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Infosys Fined an Unprecedented $35,000,000.00 by the U.S. Government for Employing B-1 Visas in Lieu of H-1Bs

The Wall Street Journal reports that the U.S. Government will fine Infosys, an Indian Technology/Consulting giant, almost $35,000,000.00 for employing B-1 visa workers in lieu of H-1B visa workers.

By way of background, last year, Judge Thompson of the Federal Court for the Middle District of Alabama rejected all claims brought by Jack Palmer against his employer, Infosys. Palmer claimed to have been harassed and retaliated against after making allegations that Infosys’ massive B-1 visa program was used fraudulently in place of more appropriate visas. Palmer’s rejected claims were subsequently resurrected by the U.S. Department of Justice and the Department of Homeland Security, which continued its investigation into whether Infosys wrongly filed B-1 visas for workers performing work that actually required H-1B visas.

In a 2011 blog post I wrote about how Infosys may have been engaging in a perfectly legal action; per 9 FAM 41.31 N11, “ALIENS NORMALLY CLASSIFIABLE H-1 OR H-3″:

“There are cases in which aliens who qualify for H-1 or H-3 visas may more appropriately be classified as B-1 visa applicants in certain circumstances; e.g., a qualified H-1 or H-3 visa applicant coming to the United States to perform H-1 services or to participate in a training program. In such a case, the applicant must not receive any salary or other remuneration from a U.S. source other than an expense allowance or other reimbursement for expenses incidental to the alien’s temporary stay. For purposes of this Note, it is essential that the remuneration or source of income for services performed in the United States continue to be provided by the business entity located abroad, and that the alien meets the following criteria:

(1) With regard to foreign-sourced remuneration for services performed by aliens admitted under the provisions of INA 101(a)(15)(B), the Department has maintained that where a U.S. business enterprise or entity has a separate business enterprise abroad, the salary paid by such foreign entity shall not be considered as coming from a “U.S. source;”

(2) In order for an employer to be considered a “foreign firm” the entity must have an office abroad and its payroll must be disbursed abroad. To qualify for a B-1 visa, the employee must customarily  be employed by the foreign firm, the employing entity must pay the employee’s salary, and the source of the employee’s salary must be 
abroad…”

However, Senator Chuck Grassley (R-IA), apparently motivated by Palmer’s Testimony, addressed a strongly worded but poorly researched memo to Secretary Hillary Clinton in which he demanded a complete review of the B-1 visa. His request was inexplicably granted, and the resultant changes substantially injured the economic interests of U.S. organizations engaged in international trade, countermanded congressional intent on the subject, and escalated denials for B-1 applicants at U.S. Consulates, especially those in the ‘B-1 in lieu of H-1B’ category.

Moving back to present: Infosys’ fine is unprecedented in the history of Immigration law.  It will have a major impact on both our nation’s technology/consulting sector and on our Immigration policy. In light of the fact that other nations are eagerly recruiting the world’s best and brightest (sometimes from within our borders), it can only be hoped that the Infosys fine will reinvigorate the push for the creation of a new U.S. visa category specifically designed for short term consulting projects, and/or to increase the U.S.’s yearly quota for H-1B professional workers to a level that isn’t exhausted in one week.

U.S. Mission in India Expands Interview Waiver Program

USA B1/B2 Visa

USA B1/B2 Visa (Photo credit: Wikipedia)

New Delhi | November 19, 2012

In March of 2012, the United States Mission to India unveiled the Interview Waiver Program (IWP) which allows qualified individuals to apply for additional classes of visas without being interviewed in person by a U.S. consular officer.  Following the success of the IWP, as part of continuing efforts to streamline the visa process, and to meet increased visa demand in India,  the U.S. Mission is pleased to announce an expansion of the IWP.  We expect this expansion to benefit thousands of visa applicants in India.

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Attorney Sharma’s PolicyMic Article: Infosys Visa Fraud: Judge Dismisses Whistleblower Suit

By Ashwin Sharma

Earlier this week, Judge Thompson of federal court for the Middle District of Alabama rejected all claims brought by Jack Palmer against his employer, Infosys. Palmer claimed to have been harassed and retaliated against after making allegations that Infosys’ massive B-1 visa program was used fraudulently in place of more appropriate visas.

