In a case expected to reverberate among tech firms across the U.S., a federal court judge in San Jose has thrown out a whistleblower lawsuit accusing Apple and Indian outsourcer Infosys of engaging in a visa scam.
Former Apple and Infosys employee Carl Krawitt claimed the two firms conspired to fraudulently obtain B-1 visas — instead of the harder-to-get and more costly H-1B — for two Infosys employees brought from India to Sunnyvale to conduct a six-week training course for Apple.
The B-1 visa is for temporary business visits, for purposes including negotiating contracts, consulting with associates and participating in short-term training. But legal experts say it’s not clear what qualifies as participating in short-term training. Krawitt argued that leading a training program for six weeks is far beyond what the B-1 allows.
Apple and Infosys fought to dismiss the case, and this week Judge Lucy Koh in U.S. District Court in San Jose threw it out. “The immigration laws are not clear as to the permissible uses of a B-1 visa,” Koh said in her ruling.
Krawitt, in his lawsuit, included evidence purporting to show fraud, including an excerpt of a letter from Apple to the federal government supporting a B-1 visa application for one of the Indian citizens. The letter said the purpose of the man’s visit to the U.S. was a meeting at Apple, according to a court filing. It also said Apple would not be paying Infosys any money, directly or indirectly, in connection with the visit, according to the filing.
However, a purported copy of a portion of a contract between Apple and Infosys for the training project noted a price to Apple of $50,000. In addition the “meeting” was actually a six-week training program to be conducted by the Indian visitors, the filing said.
A lawyer for iPhone maker Apple referred questions about the case to the Cupertino company, which did not respond to this news organization.
A lawyer for Krawitt noted similarities between the behavior alleged in this case and conduct that got Infosys in trouble with the U.S. government in 2013.
“Infosys previously paid a $34 million settlement after the government learned that Infosys had been falsifying invitation letters — much like the ones in this case — to pay foreign programmers to work in the United States,” lawyer Maxim Price said. “It is now clear that this settlement was just a cost of doing business for Infosys and that they do not intend to stop.” At the time of that settlement, Immigration and Customs Enforcement said Infosys “unlawfully and fraudulently used B-1 visa visitors as though they were H-1B workers in violation of U.S. immigration law.”
The H-1B, intended for jobs requiring specialized skills and awarded through a lottery, has become a flashpoint in America’s immigration debate. Major Silicon Valley tech companies lobby for an increase to the annual 85,000 cap on new visas, arguing they need more visas to secure the world’s top talent. Critics point to reported abuses by outsourcing companies, and contend that large tech firms use the H-1B to acquire cheaper foreign labor via outsourcers.
The judge’s decision Tuesday in the Krawitt case may discourage whistleblowers from bringing similar legal actions, Price said.
“This ruling could set a bad precedent for companies, empowering them to employ foreign companies and pay them abroad to send workers to the United States to do work that should otherwise be done by documented workers or citizens,” Price said. “And they can create a false document trail to cover it up with impunity.”
Migration Policy Institute analyst Sarah Pierce said she expects the ruling will be cited in future legal disputes over use of the B-1.
“The fact that this judge was so willing to dismiss this case because the laws and policies around this visa are so vague certainly works in favor of employers who are seeking to use this visa,” Pierce said. “Attorneys will try to point to this case in the future to defend what their clients are doing with the B-1 visa.”
The B-1 falls into a “super-nebulous category in which companies can bring in individuals on a B-1 visa completely legally and have them work doing what an H-1B worker would normally do,” Pierce said. “There’s such a huge motivation to use and abuse the B-1 program — the skilled visa on which U.S. companies most heavily rely is the H-1B visa, which is extremely limited.”
In recent years, applications for the supply of 85,000 new H-1B visas have numbered between 190,000 and more than 230,000.
Judge Koh had earlier thrown out Krawitt’s case, but ruled he could submit an amended legal complaint containing new evidence. Now that she has dismissed that complaint, Krawitt’s lawyer said he will appeal.
