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The Day Tech Workers Were Outraged
Wednesday, March 1, 2000

For the technology community that has shaped a lot of what is known as Silicon Valley, what passed in San Antonio, Texas was a rude shock.
On January 20, Immigration and Naturalization Service officials swooped down on the Randolph Air Force Base; segregated on the basis of race, detained, questioned, arrested, handcuffed and humiliated with racial comments some 40 computer professionals who worked there with valid nonimmigrant working visas, or H-1B visas. It also threw some of them into jail for a night until they could secure the bail bonds. (See “Diary of An Anonymous Victim, also in this month’s issue”)

The incident has not only outraged Indian high-tech professionals; it has sent shock waves across this country’s entire immigrant community. Amba-ssador Naresh Chandra protested with the State Department; activists submitted protests; angry professionals raved and ranted on email forums; and some lamented the lack of mainstream media coverage of the event.

The drama ended in a way when, on Feb. 18, 29 days after the arrests, the INS dropped charges against the Indian professionals but retained the option of getting after the two companies that employed them.

The attorney for one of the companies feared notices revoking the visas of its employees,in which case the Indian workers may still have to leave the country.

In the Wake, Questions

The sheer humiliation caused by the episodes has also raised a number of questions in the minds of Indian professionals: Why were Indians singled out? Why did the officials seem to go out of their way to humiliate the Indians they arrested? Now that the threat of the Y2K bug has passed, does the US no longer need or want the services of technology professionals from India?

However the INS may defend its actions, one thing is clear: the INS violated the spirit of the law — and probably the letter of the law, too. Attorneys say there were many options the INS had in pursuing investigations to examine if the two Houston companies involved, Frontier Consulting Inc. and Softech Consulting Inc, had violated the law. The option the INS pursued was not even an option.

If, as the INS alleges, the professionals were permitted to work only in Houston and not San Antonio, could have simply revoked the visas by issuing a notice to the two companies. Adan G. Vega, the attorney for Frontier, offers this analogy: Imagine yourself driving down the street with a valid driver’s license and insurance. A police officer stops you, saying, “Hey, it is illegal for you to drive.” You respond, “Here is my license.” To which the officer responds, “Well, I revoke it just now.”

Vega contends that the normal course of action would be to first revoke someone’s license or visa, and arrest the holder only upon further violation. The visas of the 40 professional were never revoked —in fact, notices for revocation were never even issued, therefore the visas should be considered valid and proper, according to Vega.

The INS refused to accept such arguments. “If someone commits a crime in San Antonio, someone isn’t going to call them up and say, ‘We’re going to arrest you,’” INS assistant district director of criminal investigations Thomas Homan was quoted as saying in The San Antonio Express-Nation. “The immigration service is sending a message. We’re not going to tolerate companies or individuals who knowingly violate immigration law.”

Legal Matters

The argument stirs a hornet’s nest. Consultants say their job, by definition, is transitory, from one contract to another. About the only thing that varies is the amount of travel required on the job. Some travel more, some travel less. Under the circumstances, LCAs, which are a prerequisite to the grant of H-1B visas, have no meaning and if the INS were to prosecute on the basis of this, all foreign consultants working in the US would be working illegally. Consultants range from those who work for small firms on to those who work for the big accounting and consulting firms such as Pricewaterhousecoopers, or Andersen Consulting. Both sets of companies petition and receive approvals for H1-B visas by filing LCAs at any one center in the country, but deploy these personnel in different parts of the country at different times.

In fact, this is what the law firm of Oh and Harjani noted in a warning posted on its Web site following the San Antonio incident: “It is very unfortunate in that the H-1B workers are in most cases victims rather than intentional violators of the laws. The foreign consultants are assigned with the specific job sites and projects at specific locations by the employers and most of these foreign consultants rely on employers taking proper legal steps before they are assigned to work with specific clients or specific geographical locations.”

Attorneys for the two firms are contesting not just the law, but also the facts. While Frontier contends that it possesses valid LCAs for the San Antonio area itself, the Softech attorney contends that the INS is wrong in its interpretation of the law.

Rahula Reddy, attorney for Softech Consulting, told siliconindia the arrests violated a 1996 US district court judgment that struck down six provisions of a Department of Labor regulation including the one that governs “roving H-1Bs,” or foreign nonimmigrant workers who are in this country on valid H-1B visas and may work in a city other than in which the LCA was originally approved.

A US district court, in National Association of Manufacturers versus the Department of Labor, ruled that the DOL regulations were void because the “DOL failed to provide adequate opportunities for notice and comment to the public before promulgating H-1B regulations.” Since the court ruling, the DOL has indicated that it would frame new regulations including those to govern “roving” — but none has been forthcoming, Reddy said.

In fact, the American Immigration Lawyers Association (AILA) has taken up this issue with the INS. In a letter to Executive Associate Commissioner for Field Operations Michael Pearson, the AILA wrote, “The placement of the employees at the San Antonio site is fully permissible under current law. Thus, there was no violation on which to base an enforcement action.” Besides, the AILA charged, even if there was a violation, the alleged acts were by the employers, not the employees, who were working in accordance with the terms of their status.

In addition, contends the AILA, the INS has itself violated a law. Since the enforcement action, the INS has been preventing the employees from working, thus forcing their employers to violate the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) and robbing the employees of their legitimate ability to support themselves and their families.

As the 40 professionals bide time, they have embarked on a mission: to raise legal awareness among foreign workers, advise them of the facts and caution them of the pitfalls. Such advice was being doled out on the Web site www.h1bvictims.com, where they first posted a statement on the incident. The Web site drew heavy traffic and a variety of comments sympathizing with their plight. In fact, the traffic was so high, the professionals had to temporarily halt further postings on the site, and eventually shut down, reportedly because the INS officials conducting the negotiations protested.

It is not known how long the INS may take to finally settle the case or initiate action against the companies involved. The department has received a lot of flak from a variety of sources including the State Department, where Assistant Secretary of State Karl Inderfurth expressed “regret” to Indian Ambassador Chandra. In its only move since the incident happened, the INS took the case off the San Antonio District Center and asked its Regional Center in Dallas to investigate the case and initiate appropriate action. Attorneys for the two companies are optimistic that the INS has no case, and the professionals should be able to get back to work sooner rather than later. Even if unjust proceedings were halted today, many who were in the thick of it are not going to forget it in a hurry.

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