On October 30, 2013, the U.S. Department of Justice ("DOJ") settled allegations that Infosys Corporation ("Infosys"), an Indian consulting company, engaged in systematic visa fraud and abuse of immigration procedures. DOJ alleged three main categories of violations. First, DOJ claimed that Infosys made misrepresentations in the process of using the B-1 business visitor classification by claiming that workers were coming for meetings and business discussions, when, in reality, they were coming to perform skilled work. In this regard, DOJ alleged that Infosys directed B-1 visa applicants to deceive U.S. Consular Officials by misrepresenting the true purpose of their visits. DOJ also claimed that Infosys prepared contracts with clients to conceal the fact that Infosys was providing B-1 visa holders to perform skilled labor that otherwise would have required a U.S. worker or an H-1B holder to perform. To further conceal its illegal activities, DOJ asserted that Infosys billed clients for the use of off-shore resources, when, in fact, the work was performed by B-1 visa holders in the United States.
Second, DOJ claimed that Infosys failed to obtain an approved LCA for each location where an H-1B employee would work. Infosys allegedly told H-1B employees to represent to the government that they would be working at destinations with approved LCAs, even though Infosys knew that none had been approved for the actual place of their employment.
Third, DOJ alleged that Infosys failed to maintain Forms I-9 for many of its workers in this country. This included widespread failure to update and re-verify the employment authorization of a significant percentage of its FN population.
The settlement agreement includes civil fines of $34 million and continued auditing of Infosys' B-1 and H-1B visa programs and its Form I-9 compliance efforts. For other employers, this settlement provides several important takeaways:
- Monitor B-1 Visitors: Employers need to pay much closer attention to their use of B-1 nonimmigrant visas and, where applicable, the use of the Visa Waiver Program ("VWP") to be certain that all visitors satisfy the legal requirements for these classifications. Especially when the H-1B quota is reached, the USCIS and Customs and Border Protection ("CBP") will closely scrutinize B-1 and VWP visitors to ensure that they are seeking admission to perform activities permitted by the B-1 visa category.
- Monitor Where H-1B Employees Work: If an employer plans to use an H-1B employee at a work site that differs from the one where he or she originally was authorized to work, it must make sure that it has an approved LCA for each site and may consider filing an amended H-1B petition. Under the H-1B program, the H-1B employee must be paid the higher of the actual or prevailing wage where the job is located. When an employee moves, this wage may change. Thus, the USCIS considers it important to secure a new LCA for the new work site to protect the wages and working conditions of American workers there.
- Form I-9 Compliance Is Important: The initial Infosys investigation resulted from a whistleblower complaint about I-9 violations. While Infosys originally implemented an electronic I-9 system in 2009, DOJ alleged that the company failed to monitor that system and that many Forms I-9 either were not maintained or were not re-verified as required by law. Organizations that elect to process Forms I-9 electronically must be sure to monitor these systems to make sure they continue to maintain the documents and/or information required by law.
At Epstein Becker Green ("EBG"), we have formed a comprehensive interdisciplinary task force designed to assist employers with these complicated issues. Contact your EBG representative, or any of the lawyers identified at the end of this Alert, to take advantage of our knowledge and experience in this area.