Senator Charles E.
Grassley's Letter Regarding Potential Fraud in the Use of B-1 Business Visas and
the 'B-1 in lieu of H-1B' Note in the Foreign Affairs Manual
Dear Secretary Clinton and
Secretary Napolitano:
I'm very concerned about
fraudulent actions that at least one foreign-based company has
allegedly been taking in order
to get around the requirements and U.S. worker protections of the H-1B visa
program, and more generally, about provisions in current guidance to visa
adjudicators that actually
authorize such evasion of Congressional intent.
On February 23, 2010, a U.S.
employee of lnfosys Technologies Limited, Inc. ("Infosys") filed a complaint in
the Circuit Court of Lowndes County, Alabama, alleging that his employer was
"sending lower level and unskilled foreigners to the United States to work in
full-time positions at Infosys' customer sites in direct violation of
immigration laws." The plaintiff described ways that Infosys, one of the top ten
H·1 B petitioning companies, had worked to "creatively" get around the H·I B
visa program in order to bring in low-skilled and low-wage workers, resulting in
visa fraud against the U.S. Government.
Infosys, by its own admission,
is an "H-l B dependent employer." Under the Immigration and Nationality Act, H-1
B dependent employers must take good faith steps to recruit U.S. workers and to
offer them compensation that is at least as great as that required to be offered
to H-1B nonimmigrants.
The formal complaint against
Infosys details how Infosys management in India decided to use the B-1 business
visitor visa program to get around H-1 B program restrictions. The plaintiff
alleges that Infosys was importing foreign workers as B-1 business visitors
under the guise of attending meetings rather than working for a wage as an
employee of a U.S. company, which is forbidden under the statute and regulations
governing the B-1 visa program. Under section 101(a)(15)(B) of the Immigration
and Nationality Act, a B-1 visa holder may not come to the U.S. "for the purpose
of... performing skilled or unskilled labor." Under State Department
regulations, a B-1 visa holder may not engage in “local employment or labor for
hire." If the allegations against Infosys are substantiated, American workers
will have been hurt by this company's fraudulent actions, and the integrity of
both the B-1 and H-1B visa programs will have been compromised.
More troubling than the
illegal ways a company can get around the H-1 B program's restrictions using the
B-1 visa program are the legal ways companies can use the B-1 visa program to
defy the intent of Congress. For example, the State Department's Foreign Affairs
Manual (FAM) currently authorizes the granting of B-1 visas to foreign workers
who should otherwise be seeking H-1 B visas in cases where the worker is
employed by a foreign company and is coming to the U.S. to work at a U.S. client
of that foreign company. Specifically, the FAM states that to qualify for such
B-1 in lieu of H-1B visas, "the employee must customarily be employed by the
foreign firm, the employing entity must pay the employee's salary, and the
source of the employee's salary must be abroad." Under this low threshold, a
company could import workers via the B-1 business visitor visa and evade the
H-1B visa cap and prevailing wage requirements that would otherwise apply to
such workers so long as the workers could show that their paychecks were still
coming from the foreign company. I believe a thorough review of the "B-1 in lieu
of H-l B” provision in the Foreign Affairs Manual is warranted by both of your
Departments, especially at a time when American workers are vying against
foreign workers for employment in this country.
In light of the allegations
against Infosys, and the potential for other employers to abuse the B-1 visa to
get around the H-1B visa program, I would appreciate your cooperation to get to
the bottom of the situation. I would also like information about how the B-1
visa is being used by employers and processed by consular officers, including
the following:
•
Statistics with regard to the numerical distribution of B-1 visas, including
which employers are using them, how many B-1 visas are petitioned for and
approved each year, and the lengths of time a visa holder remains in the United
States on a B-1 visa.
• The
number of "B-1 in lieu of H-1B"' visas issued each year for the past five years,
including the posts where such visas were issued, the U.S. companies hosting
such workers, and the foreign companies paying the worker's salary.
• How
does the Department of State verify an employer's claim that a B-1 visa holder
will attend a meeting, convention, or other business appointment in the United
States?
• What
actions, if any, are being taken against employers who abuse the B-1 visa
program? Will the Departments consider barring such employers from any visa
program if found guilty of misusing the visa system? Will the Departments cease
to approve visas for Infosys until the lawsuit in Alabama is settled? If not,
what additional oversight and/or actions will be taken until the Infosys lawsuit
is finalized?
• What is
the legal basis for the State Department's policy known as "B-1 in lieu of
H-1B"? The Immigration and Naturalization Service, in 1993, proposed a
regulation to eliminate the "B-1 in lieu of H" category citing inconsistency
with Congressional intent. Will the department consider changes to the Foreign
Affairs Manual so that this means of entry is not abused? Will the Department
consider eliminating this provision altogether? How docs the Department of
Homeland Security feel about this State Department policy today?
My hope is that your
Departments will cooperate to make sure that the B-1 visa program is not being
abused by employers who wish to get around the annual caps and prevailing wage
requirements imposed by the
H-l B visa program. I look forward to your review of the issues I have raised,
and would appreciate a response to my questions no later than April 28, 2011.
Sincerely,
Charles E. Grassley
United States Senator | 
