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By: Bruce Buchanan, Sebelist Buchanan Law
A Virginia attorney, Sunila Dutt, pled guilty in a New Jersey federal court to criminal charges for submitting false documents to USCIS and Department of Labor and obstructing an investigation. These acts were part of a scheme to fraudulently obtain H-1B visas for foreign workers of two information technology companies, SCM Data Inc. and MMC Systems Inc.
SCM Data and MMC Systems conspired with Dutt to falsify paperwork submitted to the federal government that stated the workers had full-time “in house” positions with the companies. In fact, SCM Data and MMC Systems would only pay the foreign IT consultants after placing them in roles working for third-party clients. Dutt also provided fabricated employment documents to the DOL after it started an audit of both companies. Furthermore, Dutt advised one of the foreign workers to lie to the USCIS about living arrangements to extend visa status.
Dutt will be sentenced in February 2017 at which time he faces up to five years in prison and a $250,000 fine.
By: Bruce Buchanan, Sebelist Buchanan Law
An Administration Law Judge of the Department of Labor has found another instance of an H-1B violation by the petitioning employer. In this case, the ALJ ordered Fischer Health & Rehab Center LLC, a company based in New Jersey, to pay Virgilio Ruiz Jr., a Filipino national, $60,000 in back wages for violations of the H-1B visa program. This order was based upon a consent decree with Fischer Health & Rehab Center.
The H-1B validity period was December 6, 2010 until October 1, 2013. The back wages will be paid out as follows: $25,000 upon execution of the agreement followed by five monthly payments of $7,000 each.
As a reader of my immigration compliance blog, you may have observed an increase in H-1B violation and/or fraud cases. There is no clear answer why but one can speculate employers believe H-1B employees will just go along with the employer’s scheme and not file a complaint. These cases demonstrate this assumption is incorrect.
By Bruce Buchanan, Siskind Susser
On November 20, 2015, a North Texas federal jury convicted two brothers of felony visa fraud based on their conspiracy to secure a low-cost workforce at Dibon Solutions, their North Texas information technology consulting company, from March 2005 to February 2011.
Atul Nanda and Jiten Nanda were each convicted on one count of conspiracy to commit visa fraud, one count of conspiracy to harbor illegal aliens, and four counts of wire fraud. The conspiracy to commit visa fraud count carries a maximum statutory penalty of five years in federal prison and a $250,000 fine. The conspiracy to harbor illegal aliens count carries a maximum statutory penalty of 10 years in federal prison and a $250,000 fine. Each wire fraud count carries a maximum statutory penalty of 20 years in federal prison and a $250,000 fine.
The government presented evidence at trial that as part of their scheme, the Nanda brothers recruited foreign workers with expertise who wanted to work in the U.S. The brothers sponsored the workers' H-1B visas with the stated purpose of working at Dibon headquarters in Carrolton, Texas. In fact, however, the business did not have an actual position at the time that the workers were recruited. The brothers knew the workers would ultimately provide consulting services to third-party companies located throughout the U.S. Contrary to representations made by the conspirators to the workers, Jiten and Atul Nanda directed that the workers only be paid for time spent working at a third-party company and only if the third-party company actually first paid Dibon for the workers' services. Additionally, in Dibon's visa paperwork, the brothers falsely represented that the workers had full-time positions and were paid an annual salary, as required by regulation to secure the H-1B visas.
This scheme provided the conspirators with a labor pool of inexpensive, skilled foreign workers who could be used on an as-needed basis. The scheme was profitable because it required minimal overhead, and Dibon could charge significant hourly rates for a computer consultant's services. Thus, the Nandas earned a substantial profit margin when a consultant was assigned to a project and incurred few costs when a worker was without billable work. This scheme is known as "benching."
The government presented further evidence that the Nandas required the H-1B visa candidates to pay the processing fees that the law requires to be paid by the company. The evidence presented at trial showed that the Nandas attempted to hide this by having the H-1B candidates pay the fees directly to Dibon either with cash or a check written to "Dibon Training Center."
These convictions are prime examples of the criminal penalties that one can receive for H-1B fraud. They also add “fire” to arguments raised by Senator Charles Grassley of the abuses in the H-1B visas.
The U.S. government’s recent $34 million settlement with India-based Infosys Limited over alleged visa fraud and I-9 violations sheds more light on the H-1B visa program at a time when proposed immigration reform would change the number of visas that employers may obtain.
With a current annual cap of 65,000 visas for the H-1B category, the U.S. government alleged Infosys circumvented the H-1B cap by misusing a different, and cheaper, visa category –the temporary B-1 visitor visa– to bring computer programmers and coders from India to the United States to perform work that required legitimate H-1B visa holders or authorized workers. Generally, B-1 visitors are not authorized for employment and may only enter the United States temporarily for limited business purposes; for example, to attend business meetings or conventions. B-1 visitors are not permitted to remain in the United States and accept employment, regardless of whether they perform skilled or unskilled labor.
The investigation into Infosys’s conduct involved numerous federal agencies, including the U.S. Attorney’s Office, Immigration and Customs Enforcement (ICE) and its Homeland Security Investigations (HSI) division; U.S. Citizenship and Immigration Services (USCIS); Diplomatic Security Service (DSS); and the Department of State (DOS).
In addition to visa fraud, the U.S. government investigated I-9 form violations by Infosys. The government alleged Infosys “failed to maintain accurate I-9 forms and records” and did not “update and re-verify the employment authorization status of a large percentage of its foreign national employees for each foreign national as required by law” - the Immigration Reform and Control Act of 1986.
As part of the settlement agreement, Infosys agreed to undergo I-9 form audits for two years at its own expense to ensure compliance. For the same period, Infosys’ B-1 visa filings and related documents submitted to the government’s immigration bureaus will be subjected to further scrutiny and random sampling. The findings for both years will be reported to the U.S. Attorney for the Eastern District of Texas to determine whether Infosys remains in compliance with the settlement agreement.
Infosys’ $34 million penalty is a reminder that employers must institute policies and internal control systems, and abide by such, to prevent violations of immigration laws when employing domestic or foreign workers.