Articles Posted in H1B Employee Rights & U Visa

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Visa.Dollar.Photo.3.3.16.jpg The New York City Commission on Human Rights (“CCHR”) has recently become the first and only anti-discrimination agency in a major U.S. city to provide U and T Visa certifications. As our Award Winning New York Anti-Discrimination Attorney has written extensively on the CCHR, he has been asked to review and comment, generally, on the recent changes to the law. This blog generally discusses U Visa and T Visa certifications.
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Hand.Discriminating.Gold.Fish.Dollar.Stock.Photo.4.16.15jpg.jpgOur New York Employment Law Attorney has been asked to discuss a recently filed employment discrimination class action lawsuit filed in federal court against Tata Consultancy Services Ltd. (“TCS”). TCS provides consulting, technology and outsourcing services. It is one of the largest IT employers in the world and it has approximately 20 offices throughout the country. In short, Steven Heldt, a former IT worker at TSC, is alleging that TCS engages in an intentional pattern and practice of discriminating against individuals who are not South Asian in hiring, placement and termination determinations.

The lawsuit includes the following statistic of the TCS workforce: 95% of TCS’s United States workforce is of out South Asian descent. The complaint further states that this disportionate percentage in the TCS workforce is not consistent with the United States overall average (i.e., 2%) for South Asians employed in the IT field. In addition, the plaintiff alleges that TCS prefers hiring South Asians over “American hires.” Specifically, the lawsuit alleges that one HR manager “expressed his dislike for hiring American workers.” Further, the lawsuit claims that TCS hires many immigrant workers from South Asia through immigration petitions (e.g., H-1B visa). The plaintiff is seeking class action status on behalf of all individuals who are not of South Asian race who applied for positions at TCS and were not hired, were demoted or terminated. The plaintiff claims that TCS’ practices violate Title VII of the Civil Rights Act of 1964.

TCS has denied the allegations and stated that it is an equal opportunity employer. It has stated that it will vigorously defend the lawsuit.

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Thumbnail image for Thumbnail image for above-the-bar-logo-no12.jpgWith each passing year, the number of regulations being placed on employers in New York State is increasing. Today’s topic, although not a new regulation, is a critical one that is often overlooked and can pose a significant risk for small businesses and their owners personally. On November 6, 1986, the Immigration Reform and Control Act was passed and thereafter it required employers to verify the identity and employment eligibility of their employees and failure to do so can result in civil penalties and criminal enforcement. See Section 274A(b) of the Immigration and Nationality Act (INA). In short, employers cannot hire undocumented workers. Employers must use a Form I-9 (formally called an Employment Verification Form) to document and verify. Importantly, completion of this short three page I-9 form is required for ALL employees of the company. It may sound like a simple process to only hire employees authorized to work in the country, verify it and then document it but many companies are negligently or intentionally making errors regarding compliance and the Immigration Customs and Enforcement (ICE) has taken note and is conducting targeted and random audits and issuing determinations with substantial economic penalties. Indeed, Infosys Corporation was issued a $34 million dollar fine for systematic visa fraud and related violations of the law. While that case involved systematic fraud, it has served as a wake-up call for all businesses to conduct internal audits before an official inquiry is commenced. If you have any questions about your workforce or employment practices, contact our Award-Wining New York Employment Lawyer at (800) 893-9645 for a confidential consultation to understand your legal obligations and potential exposure. We have helped many small businesses implement and maintain best practices to protect and defend their businesses.

When Do Employers Complete the I-9 Form and How Long Do They Need To Retain Them?

Employers must start the verification process on or before the first day of an employee’s employment and must complete the documentation process within three business days of after the hire date. The third page of the form contains a list of acceptable documents for the employee to select and provide to prove eligibilty to work in the United States. A sample copy of the I-9 form can be found here.

