According to news sources on May 25, 2011, Infosys Technologies Ltd., a large Indian software concern known as an outsourcing company that provides India-based computing and other technology services, is apparently being investigated by U.S. Immigration and Customs Enforcement with respect to its use of B-1 business visas. The company has stated that it has received a subpoena from a grand jury in the United States District Court for the Eastern District of Texas requiring it to provide information regarding its sponsorship for, and use of, B-1 business visas. The investigation appears to have been prompted by a lawsuit filed in an Alabama state court by an Infosys employee alleging that the company misused the B-1 visa program. At the heart of this investigation is the fact that U.S. visas are category-critical, meaning that each visa category is intended for a separate and distinct purpose. In the case of Infosys, the company is alleged to have supported B-1 visa applications by its employees to come to the United States for purposes more suited to another employment-authorized category known as the H-1B visa category.
Whereas an H-1B visa category permits U.S. employment, it is more costly and harder to obtain, and is limited by an annual quota of 65,000 available visas (plus an additional quota for persons with advanced degrees). The B-1 visa category, on the other hand, is cheaper and faster to obtain and is not subject to a quota, but does not authorize employment in the United States. More specifically, the B-1 visa category is intended for foreign nationals who are seeking to enter the United States for relatively short periods of time to engage in commercial transactions, such as negotiating contracts, litigation, and consulting with clients or business associates; to participate in various types of conventions and meetings; and to engage in certain other activities, none of which amount to gainful employment. Given the rigorous demands of business and the need to keep visa costs and processing times down, there is sometimes a temptation to characterize a foreign national’s intended activities in a manner that, on the surface, may appear to fit the B-1 visa category, when such intended activities, on closer scrutiny, amount to gainful employment. The lesson here for HR professionals and others is that great care should be taken to match a person’s proposed visa category with such person’s intended duties while in the United States. With greater scrutiny by consular and immigration officials and as the Infosys case illustrates, it is better to follow a more measured course and stay as clearly as possible within the activities permitted for a given visa category. Decisions driven by cost savings and expediency can land a company in hot water.