By way of background, when these allegations first arose in early 2011, I wrote about the strong likelihood that Infosys may have been engaging in a perfectly legal action under existing U.S. immigration law on B-1 visas.  Subsequently, Senator Chuck Grassley (R-IA), apparently motivated by Palmer’s Testimony, addressed a strongly worded but poorly researched memo to Secretary Hillary Clinton in which he demanded a complete review of the B-1 visa. His request was inexplicably granted, and the resultant changes substantially injured the economic interests of U.S. organizations engaged in international trade, countermanded congressional intent on the subject, and escalated denials for B-1 applicants at U.S. Consulates, especially those in the ‘B-1 in lieu of H-1B’ category.

Returning to the court’s decision: It was interesting to note that despite all the recent attention on various states’ interpretation of federal immigration law, Judge Thompson avoided the topic entirely: “Palmer’s brief spends an inordinate amount of time addressing whether Infosys engaged in visa fraud.  To be clear, this litigation does not concern whether Infosys violated American immigration law. Rather, Palmer’s suit rises and falls on a simple inquiry: whether he has created a genuine dispute of material fact on his state-law claims.”

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Answering reader mail: INA Section 214(b) issues in applying for Visitor/Student visas

INA Section 214(b) issues in applying for Visitor/Student visas

Dear Ashwin,
I wanted to bring my brother over to the US for Diwali, and I sent an invitation letter, but the consulate in Chennai turned him away. What do the consular officers look for in these situations, and what should we watch out for the next time I try to get a visitor’s visa for brother or parents? When can I reapply for him? 
Lakshmi


Dear Lakshmi,
Section 214(b) of the Immigration and Nationality Act (INA) states: “Every alien shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for admission, that he is entitled to a nonimmigrant status…” In short, this section of the INA presumes every applicant for a visa to America intends to eventually reside in America. It is the burden of each applicant to demonstrate that this is not the case – that they only intend to visit America for a short duration. In qualifying for B (Visitor) F (Student) or J (Exchange Visitor) visas, an applicant must demonstrate compliance with this section of the law. Most refusals concern the requirement that the applicant possess or maintain a residence abroad that he has no intention of abandoning. Applicants thereby demonstrate that they have ties abroad that would compel them to leave the U.S. at the end of the temporary stay. The INA places this burden of proof squarely on the applicant. (Note that these requirement do not apply to H or L Visa holders who may maintain ‘dual-intent’). 

Consular officers have the last word in deciding who may enter the US and evaluate each applicant for a non-dual-intent visa (B, F, J among others) to determine whether the applicant has strong ties abroad. Some examples of ties can be a job, a house, a family, and a bank account. These ties bind you to your home country and demonstrate that you will return after your trip to America. Despite the fact that consular officers attempt to provide a case-specific evaluation, they have limited time allotted to each client. It is imperative that you have a well documented and organized petition which demonstrates the strength of your applicant’s case by providing evidence of the applicant’s strong ties. Unfortunately, as you can imagine, these requirements are somewhat harder to prove for younger applicants. 

You should also attempt to provide documentation of why the visa applicant is coming to the United States. Temporary trips of a short duration (less than six months) for a specified period of time with a clearly defined start and end date (such as a marriage or graduation) are more likely to be approved. Remember that an invitation letter and evidence of funds of the American ‘sponsor’ are of limited benefit to the applicant – the consular officer is mainly concerned with the qualifications of the applicant themselves. 

Your brother can attempt to enter the US again since a denial under section 214(b) is not permanent, however, the more times an individual is turned down the harder it becomes to become eligible for subsequent approvals. The consular officer will only reconsider a case if an applicant can show further convincing evidence of ties outside the United States. The applicant’s situation must have substantially changed since the last application. Demonstration of strong ties is still key. 

Celebs bend visa lines like Beckham

Via Miami Herald.com

Accommodating U.S. State Department officials bend over backward to grant visas to elite figures in sports, science, arts, education and business.

International
soccer star David Beckham and wife Victoria, formerly Posh Spice of the
Spice Girls, don’t wait months or years to enter the United States
legally.

Beckham’s status, bankroll and his attorney see to that. He receives
approval for his visa within two weeks. Accommodating U.S. State
Department officials grant him after-hours appointments and have asked
him to pose for photos.

As an ”alien of extraordinary ability,” Beckham is eligible for an
O-1 work visa reserved for elite figures in sports, science, arts,
education and business.

These and companion visas for family and support personnel have no
caps on the number who can arrive. Their numbers have more than doubled
over the past decade.

Meanwhile, specialty workers with four-year degrees can’t always
bend the bureaucracy like Beckham. Demand for visas from these workers,
with professions such as computer programming, engineering and
accounting, has surged. But the cap, briefly raised a few years ago,
remains at 65,000 — what it was in 1992. The 2007 cap was filled May
26, a record four months before the fiscal year begins.

