New Delhi: When Mr X was asked by his company Wipro Ltd, India’s third largest software services firm with annual revenue from information technology (IT) services of over $5 billion (Rs22,450 crore today) in FY11, to do some urgent on-site work for a client in the US, the last thing that he expected was to be handcuffed and locked up overnight in a small, unheated jail cell in the dead of winter.
His ordeal started with what seemed like a routine business trip. X was hired by Wipro out of campus after graduating from one of India’s better-known engineering colleges. As part of his job, he was sometimes required to travel to the US on short notice. There was just one problem: Although he didn’t realize it at the time, what X was doing was illegal; he was going to work on a B-1/B-2, business visa.
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X, who no longer works for Wipro, spoke to Mint on condition of anonymity. Mint has met him and seen documents, whose authenticity do not seem to be in question, that establish his story which dates back to the first half of the last decade. It is possible that his company, and other Indian IT companies have since refined their processes.
The issue of corporate visa fraud has become a heated topic in the US, following a complaint filed earlier this year in an Alabama court against Infosys Ltd by one of its employees, Jack Palmer, alleging that the company was bringing Indian nationals to the US to work on short-term business visas, rather than the proper, but more difficult-to-obtain work visas such as H-1B or L-1.
The topic made international headlines again, after Infosys recently released a statement that it had received a subpoena from a grand jury in an eastern Texas court, requiring that the company provide “information to the grand jury regarding our sponsorship for, and uses of, B-1 business visas”. Infosys has said it will cooperate.
B-1 visas are issued for short-term business trips for such purposes as attending business seminars. Although some limited types of work are permitted under the B visa rules, employees are restricted from engaging in gainful employment during their stay.
According to X, sending people to work on B-1/B-2 visas was routine while he was with Wipro. “The process usually starts because the client wants you there,” he said. “A lot of clients have made us travel on an urgent basis—sometimes I’ll travel within a week’s notice; when this is the situation and the company needs the business, the company tries to do what it has to do.”
In total, X said he travelled to the US three times on a business visa when worked with the firm. “Everything looks perfect on paper,” he said. “They get a letter from the client manager saying ‘we want this guy for a presentation or a training’—whatever is needed on a B-1/B-2 visa—but you aren’t doing exactly what it said on the paper. You are doing what could be defined very well as work, which would come under the H-1B or L-1B.”
According to X, he was not the only one. Wipro, he alleged, used to send approximately 20 people a month on business visas from his office alone to various client sites within the US to do exactly the same thing.
A Wipro spokesperson maintained that the company has always conformed to the immigration rules, and said: “As far as this specific query is concerned, all Wipro employees who travel on B-1 visas have always adhered to the laws of the land and the guidelines as defined by the visa type according to the US department of state Foreign Affairs Manual, volume 9, section 41.31, to the US consulates’ advice, and to lawyers’ advisory opinions, and we have never had a case otherwise. The rules are the same for all companies/applicants and we have been recognized as the best-in-class due to our track record of adherence to these rules.”
Wipro’s response was based on a query from Mint sharing the information about X mentioned in this article. The paper could not share more details that may have prompted an elaborate response.
X first approached Mint after it reported that five large firms had been suspended from the Business Executive Program due to visa fraud. Mint’s reporters have viewed a copy of X’s passport and B-1 visa, and internal documents, including emails from his manager at Wipro to his email account confirming that he was coming to the US to work on a project, rather than attend functions permitted under a B-1/B-2 visa, and also a letter of invitation from the client saying that he was going for knowledge transfer.
According to minister counsellor for consular affairs at the US embassy in New Delhi James Herman, instances of people being denied entry into the US after they land in the country have gone up recently, in part because firms have become aware that they can get away with it. “The perceived business need is there to send these people... I think like any good company, they (IT companies) are trying to minimize costs, and they’re trying to push right up to the edge of what they are allowed to do. Some go over that edge, some don’t,” he said in a recent interview.
Before leaving for the US, X would attend mandatory “travel briefings”.
“During the travel briefing you are told that you need to stick to what the invitation says,” he said. “We were told to repeat what it says, not to deviate from it. Everyone is aware that it isn’t the right thing to do, but we have to do it anyway.” Wipro’s spokesperson clarified that such sessions are meant to “educate our employees to comply with those same laws”.