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above-the-bar-logo-no12Our Award-Winning Employment Law Attorneys are often asked to comment on the H-1B employee rights. You or someone you know may be working for a company committing immigration fraud and not even know it! So, how do you know if this is the case? This blog post will review a settlement the U.S. Attorney’s Office reached with an Indian corporation and will highlight some of the more nefarious examples of immigration fraud committed by the corporation. To learn about your specific situation and how to assert your legal rights in the workplace, contact our H-1B employment attorneys for a confidential consultation at (800) 893-9645.

Federal Prosecutors in Texas revealed that Infosys Corporation, a foreign

corporation engaged in consulting, technology, and outsourcing, agreed to the largest settlement ever recorded in an immigration visa fraud case. Infosys has offices in 17 cities in the United States, including in Plano, Texas, the alleged offending location. Infosys’s Plano office is responsible for, among other things, handling Infosys’s immigration practices and procedures for its U.S. operations. Without admitting any wrongdoing, Infosys agreed to settle claims of systematic immigration fraud and abuse of the immigration process related to H-1B and B-1 visas. The crux of the case was that Infosys was accused of using foreign nationals (B-1 visa holders ) to perform skilled labor that should have been performed by U.S. Citizens, or, H-1B visa holders. These employment visas, also known as business visas, are usually issued to foreign nationals for purposes such as training and attending meetings; not for work purposes. They are limited in number to about 65,000 annually.

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above-the-bar-logo-no12Our award-winning employment lawyers are experienced in representing parties regarding compliance with H-1B regulations and are often asked to discuss the Infosys case. As discussed below, this case highlights the need for proper legal guidance at the outset and particularly immediately if a notice of audit has been issued. Recently, the federal government announced that Infosys Corporation, an Indian corporation engaged in consulting, technology, and outsourcing, had agreed to the largest settlement ever recorded in an immigration visa fraud case. Infosys has offices in 17 cities in the U.S., including in Plano, Texas, the offending location. The Plano office is charged with, among other things, handling Infosys’s U.S. immigration practices and procedures for its U.S. operations. Without admitting any wrongdoing, Infosys agreed to settle alleged claims of systematic immigration fraud and abuse of the immigration process related to H-1B and B-1 visas. The crux of the case was that Infosys was accused of using B-1 visa holders (foreign nationals) to perform skilled labor that should have been performed by U.S. Citizens, or, H-1B visa holders. These employment visas, also known as business visas, are usually issued to foreign nationals for purposes such as training and attending meetings; not for work purposes. They are limited in number to about 65,000 annually. Compliance with the immigration regulations can be tricky and it is advisable to seek experienced counsel. If you have any questions about compliance under the H-1B program or received an audit notice, contact our employment immigration attorneys for a confidential consultation at (800) 893-9645.

Allegations of H-1B Fraud in Infosys Case:

Federal prosecutors had alleged that Infosys systematically abused the visa process, by, among other things, having their foreign national visa holders perform work not authorized by these particular visa holders. Prosecutors alleged that Infosys committed the following immigration related violations:

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above-the-bar-logo.jpgOur New York Business Immigration Lawyers are preparing H-1B applications on behalf of companies and corporate executives, physicians, nurses, software engineers, and other professionals. The United States Citizenship & Immigration Services (USCIS) will start to accept H-1B petitions for the fiscal year 2013 on Monday April 2, 2012. If an application is approved, the H-1B employee can start working for a sponsoring company on October 1, 2012. It is imperative for businesses to analyze their current employment and staffing needs now to determine whether they should file a H1-B application before the visa quota is reached. Contact our NY Immigration Attorneys at (800) 893-9645 to best evaluate your legal options.

Timing is critical because there is a limit of 65,000 on the number of approved H-1B applications. This cap has been met every year sometimes within mere days of when the filings are accepted. Below is a chart which underscores why companies and qualified professionals must act quickly. It is worth noting that companies who try to jump the gun and file before April 1st will have their applications rejected.