Currently, Congress is debating whether to increase these visas to
help relieve the backlog, as well as granting legal status to some of
the estimated 12 million illegal immigrants.

Immigration ”law is really geared toward helping the rich and
famous,” says David Whitlock, a partner who heads immigration practice
at Fisher & Phillips in Atlanta.

Most industrialized countries have an immigrant pecking order, notes
Alan Gordon, a Charlotte, N.C., immigration lawyer who recently helped
a Canadian racing phenom enter the country.

DEPP SKIPPED LOTTERY

”How did Johnny Depp get to live in France? Did he go through a
lottery system?” asks Gordon. “No. It’s because he’s spending money.”

Indeed, countries have always welcomed the elite.

”And maybe rightly so,” says Steve Hader, a lawyer with the
Charlotte office of Moore & Van Allen who helped set up Beckham’s
upcoming visit to the United States. “Maybe you want the best and the
brightest.”

The Beckhams stand to make money on their upcoming summer trip, so
they are required to secure work visas, not tourist credentials. He
launched a youth soccer academy in Los Angeles last year, with the hope
of identifying talent to compete for U.S. teams on the world stage.

Victoria has a fragrance and clothing line ”and still performs,” Hader says.

Some 11,960 esteemed scientists, doctors, musicians, professors,
athletes and captains of industry and their family and support
personnel arrived in 2005, up more than 145 percent since 1995,
according to the State Department’s Bureau of Consular Affairs.

Hader has prepared O-1 visas for A-list singers, actors, actresses,
scientists and even a celebrity chef. Client confidentiality precludes
him from revealing names. Beckham gave the OK because he wants the
press for his academy.

O-1 applicants must be international superstars in their
professions. The State Department recognizes Academy Awards, peer
adulation, press coverage in ”major newspapers,” and/or ”a high
salary . . . in relation to others in the field,” among other factors.

Beckham plays for the Spanish club Real Madrid and is captain of England’s national team in this year’s World Cup.

Beckham was memorialized in the 2002 movie Bend It Like Beckham
for his signature long kick, with the ball curving in flight. The fact
Beckham is married to one of the Spice Girls is an added bonus, or
curse, depending on which side of the paparazzi you’re standing.

Continue reading

Consular processing for B, F and J nonimmigrant visa applicants

Section 214(b) of the Immigration and Nationality Act (INA) is the basis for a substantial number of denials of nonimmigrant visa applications at the consular level.  It reads;“Every alien shall be presumed to be an immigrant until he/she establishes to the satisfaction of the consular officer, at the time of application for admission, that he is entitled to a nonimmigrant status…” In short, this section of the INA presumes every applicant for a visa to America intends to reside in America.  It is the burden of each visa applicant to demonstrate that this is not the case – that they only intend to visit America for a short duration. In qualifying for a B (Visitor) F (Student) or J (Exchange Visitor) visa, an applicant must demonstrate compliance with this section of the law.  (Note that these requirement do not apply to H or L Visa holders who can maintain ‘dual-intent’).

Consular officers have the last word in deciding who may enter the US.  They begin by evaluating each applicant for a non-dual-intent visa (B, F, J among others) to determine whether the applicant has strong ties abroad.  Some examples of ties can be a job, a house, a family, and a bank account. These ties bind an applicant to their home country and demonstrate that they will return after the trip to America. Despite the fact that consular officers attempt to provide a case-specific evaluation, they have limited time allotted to each client. It is imperative that the applicant have a well documented and organized petition which demonstrates the strength of the case by providing evidence of strong ties. Unfortunately, as you can imagine, these requirements are somewhat harder to prove for younger applicants, or for those applicants who have a Green Card pending (which manifests a future intent to abandon the home country and reside in the US).

The applicant should also document how they will support themselves financially for the visit and why they are visiting the United States.  Temporary trips of a short duration, for a specified period of time – with clearly defined start and end dates (such as a marriage, education, graduation or a religious event) are more likely to be approved. Remember that an invitation letter and evidence of funds of the American ‘sponsor’ are of limited benefit to the applicant – the consular officer is mainly concerned with the qualifications of the applicant themselves.

An applicant who has been refused can attempt to enter the US again since a denial under section 214(b) is not permanent, however, the more times an individual is turned down the harder it becomes to become eligible for subsequent approvals. The consular officer will only reconsider a case if an applicant can show additional evidence of ties outside the United States. The applicant’s situation must have substantially changed since the last application. Demonstration of strong ties is still key.

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