The first time he left, X didn’t realize he was doing something illegal. “At least the first time I went, the understanding was that if you went on a short-term assignment (anything up to three months) you would automatically apply for a B-1 irrespective of the nature of the visit,” he said. The second time X went to the US on a business visa, he was questioned at the airport, but was able to convince the immigration official interviewing him that he was there for a meeting and nothing more. “That’s when I got to know what different types of visas meant,” he said. “However, the awareness was always ‘soft’, the full ramifications of getting caught were never known.”
Herman said that the department has seen an increasing number of cases of misuse with the long-term visas, which are 10-year multiple entry visas. People may go and do the right thing the first time, but an urgent business need may force them to cross the line in terms of what the visa category allows. “We don’t catch those people because they don’t come in to get another visa. They are usually caught by DHS (department of homeland security) at the point of entry.”
That’s what happened to X.
On his third visit, Wipro had sent X to temporarily replace another employee who had been working under a visa category that legally permits work in the US. X’s plane landed on a Sunday morning. Because it was a weekend, he was dressed casually in a pair of jeans and T-shirt.
His problems started as soon as he went through immigration. The official sized up his casual appearance, and questioned whether he was really there for business. “There was (a) doubt right from the very beginning,” he said. The immigration agent said “you are on the wrong visa no matter what the papers say”, according to X. “You are here to work.” X was taken to a small interrogation room, where the officer proceeded to drill him for the next 7 hours.
“They do intimidate and threaten you,” he said. X recalled that officials questioned him regarding his visa status, his job, and his reasons for being in the US. X was given two choices: he would be deported, or he could sign a form attesting that he was voluntarily withdrawing his visa application.
“The immigration official told me ‘if we deport you, you aren’t coming back into the country’,” X said. He could jeopardize his ongoing plans to apply to US graduate schools.
Violating visa norms, as X learnt, was risky. For firms, it can result in hefty fines and suspension from programmes that allow them to expedite workers’ applications. For individuals, it can be worse—people found guilty of visa fraud can be permanently barred from entering the US.
After 7 hours of confinement in a small, cold, windowless room, where he was repeatedly drilled and threatened by the immigration officials, X gave in. “I said ‘screw the company. The company has lawyers. I don’t. I’ll sign whatever you need’.”
As the number of people from India being turned back at US airports has increased, so have rejection rates of B-1/B-2 visas among Indian applicants, due to the rise in the number of fraudulent applications detected by consular officials. In one consulate, rejection rates have increased 25% in the past year alone, according to the US state department.
Ordinarily, such people are flown back the same day they arrive. But by the time X had signed the withdrawal form, all return flights had departed. The official handcuffed him, marched him through the airport and handed him off to another agent, who drove him to a nearby detention facility, where he was locked up in a small, poorly heated cell for the night.
“You couldn’t sleep there because there was no heating, no blanket, and it was in the middle of winter—so I was pretty much walking through the night,” he said. He was given some food and water, and finally caught a return flight the following afternoon.
After he returned, X says he followed up with the Wipro travel desk to find out the possible ramifications of what had happened to him. They were unresponsive. “I am not sure that I got any sense that they realized what they were doing was wrong,” he said.
His biggest shock was still to come. The next time he wanted a different visa to go to the US, he was confronted with the possibility of being barred from entering that country. “This turnaround (at the airport) became the focus of my entire interview,” he said. “They kept asking me ‘how can we trust that you won’t come to work?’”
Although he eventually managed to obtain the visa, the experience has had lasting consequences on his life. “Each time I’ve gone again—I have travelled for weddings or other engagements—I’m asked the same questions over and over again,” he said. “It’s not a quick process. Almost the entire day goes by at the immigration counter.”
“They (recruiting companies) don’t tell you how it could affect you in the future,” said X. “Unless this happens to you personally or a friend or someone you know, I don’t think anyone is fully aware of the repercussions.”
Khushboo Narayan in Mumbai contributed to this story.
This is the second and concluding part of Mint’s investigation on some IT companies based in India flouting existing visa norms. In the first part, the paper reported on how the misuse of the current, conservative US visa regime may be widespread, of how at least some Indian companies have put profits over employee benefits, and how employees with B1 visas are sought after in the job market. The package also featured a timeline on US visa policies and the growth of the Indian IT industry, and a column by Som Mittal, the head of India’s software lobby group Nasscom, putting forth the Indian IT company perspective.