A Cautionary Tale: Use of B-1 Business Visitor Visas by Employees

11/14/2013

The B-1 temporary visa category is intended to allow foreign nationals to visit the U.S. for temporary business purposes that do not rise to the level of gainful employment. Given the relative ease of obtaining a B-1 visa compared to other visa categories, some U.S. employers have encouraged or assisted foreign nationals in using the B-1 visa category for activities beyond its intended purpose.

As a compelling warning to employers who might be tempted to engage in such behavior, Infosys Technologies Limited, Inc. has agreed to pay $34 million to end an investigation into the improper use of B-1 visitor visas by its employees. As such, the India-based technology services outsourcing company will pay the largest immigration related fine ever levied. The fine is a result of an industry wide investigation into the practice of Indian technology firms improperly employing workers in the U.S. on temporary visitor visas.

The civil visa fraud investigation, conducted by the Department of Homeland Security, the State Department, and the Justice Department, found that Infosys was able to bring a number of its employees to the U.S. by using B-1 visas as opposed to the more expensive, less-available H-1B work visas. As part of this practice, Infosys was accused of drafting false invitation letters designed to deceive U.S. consular officials into issuing B-1 visas and training its employees on how to respond to consular inquiries without triggering concerns on the use of the B-1 visa category. For example, these letters described the employees' visits to the U.S. as “meetings and business discussions” when these employees were in fact engaging in computer coding and programming. By admitting civil violations of U.S. employment law, Infosys avoided both withdrawal of its federal contracts and limitations on its access to future work visas for its employees, as well as criminal sanctions and penalties.

The Infosys investigation by the U.S. Attorney’s Office for the Eastern District of Texas stemmed from a 2011 lawsuit filed by Jack Palmer, a former Infosys employee who sued the company for harassment and breach of contract. Palmer claimed that his managers had retaliated against him after he raised concerns that the company was violating U.S. immigration laws. As part of the lawsuit, Palmer alleged that he had attended meetings at Infosys where he was asked to prepare false letters in support of B-1 applications, claiming that employees were coming to the U.S. for business meetings as opposed to working at a client job site.

Infosys’ use of the B-1 visa category should remind employers to practice caution when deciding the appropriate visa for non-U.S. employees. B-1 business visa holders are generally not work-authorized. These visas are issued directly by a U.S. consulate abroad for very limited purposes – such as business meetings, attending conferences, contract or finance negotiations, to visit production facilities and short-term orientation – for up to a 6-month stay in the U.S. In contrast, H-1B visa holders are work-authorized, entitling the holder to enter the U.S. labor market and remain in the U.S. for up to six years. The U.S. issues a maximum of 85,000 H-1B visas per year.

What Lessons Should U.S. Employers Take From the Infosys Settlement?

There are a number of employer action points raised by the Infosys settlement:

  • Employers should diligently implement internal controls and processes to guide against the misuse of B-1 visas.
  • If an employee is applying for a B-1 visa at a consulate, the employee should be prepared to document the legitimate purpose(s) for the visa as these are likely to be subject to higher scrutiny in the wake of the settlement.
  • If an employee needs to come to the U.S. to enter the labor market and an H-1B visa is unavailable, an employer should consider alternate work visas, such as the H-1B1 (Chilean/Singaporean nationals), TN (Mexican or Canadian nationals), O-1 (extraordinary ability), L-1 (intracompany transferees), E-3 (Australian nationals), or E-2 (investors or essential employees).
  • A number of Infosys violations were uncovered through Form I-9 failures – making it a prime example of government enforcement and compliance through the I-9 audit process. Therefore, employers should consider reviewing and updating their I-9 compliance processes.

For more information on this matter or related immigration issues, please contact your Haynes and Boone, LLP Immigration attorney.

In Dallas:
Brent T. Huddleston
214.651.5307
brent.huddleston@haynesboone.com

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