Wednesday, May 25, 2011

Infosys' Fault?

Not to excuse Infosys's misuse of the B-1 non-immigrant visa for temporary visitors for business, but their co-conspirators were both the Department of Homeland Security and the Department of State. The B-1 visa is defined as a visa designed for temporary visits by aliens to engage in business in the United States. It is not designed to for long-term visit, for aliens to engage in employment in the U.S., nor to replace other non-immigrant visas that allow for employment, such as the H and L catagories of non-immigrant visas. Neither is it a means to replace or substitute aliens for American citizens or nationals, or other aliens authorized employment.

First the back story:

India's global software major Infosys Technologies Ltd is reviewing its procedures to counter the charge of misusing B1 business visas to the US, a senior company official said on Wednesday.

"We are in the midst of internal review of procedures/processes to respond to a US court notice on business visas. We will also cooperate with the investigation into the issues raised by the US Department of Justice," Infosys co-chairman S. Gopalakrishnan said on Wednesday.

Admitting that the company had received a subpoena (directive) May 23 from a district court in Texas for appearance, Gopalakrishnan said it was not the first time, the company was facing such a charge and expressed confidence of clearing its position.

"As we are a listed firm even in the US on Nasdaq, we have informed the SEC (Securities Exchange Commission) that we would soon submit our appropriate response to the court notice and the justice department," Gopalakrishnan affirmed.

One of its employees, Jack Palmer, in an Alabama court in February alleged that the company was sending low-level employees from India to the US to work in full-time posts at its customer sites against the immigration laws. The US immigration authorities issue B1 visas for short-term visits to attend business seminars and restrict employees from engaging in gainful employment during their stay.

Though the $6-billion Indian IT bellwether did not yet receive summons directly from the justice department on the investigation it was carrying out on the visa violation charges, the company has decided to clarify its viewpoint to clear the air by informing the regulator.

"Transparent and ethical way of conducting business being our hallmark, at no time, have we violated state laws or procedures in any country. We have always gone by the rulebook and operated within the regulatory framework," a company official said,
but declined to be named as he is not authorised to speak to media.

Declining to comment on reasons for ordering investigation into the company's use of B1 business visas, the official in the company's human resource department said since the tech meltdown in the aftermath of global recession, demand for US visas under various categories had slumped substantially.

"With increasing offshoring and outsourcing due to convergence of technologies and paradigm shift in business models, the Indian IT services sector has not been utilising the full quota of visas, be it H-1B, L1 or B1," the official pointed out.

According to the May 23 disclosure made to the SEC, the parent company has about 10,000 of its software engineers on H-1B visas and 2200 on L1 working in the US.
Referring to the complaint lodged by its employee, the official said there was no such violation and had sufficient documentary evidence to allay the charges.

In the SEC filing, the company, however, agreed that any action by the US government against it in this regard would seriously affect its business in the North America market, which accounts for about 60 percent of its export revenue.

"In the event of the US government taking action, which limit the B1 business visa programme or other visa programme that we utilise, it will materially and adversely affect our business and results of operations," the company said in the filing.

In April, US Senator Charles E Grassley submitted a letter to Secretary of State Hillary Rodham Clinton and Secretary of Department of Homeland Security Janet Napolitano seeking an investigation into the use of the visa programme.

"I'm very concerned about fraudulent actions that at least one foreign-based company has allegedly been taking in order to get around the requirements and US worker protections of the H-1B visa programme," Grassley wrote in the letter, citing the complaint by Palmer against Infosys.

The clue to the source of the problem is this important piece of information:

According to the May 23 disclosure made to the SEC, the parent company has about 10,000 of its software engineers on H-1B visas and 2200 on L1 working in the US.

Infosys has 12,200 employees on non-immigrant visas with employment authorization. This does not include those aliens that Infosys has sponsored for legal permanent residence (green cards). Here is the issue. Infosys does not like hiring Americans. It is clear that Infosys' business model is dependant on cheap alien labor, much like Chipotle's. However Infosys has the money and political connections that give it immunity from criminal prosecution for discrimination against white American tech workers. No employer would be authorized to hire a workforce that was primarily composed of one race and one nationality, South Asian and Indian citizenship. If a company restricted its employees to primarily white Americans, the EEOC and the Department of Justice would be filing lawsuits at a drop of the preverbial hat.

However, Infosys has been able to continue this racist employment strategy for all of its existence in the United States. And since the Department of Labor (DOL), U.S. Citizenship and Immigration Services (USCIS), and the Department of State (DOS) failed to enforce the laws governing H visas, that is the employer must prove first to the DOL that there are no qualified legal workers in the U.S. who can fill the position and USCIS and DOS failed to perform due diligence concerning DOL's failure, Infosys has become dependant on alien workers. This dependance and failure of the Federal government to enforce various immigration and employment non-discrimination laws caused Infosys to develop an arrogant mentality that it was above the law.

And the proof of their dependance on illegal labor, their own admission:

"In the event of the US government taking action, which limit the B1 business visa programme or other visa programme that we utilise, it will materially and adversely affect our business and results of operations," the company said in the filing.

Therefore it expanded its employment business plan to include illegal use of Indian workers using the B-1 visa. However, Infosys was again aided by the Federal government, this time U.S. Customs and Border Protection and DOS were the agencies assisting Infosys' fraud scheme.

First, CBP changed its policy on the time of admission given to B-1 business visitors. No legitimate business visitor needs more than a few days, at best a couple of weeks, to perform any legitimate business dealings. Business travel is incredibly expensive, especially given the huge expense of travel from India to the U.S. Up until a few years ago, the predecessor to CBP, the legacy Immigration and Naturalization Service, gave business visitors only a maximum of one month's time as the period of admission. This was more than enough for 99% of business visitors. Most stayed only a few days. The few who needed more could apply for more time and give a fuller explanation of their needs and their legitimacy.

However, CBP decided, undoubtedly under pressure the the Bush Regime, to expand that to six months. That is an incredible amount of time for supposed temporary business visitors. Think of the expense of living in a hotel for six months. Clearly that is beyond any rational business decision. It is clear that with six months admission, Infosys thought that it could exploit that decision to bring larger numbers of illegal employees for a longer period of time with little risk of discovery.

To compound the problem, the DOS acceded to Infosys's business plan and issued thousands of B-1 visas to Infosys employees, even though it was obvious that Infosys could have no legitimate legal need for so many short term visas. It should have been clear to Consular Officers that Infosys was acting illegally. It is further clear that DOS must have had orders from the highest level to approve these fraudulent visas.

Similarily, CBP, the agency that inspects and admits aliens applying for admission, was also failing to perform their duties as well. The huge number of B-1 visa applicants from Infosys should have raised alarm bells. It should have been painfully obvious to CBP that there was systematic fraud. Again, only word from on high could have allowed this fraud to continue for long.

So, don't blame Infosys alone, they had co-conspirators at the highest level in DOS and CBP, as well as DOL and USCIS.


Matrix said...

I am working with Infosys

Federale said...

Any insights to the issues?