Generally, foreign nationals are required to apply for a non immigrant visa at a specific consular post abroad having jurisdiction over the foreign national’s place of residence. This is done to prevent forum shopping at a Consular post i.e. prefer a post that is likely to grant favorable result.

Consequently, forum shopping is now allowed in China.

The U non immigrant visa is available to victims of qualified criminal activities, who have suffered substantial physical or mental abuse and who assist or agree to assist law enforcement or other designated officials in investigation or prosecution of those crimes.

Qualifying criminal activities involve violations of certain federal, state or local criminal laws, including: abduction, abusive sexual contact, blackmail, domestic violence, extortion, false imprisonment, female genital mutilation, felonious assault, hostage-taking, incest, involuntary servitude, kidnapping, manslaughter, murder, obstruction of justice, peonage, perjury, prostitution, rape, sexual assault, sexual exploitation, slave trade, torture, trafficking, witness tampering, unlawful criminal restraint and other related crimes.

Eligibility for U Visa is based upon certification by designated authorities of the assistance provided by the foreign national in the investigation or prosecution. Applicants can obtain lawful temporary resident status and employment authorization while their application is pending adjudication.

The DOL statement is an effort in the right direction. Hopefully it would act as a deterrant against those perpetuatinf abuse. It surely would help crime detection and enforcement of penalties where the foreign nationals possess the necessary evidence but would not disclose the evidence or silently endure the abuse for fear of deportation.

A Memo issued by the USCIS beginning this year has been the underlying cause. The agency Memo requires that h1b petitions show presence of employer and employee relationship and details several factors indicating such relationship. In addition to the traditionally accepted standards such as abilities to pay, hire and fire, it includes exercise of control and suprvision by the employer over the job performed as the necessary indicia of employer and employee relationship.

Factors indicating presence of employer and employee relationships are well established in the subsatntive law and same policies have been followed by USCIS in adjudicating visa petitions. The government memo attempts to borrow these same concepts is a compilation of its poilicies followed so far. However, there has been wide opposition to the memo which is called as untra vires because its issuance did not follow the requisite government procedure detailed in the Administrative Procedure Act. However, even if unltravires, until withdrawn we are required to follow the Memo and its mandate and prove as required, the presence of employer-employee relationship for a successful H1b petition.

Increase in tourism and also in the business and employment opportunities in the country has lead to increase in foreign nationals travelling to India. The government of India declared that foreign nationals enter with visas that is consistent with the purpose of their stay. In its November 25th press release, the government said that the business visa should be used strictly for business visits i.e. relating to purchase or sale of products or for setting up a business or industrial establishment.

Employment visa should be sought if the purpose is to execute a project. This visa is granted to senior level skilled and qualified professionals. Restrictions apply when large number of qualified local workers are available. It reminds me of the United States’ Labor Certification process requirement where an employer must tap the local labor market before offering a foreign national permanent employment. These measures are nationalistic in nature and are designed to protect loal job market. The measures would be increasingly adopted by countries of the world because as labor becomes mobile and supply of labor/services comes internationally i.e. qualified foreign workers move accross national borders to take up employment there would be greater desire to protect local job market.

The Indian government had earlier directed the foreign nationals with inappripriate visa to exit by October 31, 2009, (extendable in certain circumstances) and return with appropriate visa. The government claimed that foreign nationals accept gainful employment but remain within the country on visitors visa. There ought to be a procedure to apply for change of status from within the coutry. It is yet to be seen how the employment restrictions are applied. In my opinion until talented foreign workers are willing to accept Indian wage levels which are relatively low when compared internationally, the restrictions would stay relaxed.

Visitor visa travellors face two month restriction on return. It is reported that the the foreign nationals used to travel to a contiguous country and return within a few days with a valid visitors visa. Perhaps, the government became aware of this issue only lately. So, now, the new restriction makes a quick return to India on visitors visa impossible. Foreign nationals report that their passports are stamped with the return restriction before they exit. There are numerous reports that the foreign Consulates are expressing their concern over the changes although I doubt that the resentment is over the changes per se. It would be more about the lack of publicity of these changes or about their inconsistent implementation. Also, it is unclear what is the extent of these restrictions as I try to explore the legal authority behind it.

The Chicago Indian Consulate confirmed the tourist visa return restrictions but said that certain exceptions apply including visit for emergent circumstances. Family or business exigencies like a death of a family member or a business need would fall in this category. My enquiry to the Consulate also confirmed that the restrictions do not apply to Card holders who possess Overseas Citizenship to India (OCI) and Persons of Indian Origin (PIO).