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Government, H-1B Temporary Work Visa Holders Fight Against Unlawful Practices by Employers

USA_Visa_-_Arg.jpgThe H-1B program is no stranger to controversy, but a recent report by NBC Bay Area and The Center for Investigative Reporting (CIR), based on a lengthy investigation, provides a comprehensive look at the problems faced by many specialty guest workers. India accounts for the greatest number of H-1B visa holders every year. Indian guest workers may be most susceptible to companies that allegedly violate various requirements of the H-1B program, withhold workers’ wages, and engage in other unlawful practices. The federal government has fought these practices in both civil and criminal cases, and workers have sought relief for violations of state and federal employment laws.

H-1B visas are available to workers in specialty occupations, meaning jobs that require a bachelor’s degree or higher in a specific field. Technology companies in Silicon Valley and elsewhere hire thousands of H-1B workers every year. Federal law caps the total annual number of new H-1B visas at 65,000, and the available slots fill within days. According to NBC Bay Area, about 64 percent of H-1B visas went to workers born in India in fiscal year 2012, six percent more than the previous fiscal year.

Companies described as “body shops” have been accused of violating the law by petitioning for H-1B visas on behalf of thousands of workers from countries like India. A worker must have an “employer-employee” relationship with the petitioner. The body shops allegedly falsely claim that a job is already waiting for the worker, when they actually operate as staffing consultants for the tech industry, providing H-1B workers on a contract basis.

The federal government investigated one Indian company for multiple alleged immigration law violations, including using B-1 tourist visas for work requiring an H-1B visa. United States v. Infosys Limited, No. 4:13-cv-00634, complaint (E.D. Tex., Oct. 30, 2013). The company settled the government’s claims for $34 million, but it now faces a whistleblower lawsuit, originally filed in New Jersey, by the employee who reported the matter to the government. Palmer v. Infosys Limited, et al, No. 3:14-cv-06122, complaint (D.N.J., Oct. 2, 2014), transferred to No. 6:14-cv-00905 (E.D. Tex., Dec. 8, 2014). In a criminal visa fraud matter, a California man employed by a body shop was sentenced to 10 months in prison and ordered to forfeit $100,000 for submitting H-1B visa petitions claiming nonexistent job offers. United States v. Patwardhan, No. 5:13-cr-00200, indictment (N.D. Cal., Mar. 27, 2013).

Workers have filed their own lawsuits, claiming non-payment of wages and other unlawful practices. In one case, a plaintiff alleged that the defendant unlawfully required him to pay the costs of the visa petition, forced him to look for his own work placements, and failed to pay him for the work he did. Bathla, et al v. Silicon Valley Systech, Inc., No. 1-09-CV-136380, complaint (Cal. Super. Ct., Santa Clara Co., Mar. 3, 2009). Another class action by H-1B workers resulted in a $29.75 million settlement for unpaid wages and other damages after years of litigation. Vedachalam v. Tata International Corp., et al, No. 4:06-cv-00963, complaint (N.D. Cal., Feb. 14, 2006).

Immigration attorney Samuel C. Berger helps immigrants obtain visas and green cards, and advises families and businesses on how to petition for immigrants to come to the U.S. To schedule a confidential consultation with a skilled and experienced immigration advocate, contact us today online or at (212) 380-8117.

More Blog Posts:

Federal Government Begins Allowing Electronic Travel Documents for Nonimmigrant Visitors, New York & New Jersey Immigration Lawyer Blog, July 23, 2014
USCIS Increases Investigations of L-1 Visa Holders and Employers, New York & New Jersey Immigration Lawyer Blog, June 25, 2014
Cap on H-1B Temporary Worker Visa Petitions Reached in Less than a Week, New York & New Jersey Immigration Lawyer Blog, May 14, 2014
Photo credit: By Pmt7ar (Own work) [Public domain], via Wikimedia Commons.