investor remains).

Though the U.S. was essentially a law-governed nation, the ACIWA 1998, had one draconian or ``lawless'' provision which empowered immigration officials, on suspicion, to refuse entry, force visa holders to admit fraud and offer them the ``option'' of either being taken to a detention centre in the U.S. or being sent back with forfeiture of future rights to visas or compensation. ``The immigrant attorney fraternity in the U.S. is fighting to get this provision scrapped'', Mr. Kidambi said.

He said there was ``no recession'' in the U.S. and IT professionals would continue to be in demand. What was at present happening was that following the bursting of the dotcom bubble, veteran IT professionals running such companies were filling up regular jobs and hence relative new comers and those with lower qualifications were finding it difficult to get placement in the same easy way they used to earlier, he added.

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