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The Aftermath of the Infosys Settlement A Potential Trap for the Unwary Business Visa Applicant
Nicolette Glazer
Monday, February 10, 2014
The recently concluded investigation of the Indian IT outsourcing giant Infosys may lead to an additional challenge for qualified foreign-born professionals seeking to enter or remain in the U.S. increased scrutiny of business activities while in B-1 status. While a detailed analysis of the Infosys case is beyond the scope of this article, a brief synopsis reveals the potential pitfalls for B-1 applicants in the wake of the Infosys matter.

Following two "whistleblower" civil lawsuits filed by Infosys employees alleging retaliation for objecting to perceived illegal immigration practices, the Texas United States Attorney's Office, in collaboration with the Department of Homeland Security, initiated proceedings against Infosys seeking civil and criminal penalties. The U.S. Government accused the company, which had until that time enjoyed an unblemished reputation for integrity and reliability, of engaging in a pattern and practice of visa fraud by, among other actions, preparing and submitting misleading invitation letters for IT professionals in support of applications for B-1 visas. Infosys submitted letters to consular officers claiming that their applicants sought to enter the U.S. to engage in meetings and business discussions; the Government alleged that the real purpose of these visits was to perform skilled labor for hire. The company denied any wrongdoing and pointed to controlling authorities permitting the use of the B-1 visa category for necessary, temporary activities incident to international trade.

On 30 October 2013, the U.S. Attorney's office announced a 34 million dollar settlement with Infosys. The company avoided criminal liability and debarment from submitting immigration petitions and applications. The settlement stipulates that the allegations levied against Infosys and information obtained by the government during the course of the investigation will not be used to revoke already approved visas or petitions or to deny future visas or petitions filed by Infosys. Of course, it remains to be seen whether USCIS and consular officers make good on the Government's pledge to Infosys that "each visa or petition will be evaluated on its own merits."

Most significantly, Infosys agreed to change its practices and accepted that each of its B-1 visa applicants "must provide a detailed description of the activities that will be performed by that applicant at the time of each entry into the United States." One should now anticipate that consular officers, CBP border inspectors, and USCIS adjudicating officers will adopt this "detailed description" as a standard requirement for future applicants whether affiliated with Infosys or not. Long suspicious of the misuse of the B-1 category, adjudication officers are likely to scrutinize even more closely invitation letters and engage in detailed examinations of prior activities in cases in which an IT professional and applicant for an immigration benefit has entered the U.S. using a B-1 category. Buzz words such as "coding", "programming" and "involved in meetings and business discussions" so often found in invitation letters submitted in support of prior B-1 visas may trigger an investigation of prior non-compliance with accorded status or a charge of obtaining or seeking to obtain entry or admission through material misrepresentation and thus a denial of an adjustment of status application or an application for naturalization. The reason: any document submitted in support of an application for an immigration benefit remains in the A-file and is easily accessible to an officer conducting an adjudication of a subsequent application. A long forgotten letter submitted in support of a B-1 visa or extension of status application ten years earlier could result in the denial of an application for adjustment of status (green card) because of the unforgiving technicalities of immigration law.

The H-1B visa is a non-immigrant visa that allows a U.S. employer to temporarily employ a foreign national in a "specialty occupation."A specialty occupation is one that requires a theoretical and practical application of a body of specialized knowledge and attainment of a bachelor's or higher degree or its equivalent. The application process is highly regulated and requires the submission of a Labor Condition Application that describes the intended occupation, the wages, and the specific geographical place of employment. The annual cap for new H-1B visa issuances is $65,000, with an additional $20,000 for graduates of U.S. educational institutions holding master or doctoral degrees.

The B-1 visa is a non-immigrant visa that allows a foreign national to temporarily enter the United States for business purposes. The B-1 visa cannot be used to perform skilled or unskilled labor for hire. B-1 visas are not limited in numbers per year and the application process is short and simplified. The Department of State's Foreign Affairs Manual and the Department of Homeland Security's Inspector's Field Manual interpret permissible B-1 activities to include engaging in commercial transactions (e.g., buying or selling) that do not involve gainful employment in the United States; negotiating contracts; consulting with business associates and potential clients; participating in short term training; attending meetings, conventions, trade shows; or undertaking independent research.

A rarely used "B-1 in lieu of H-1B" hybrid was created to facilitate the entry of individuals who would otherwise qualify for an H-1B visa but need to remain in the United States for a limited period of time. Many of the activities alleged to have been performed by the Infosys consultants in contravention of the B-1 rules may have been permissible under the "B-1 in lieu of the H-1B" hybrid.

The inherent ambiguities of the B-1 and B-1 in lieu of H-1B visa classifications, while of tremendous benefit to U.S. companies and their foreign partners, are a double-edged sword. The Infosys experience is a cautionary tale for the B-1 visa: while providing a quicker, more efficient alternative to the H-1B, misuse of the B-1 visa can lead to devastating consequences. Put simply, the B-1 visa should never be used to skirt the requirements of the highly regulated H-1B process.

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