[co-author: Nicole Brooks]

Infosys, an Indian technology outsourcing company, has agreed to pay a fine of $34 million after an extensive investigation by federal prosecutors in Texas. The investigation alleged that the tech giant misused the B-1 business visitor visa, which is normally issued to foreign workers travelling to the United States to attend meetings or training. Opting out of the long-term and more appropriate—but albeit expensive—H-1B visa, Infosys allegedly utilized B-1 visas to bring thousands of foreign workers to the United States to engage in productive work. Federal prosecutors accused Infosys of falsifying business invitation letters and instructing foreign workers on how to mislead immigration authorities during visa interviews. Infosys was first brought to the attention of authorities as the result of a whistleblower case that was filed by a consultant in 2011. The fine is the largest ever in this type of case and proves that the misuse of visas can land a company in hot water.

Visa fraud has different criteria, but the commonly accepted elements are:

(1)   the sale, provision, or transfer of otherwise legitimate visas;

(2)   the misrepresentation of reasons for traveling; and

(3)   the forgery or alteration of a visa.

In the United States, visa fraud is a federal offense and can be prosecuted under several statutes, including 18 U.S.C. §1546 Fraud and Misuse of Visas, Permits, and Other Documents; 18 U.S.C. §1001 False Statements or Entries Generally; and 18 U.S.C. §1028 Fraud in Connection with Identification Documents.

With respect to the Infosys investigation, “misrepresentation of reasons for traveling” is the transgression that landed the company in this debacle. According to the U.S. Department of State, the B-1 business visitor visa can be used for a number of reasons including:

• to consult with business associates;
• to attend a scientific, educational, professional, or business convention or conference;
• to attend short-term training (not to be paid by any source in the United States, with the exception of expenses incidental to the stay); and
• to negotiate a contract.

On the other hand, activities that are forbidden and considered misuses of the visa include:

• study for credit;
•  employment;
•  work as foreign press, in radio, in film, as a journalist, or in other information media; and
• permanent residence in the United States.

Although Infosys firmly denies any accusations of visa abuse, federal investigators claim that the company’s systemic visa fraud gave it an unfair competitive edge in the U.S. marketplace and undercut American workers. Among the accusations, federal investigators alleged that Infosys submitted misleading documents to immigration authorities to obtain the faster and cheaper B-1 visa. In addition, the company had extensive errors in its hiring records. Such errors included omissions that could have allowed thousands of foreign employees to continue working in the country after their visas had expired.

Despite these allegations, the company insisted in a statement to The New York Times that “Infosys’ policy demands adherence to all laws, rules and regulations everywhere we operate and we continue to take our compliance obligations seriously.” The company contends that the claims are false and its use of the B-1 visas was for legitimate business purposes and not intended to circumvent the H-1B visa program, including mandatory government fees and the numerical limitation.

In light of the Infosys investigation and subsequent multimillion dollar fine, U.S. employers must be mindful of the fact that any productive work performed by foreign workers in the United States requires a visa that grants work authorization. Companies should consult with counsel regarding the appropriate visa classification and ensure adherence to the respective requirements of the B-1 and H-1B visa categories. It is important to bear in mind that the B-1 business visitor visa has strict limitations and cannot be used for gainful employment.