A whistleblower suing Apple and outsourcing giant Infosys has added new evidence to support his legal claim that the two companies conspired to evade visa laws. A federal judge last month ruled in Apple’s favor and dismissed the case, but left the door open for the whistleblower to produce more information.
This week, the judge denied Apple’s motion to stop production of documents in the case, setting the lawsuit on course to continue.
Carl Krawitt, a former contractor for Infosys and Apple, claimed in his lawsuit that the firms conspired to get around the problem of obtaining hard-to-get and relatively costly H-1B visas for two Indian workers — allegations Apple already has denied. Krawitt claimed the companies fraudulently acquired B-1 visas, which are intended for temporary business visitors, by telling the U.S. government in “invitation letters” that the Indian nationals were coming for a business meeting when they were actually arriving to train about 75 Apple workers in a six-week program.
In his amended complaint filed this month, Krawitt provided purported copies of correspondence to support his case.
“Infosys avoids paying the United States the substantially higher application fee for H-1B visas, and avoids paying Social Security, Medicare and other fees and taxes to the United States,” his amended complaint said.
“Apple willingly participated in lnfosys’s scheme by contracting with Infosys for workers on B-1 visas instead of hiring United States citizens and/or green card holders as full-time employees at market rate compensation. Apple did so as a cost-savings measure.”
Apple also falsely told federal authorities that it would not be paying Infosys in connection with the two men’s activities in the U.S., the amended lawsuit claimed.
U.S. District Court Judge Lucy Koh dismissed the case last month, but left open the option for Krawitt to submit more evidence in an amended complaint. Krawitt filed the new complaint Nov. 15.
Apple declined to comment on the amended complaint. But in its earlier, successful motion to dismiss Krawitt’s case, the Cupertino firm said his claims were based on a misunderstanding of immigration laws, which permit non-immigrants to come to the U.S. on B-1 visas for business that is “incidental to international commerce — here, pursuant to a business relationship between U.S.-based Apple and India-based Infosys.”
If Apple or Infosys had been aware B-1 visas weren’t appropriate for the two men, the companies “easily could have made alternative arrangements — e.g., by having the two Infosys employees conduct the training by video conference from India, or … by replacing them with U.S. citizens, green card holders, or Infosys employees on H-1B visas,” Apple argued in court documents. The training sessions the two Indian nationals participated in “are precisely the type of ‘business’ activities permitted under the B-1 visa program,” Apple said.
Infosys did not respond to a request for comment.
Krawitt’s new complaint includes a purported copy of an “invitation letter” from Apple to the U.S. government involving one of the Indian citizens. That letter was virtually identical to one submitted for the other Indian national, according to the lawsuit. Apple told the U.S. government that the person referred to in the letter would not be “performing any productive work” while in the U.S., and that Apple would not pay Infosys any money “directly or indirectly related” to the person’s presence in the country.
The complaint also includes a purported copy of an executive summary of the contract between Apple and Infosys, which shows Apple was to pay Infosys $50,000 in connection with the men’s visit to an Apple office in Sunnyvale.
In her ruling dismissing the case last month, Koh wrote that the B-1 visa regulations were vague, and cited a ruling from a similar case in a different industry. “It is not clear from the text of the regulation that providing training is not a legitimate commercial or professional activity under a B-1 visa,” Koh said. “Providing training and supervision in the construction industry is allowable under a B-1 visa. There is no indication in the regulations that providing training in other industries is disallowed.
“Apple and Infosys cannot be charged with knowledge or willful blindness to the correct uses of the B-1 visa because there is simply no exhaustive list or case law of all permissible activities under a B-1 visa.”
Koh also said that she was ruling in Apple’s favor because any profit from the relationship between it and Infosys accrued in India, not the U.S.
Krawitt’s amended complaint alleges that Apple and Infosys knew the services did not fit the requirements for a B-1 visa, “as demonstrated by the letters’ false statements that neither these individuals nor their employers would be paid, to try to cover up this scheme.”
The amended complaint noted that Infosys paid a $34 million settlement to the U.S. government and $1 million to the State of New York, over allegations that it abused the B-1 visa program.
Immigration and Customs Enforcement said at the time of the $34 million settlement in 2013 that Infosys was accused of using false “invitation letters” and that it “knowingly and unlawfully used B-1 visa holders to perform skilled labor 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 letters “often stated that the purpose of travel was for ‘meetings’ or ‘discussions’ when the true purpose was to engage in activities not authorized under a B-1 visa.”
New York’s Attorney General said Infosys needed H-1B visas, but to avoid the difficulty and expense of obtaining them, it illegally obtained B-1 visas that were “much easier” to get.
“B-1 visa holders are not permitted to perform work of the kind Infosys workers were sent to New York to do, and they are not subject to the H1-B prevailing wage requirements,” the state’s Attorney General said in a 2017 press release.
Apple had sought an order to halt “discovery” in the case — the production of documents for evidence — but on Wednesday, Koh denied that motion, ruling that the case would continue.