M E M O R A N D U M
TO: Reporters and Editors
RE: B-1 Visa in place of H-1B Visas
DA: May 25, 2011
Senator Chuck Grassley released the following comment after receiving a response to his April 14, 2011 inquiry to the Departments of State and Homeland Security about the use of the B-1 visa program by employers to recruit foreign workers who are then not subject to the cap and the prevailing wage requirements of the H-1B program. The response by the State Department said the agency is working with the Department of Homeland Security to eliminate or amend the B-1 in Lieu of H-1B policy in the Foreign Affairs Manual. Grassley is still waiting for a response from the Department of Homeland Security.
“It appears the B-1 visa program has become a subterfuge for companies wanting to avoid the cap and wage requirements of the H-1B visa, so it’s good to see the State Department acknowledge the need for greater fraud prevention in the visa approval process as well as changes to policies that incentivize employers to go around the H-1B program in the Foreign Affairs. The State Department’s efforts are a step in the right direction, but more work will be needed in this area to ensure the integrity of our visa programs. This includes the ability for the department to maintain accurate statistics that will help us understand how we can better close loopholes to ensure that American workers are given first priority for jobs.”
The State Department’s response to Grassley can be found by clicking here. Below is Grassley’s April 14th letter to the departments of State and Homeland Security.
For Immediate Release
Thursday, April 14, 2011
Grassley Concerned That Companies are Using B-1 Visa Program
to Circumvent H-1B Requirements
WASHINGTON – Senator Chuck Grassley is asking for a thorough investigation by the Departments of State and Homeland Security of the B-1 visa program and the use of thisvisa program by employersto recruit foreign workers who are then not subject to the cap and the prevailing wage requirements of the H-1B program.
“When unemployment remains at a staggering 8.8 percent, we should be focusing our oversight efforts on employers who are taking advantage of the system and importing foreign workers to the detriment of Americans,” Grassley said.
In his letter to Secretary of State Hillary Clinton and Secretary of Homeland Security Janet Napolitano, Grassley questioned the “B-1 in lieu of H-1B” policy currently in place. Hewrote, “Under this low threshold (of the B-1 visa), 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.”
Grassley also referenced a formal complaint against Infosys that details how Infosys management in India decided to use the B-1 business visitor visa program to get around H-1B 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.
Grassley argues that American workers should be given first consideration by companies looking to import foreign workers. Grassley has led the effort to close loopholes and enact reform in the H-1B visa program. He has introduced legislation in previous Congresses to reform the H-1B and L visa programsand is planning on introducing a bill again in the 112th Congress.
Here is a copy of the text of Grassley’s letter. A signed copy can be found here.
April 14, 2011
The Honorable Hillary Rodham Clinton
U.S. Department of State
2201 C Street NW
Washington, D.C. 20520
The Honorable Janet Napolitano
U.S. Department of Homeland Security
245 Murray Lane, Mailstop 0150
Washington, D.C. 20528-0150
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 Infosys 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-1B petitioning companies, had worked to “creatively” get around the H-1B 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-1B dependent employer.” Under the Immigration and Nationality Act, H-1B 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-1B 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-1B 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-1B 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-1B” 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:
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-1B 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.
Charles E. Grassley
United States Senator