Year Cap threshold Date Quota Was Reached

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U visas are designed to help victims of qualifying criminal activities who have suffered substantial physical or mental abuse. Individuals who receive U visas may remain in the United States for up to four (4) years and may eventually apply for lawful permanent residency. U Visas may be a significant tool for undocumented workers. The Wage and Hour Division of the U.S. Department of Labor will review and consider whether specific qualifying criminal activity and workplace abuses are appropriate for a U Visa. The Wage and Hour Division has stated that it will consider completing U visa certifications based on five qualifying criminal activities (listed below) when it detects them in the process of investigating violations of minimum wage and overtime rights.

Examples of Qualifying Criminal Activities for a U Visa

1. Involuntary servitude 2. Peonage 3. Trafficking 4. Obstruction of justice; and 5. Witness tampering.

Analysis of What the Department of Labor Will Consider When Determining Whether To Support a U Visa Petition

The U.S. Department of Labor will consider the following issues: (i) whether the qualifying criminal activity arises in the context of an employment relationship or work environment and there is a related, credible allegation of a violation of a law the Department of Labor enforces; (ii) if the petitioner alleges a qualifying criminal activity of involuntary servitude, peonage, trafficking, obstruction of justice or witness tampering; (iii) the petitioner has demonstrated that he or she has been, is being, or is likely to be helpful to law enforcement officials in any investigation or prosecution of the qualifying criminal activity; (iv) if another law enforcement agency is already engaged in the investigation of the qualifying criminal activity or would be in a better position to certify based on the facts presented; and, (v) whether completion of the U Visa Certification would assist the Department’s investigation of a violation of a law that it enforces.

It is important to recognize that not every workplace abuse will qualify for a U Visa. For example, non-payment of overtime pay for two weeks most likely would not be a basis for a U Visa.

top.lawyers.arrive.mag.2011.jpgOur Employment Law Attorneys have represented clients before the U.S. Department of Labor’s Wage and Hour Division and in the U Visa process and can help you learn and assert your rights – call now to speak with one of our experienced immigration U Visa lawyers at (800) 893-9645.
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Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for above-the-bar-logo-no12.jpgQ: I am an H-1B visa holder and work for a computer software company. Lately, I have noticed that my employer has hired several new people to do the same job I do, but they are B-1 visa holders and are being paid much differently than I am. Is this legal?

A: You ask a great question that not only affects all employees but could also be a violation of many state and federal laws. If you work in a company that employs or does business with H-1B or B-1 visa holders, know your company’s responsibilities and your rights. Call our experienced Employment-Based Immigration Attorneys to help you determine if your employer is committing visa fraud and tax fraud.

There is a pending lawsuit in the media that will greatly affect your employment situation. Indian software giant Infosys Technologies (“Infosys”) is being sued by Jack Palmer, an employee who refused to help the company obtain B-1 visas for temporary workers. Palmer, who is a principal consultant for the company, has alleged that Infosys systematically commits visa fraud and tax fraud to increase profits, and has threatened and retaliated against him for his whistleblowing.

Palmer has alleged that he attended a meeting in Bangalore, India where Infosys management discussed ways to “creatively” get around the H-1B limitations. Palmer was asked to write a letter stating that an “employee was coming to the United States for a meeting rather than to work at a job.” When Palmer refused, he was threatened, harassed, and retaliated against.

A B-1 visa applies to temporary business visitors who come to the United States to conduct activities of a commercial or professional nature. For example, these could include consulting with a business associates, negotiating a contract, or attending business conferences. However, if you are here on a B-1 visa, you are not legally allowed to work at a full time job. B-1 visa rules also prohibit a U.S. employer from paying for a worker for obtaining a B-1 visa.

Infosys wanted to obtain B-1 visa workers because B-1 visas are much cheaper, faster and easier to obtain than an H-1B visa. Unlike an H-1B visa, the B-1 visa workers do not have wage requirements and are paid by the foreign entity. A B-1 visa holder also does not have their federal and state income taxes withheld. Given these differences, Palmer also alleged in his lawsuit that customers were overbilled for labor costs for the B-1 workers.

