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Beware of Bringing Business Visitors to Work in the U.S.

November 12, 2013
Stephen Tarnoff

Employers thinking they can avoid the nation’s immigration laws by bringing individuals to the U.S. on B-1 visas while actually having them take on productive work better think again before engaging in such actions.

The warning comes after Bangalore, India-based technology, consulting, and outsourcing company, Infosys Limited, agreed to pay $34 million arising out of charges that the company engaged in massive visa fraud and abuse of immigration processes for allegedly transferring workers to the U.S. posing as business visitors. The settlement, the largest ever assessed in an immigration case, was also based on numerous I-9 violations by the company.

The government’s more than two-year investigation of Infosys is likely to lead to similar investigations of companies by U.S. immigration authorities. A U.S. Department of Homeland Security (DHS) spokesperson has been quoted as saying that there are spinoffs from the Infosys case that DHS is looking at, although he did not name the companies.

In addition to having to pay the $34 million, the settlement requires additional auditing of Infosys I-9s, closer scrutiny and reporting of the company’s B-1 activities, more detailed B-1 letters of invitation, and use of corporate disciplinary proceedings for employees violating immigration laws.

Under the law, the B-1 or business visitor visa permits U.S. employers to bring foreign nationals to the U.S.to engage in very limited business activities such as attending meetings, conferences, contract negotiations, litigation, or for short-term training. To protect U.S. workers, however, business visitors are not permitted to work or to engage in productive activities or to be paid in the U.S. In some cases and in limited circumstances, companies can bring individuals to work under what is called a B-1 in Lieu of H-1B visa, which also has also come under increasing criticism from various sources.

Rather than the B-1 visa, companies seeking to employ foreign nationals in the U.S. are supposed to use the government’s H-1B program. However, the H-1B program is limited to positions requiring at least a Bachelor’s degree in the field of the occupation. This program is also limited numerically as the number of foreign workers that can enter the U.S. under the H-1B program has been capped significantly below the demand of U.S. companies for such workers. It is also significantly more expensive to bring in foreign workers under the H-1B program than having them enter on a B-1 visa. However, in the case of Infosys, the latter option ultimately proved to be more expensive.

In an effort to circumvent these limitations, the government alleged Infosys brought foreign workers to the U.S. contending that they were business visitors. The company then had the individuals perform skilled labor at various work sites around the country.

According to the government, Infosys would submit letters to U.S. Consulate officials on behalf of individuals coming to the U.S. in which they misstated the actual purpose of the visit. The letters often stated the individuals were coming in for meetings or discussions even though the real purpose was to work. Investigators from the State Department and the Department of Homeland Security examined 6,500 B-1 visas that Infosys had used to bring in Indian workers over five years.

The government also alleged that Infosys failed to maintain I-9 records for many of those coming to the U.S. and did not update or re-verify employment authorization status for many of its foreign national employees. The government alleged that more than 80% of the company’s I-9s for 2010 and 2011 contained substantive violations. See the court documents here.

For its part, Infosys acknowledged major errors and omissions in records it kept on its employees in the United States, including Indian temporary technology workers brought in for contract work with American companies. But the company did not admit to systematic fraud. The agreement includes a rebuttal of accusations that it tried to increase profits by illegally using short-term business visitors’ visas to bring workers from India, instead sponsoring them for the less expensive H-1B.

“Infosys denies and disputes any claims of systemic visa fraud, misuse of visas for competitive advantage, or immigration abuse,” the company said in a statement. “Those claims are untrue and are assertions that remain unproven. The Company’s use of B-1 visas was for legitimate business purposes and not in any way intended to circumvent the requirements of the H-1B program.”

Infosys does business in more than 30 countries and is one of the largest employment placing companies in the U.S. with offices in more than 17 cities. It employs more than 160,000 individuals worldwide.

The distinction between what constitutes visiting for business and productive work is often difficult to determine. Employers uncertain about the distinction should consult with an attorney at Minsky, McCormick & Hallagan.

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