Every fortnight Cyrus Mehta answers immigration and visa questions on South Asia World, a TV channel on the Dish Network. You can also read a transcript of his answers in Mantram magazine. The Q&A below is the latest in that series:

I have been in US for 5 years now and I had always wanted to get my parents to the US. I am in the process of organizing the relevant paperwork. For the Visa application a particular from called the DS-156 needs to be filled up. Q 38 of this form asks if a certain individual has ever been arrested. A couple of years ago my father was involved in a road accident, where his car hit a pedestrian who subsequently died in the hospital. My father was therefore charged under Section 304 A, Indian Penal Code (causing death by rash or negligent act). The case is currently being heard in the lower courts. This is a bail able offence and my father was immediately granted bail and subsequently he goes to court at the particular dates of hearing, which usually occurs every three months.

Would therefore chance of a tourist visa exist under the present circumstances? Also what can be done to increase the chances of obtaining a Visa under the present circumstances in the form of other paperwork such as police report or a letter from the lawyer etc?

Shouvik Roy

The mere fact that your father was involved in this incident and charged under a criminal provision of the Indian Penal Code will likely jeopardize his visa presently. The law requires a consul to find a visa applicant inadmissible if he/she has been convicted or even committed a crime involving moral turpitude.

While there is no conviction as of now, your father seems to be going through the court proceedings. The consul may want to know the outcome of the case before issuing the visa. If he is vindicated, there would be a good basis for obtaining the visa. If he is convicted, the consul will inquire whether it was a crime involving moral turpitude. While there may be no malice or intent to have actually caused the death of the person, if the law requires a finding of recklessness, that too could constitute a crime of moral turpitude. One would need to examine the section of the Indian Penal Code further.

With the 20,000 exemptions available, where should a person completing his master this May apply? Should he apply for the exemptions (it is my understanding that they are for this fiscal year)? Should he apply for the normal cap (65,000) for next year? Shall he apply to both?

Anesti Kashta

The answer is that you should apply for both years. At this time, USCIS has announced that the 20,000 exempt visas may not just be available to master’s degree holders, but may be available to all. It is still very uncertain, as the policy is in the process of being published in the Federal Register. Employers are filing H-1Bs with an October 1, 2005 date (FY2006) but also indicating an earlier date should the 20,000 become available in FY2005. If the policy has not taken effect by the time you graduate, you can adopt the above procedure.

My father is on an H1B in the US. He applied for a certification from the Dept. of Labor in Dec. 2003 (Virginia). The effective date for PERM, which is the new system initiated by the DOL, is March 28, 2005. How is our labor going to be processed according to the new system?

Rishi Markenday

It seems like his employer filed an application for labor certification on December 2003, which is the first step towards employment-based green card sponsorship.

A labor certification filed in December 2003 in Virginia has probably been sent to the backlog processing center. Even through the new PERM program became effective on March 28, which streamlines and expedites the labor certification process, his case still falls under the old system because his application was filed in December 2003. The labor department will endeavor to process all backlogged cases on a First-In First-Out basis and the first cases in the backlog queue were filed sometime early 2001, so he’ll be in the middle of the queue. DOL has predicted it will take 25-30 month to clear the backlog. The new PERM program is not going to affect the processing of his old labor certification filing. However, his employer can still take advantage of the new PERM program and re-file under PERM. If the PERM application is identical to the old application, the employer can request that the old filing date be assigned to the new application. This is useful if your father is affected by the per country backlogs in the EB-3 category or wishes to apply for a 7th year H-1B extension.

The information provided above is generalized and does not substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.