According to a filing with the Securities and Exchange Commission last year, Infosys is a major user and reported that 9,300 of its technology professionals in the U.S. held H-1B visas. Additionally, Infosys applied for 3,800 new H-1B visas last year.

Palmer’s lawsuit exposes the visa and tax fraud occurring in many companies that employ H-1B and B-1 visa holders. When an employer uses a B-1 holder to perform an H-1B’s job, he is cheating the government of state and federal income taxes. Also, by using low paid B-1 visa holders to perform the higher paid H-1B jobs, employers are committing visa fraud and overcharging clients. Employees who blow the whistle and report tax and visa fraud may be able to collect significant monetary damages. If you have observed tax or visa fraud being committed against the government at your place employment, call our experienced Whistleblower Atttorneys at Villanueva & Sanchala at (800) 893-9645 to help you decide if you have a whistleblower case.
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Thumbnail image for Thumbnail image for above-the-bar-logo-no12.jpgPeri Software Solutions, Inc., a New Jersey based IT company, and its President, Sarib Perisamya, were issued significant penalties by the United States Department of Labor for alleged violations of the immigration provisions applicable to H-1B employees. In total, Peri Software and Mr. Perismya received penalties and fines close to 1.5 million dollars for unpaid back wages to over 150 employees. Under the H-1B visa immigration guidelines, Companies can hire foreign workers for limited terms to perform certain professional occupations such as IT programmers, engineers, and physicians. As part of the program, Companies must pay H-1B employees the same wage rates paid to U.S. workers who perform the same types of work or the prevailing wage rate in the areas of intended employment, whichever is higher.

According to the investigation, the Company failed to follow the program guidelines to pay the required prevailing wage to its H-1B computers analysts. Further, it was determined that the Company caused employees to sign under duress employment agreements which included unreasonable penalties if employees left employment. Not only did the Company fail to pay its H-1B employees, it sued them for breach of its unreasonable penalty provisions in the employment agreements. Due to the serious nature of these actions, the Company was also assessed a civil penalty of over $400,000.00 and it may barred from hiring H-1B employees in future years.

It is an outrage that Peri Software and other companies take advantage of H-1B employees who are new to the country and unaware of their legal rights. Our employment law attorneys have represented many H1-B employees to protect their rights and continue their employment without being harassed by unscrupulous employers. Call our attorneys now to discuss how we can protect your job, assert your employment rights and defend you in a lawsuit if your employer is trying to force you a pay penalty for leaving your job. Many of penalty provisions in these types of employment agreements may be unenforceable.
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Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for above-the-bar-logo-no12.jpgIt depends on the type of deductions. Employers often try to take advantage of H1-B employees with the hope that the H1-B employees will be too scared or uninformed to complain or bring a legal complaint. Below are some general guidelines.

According to the United States Department of Labor regulations (20 CFR Part 655 Subparts H & I), the following are some payroll deductions that are unlawful:

1. A penalty for the employee’s failure to complete the full employment period. See Section 212(n)(2)(C)(vi)(I). Often employers try to disguise this penalty in an employment agreement as liquidated damages for non-competition provision. The employment transition period can be a stressful process for H1-B employees. Depending on the circumstances, this provision may be unenforceable and the employee may have rights to change employers.

2. Any part of the training and processing fee required by USCIS. See Section 22(n)(2)(C)(vi)(II).

3. Any part of the five-hundred dollar ($500) anti-fraud and detection fee required by the USCIS. Section 214(c)(12)(A)

4. Any deduction for the employer’s business expenses that would reduce the employee’s pay below the required wage rate. Some prohibited deductions include:

  • Travel Expenses (however this does not include the employee’s first trip to the United States);
  • Tools and Equipment; and
  • Attorney’s Fees and expenses directly related to filing the Labor Condition Application.

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