'Infosys asked its employees to mislead US officials'
"To circumvent the requirements, limitations, and governmental oversight of the H-1B visa programme, Infosys committed visa fraud by knowingly and unlawfully using B-1 visa holders to perform skilled labour in order to fill positions in the United States for employment that would otherwise be performed by United States citizens or require legitimate H-1B visa holders, the US Attorney, John M Bales said.
This was "for the purposes of increasing profits, minimising costs of securing visas, increasing flexibility of employee movement, obtaining an unfair advantage over competitors, and avoiding tax liabilities," Bales, said in his complaint, which was released to the press after Infosys agreed to pay USD 34 million to settle the charges.
Infosys also failed to monitor the status of foreign nationals that they had sponsored for travel and placement in the United States by failing to maintain accurate I-9 forms and records for each foreign national as required by law, Bales said.
As a matter of practice, Bales alleged, Infosys submitted "invitation letters" to US Consular Officials that contained materially 'false' representations regarding the true purpose of a B-1 visa holder’s travel in order to deceive US Consular Officials and/or Customs and Border Protection Officers and secure entry of the visa holder into the United States.
“These 'invitation letters' often stated that the purpose of travel was for “meetings” or “discussions” when the true purpose was to engage in activities not authorised under a B-1 visa,” he said.
Giving an example, Bales said an invitation letter submitted on or about July 3, 2008, relating to an individual identified as MG, stated that the purpose of the trip was for “customer discussions and related business development activities,” when, in fact, as known by Infosys, the purpose of the trip was to engage in activities not authorised under a B-1 visa, which included, but was not limited to, coding and programming.
In his complaint running into nine pages, Bales has sought to provide many such examples.
Reacting to the charges, Infosys, however, denied any visa fraud and misuse.
Court documents alleged that the "invitation letters" to the US consular officials often stated that the purpose of travel was for "meetings" or "discussions" when the true purpose was to engage in activities not authorised under a B-1 visa.
The US government alleged that Infosys directed B-1 visa holders to deceive US consular Officials, including specific instructions to avoid certain terminology, to secure entry of the visa holder into the United States.
"Infosys created a "Do's and Dont's" memorandum that it provided to foreign nationals entering the United States on a B-1 visa that included the following directions: Do not mention activities like implementation, design & testing, consulting, etc., which sound like work; Also do not use words like, work, activity, etc., in the invitation letter; and Please do not mention anything about contract rates," it said.
According to the US government, Infosys told its foreign nationals to inform US Consular Officials that their destination in the United States was the same as that provided in the Labour Condition Application, notwithstanding the fact that Infosys knew that the destinations had changed.
"Infosys wrote and revised contracts with clients in order to conceal the fact that Infosys was providing B-1 visa holders to perform jobs that involved skilled or unskilled labor that were otherwise required to be performed by United States citizens or required legitimate H-1B visa holders," it said.
The Department of Justice alleged that Infosys concealed the fact that B-1 visa holders were performing jobs that involved skilled or unskilled labor that were otherwise required to be performed by United States citizens or required legitimate H-1B visa holders by billing clients for the use of off-shore resources when, in fact, work was being performed by B-1 visa holders in the United States.
"Infosys failed to maintain I-9 records for many of its foreign nationals in the United States in 2010 and 2011 as required by law, including a widespread failure to update and re-verify the employment authorization status of a large percentage of its foreign national employees," it said.
The settlement agreement requires Infosys to make a payment of USD 34 million to the United States government.
"The agreement was largely predicated on Infosys's cooperation with US during the investigation and on compliance measures taken by Infosys in the areas of B-1 and H-1B visas and I-9 documentation, both prior to and during the course of the investigation," the Justice Department said.
The settlement agreement requires additional auditing for I-9 forms; a reporting requirement for B-1 usage; an agreement to continue to use only detailed invitation letters, and the continued use of corporate disciplinary processes for employees that violate the immigration laws of the United States, the Justice Department said.
Infosys in its statement said only 0.02 per cent of the days that Infosys employees worked on US projects in 2012 were performed by B-1 visa holders.
"The settlement is focused on historical I-9 paperwork errors from 2010-2011 that Infosys began correcting before the investigation began. There is no evidence that the I-9 paperwork violations allowed any Infosys employee to work beyond their visa authorization," Infosys said.
"Our company policy demands adherence to all laws, rules and regulations everywhere we operate, and we take our compliance obligations seriously. In the settlement agreement, the US government acknowledged that Infosys demonstrates a commitment to compliance with the immigration laws through its current visa and I-9 practices," Infosys said.
"This settlement removes the uncertainty of prolonged litigation and allows us to continue to focus on delivering measurable results for our clients," the statement said.