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H1B labour contractor cleared of sharp practice charge

Suman Guha Mozumder
India Abroad Correspondent in New York

In a ruling that may cheer up H1B employment contractors, a federal judge has found an Indian American not guilty of charges that included petitioning for computer programmers from India and bringing them to the United States at a time when there were no immediate job openings for them.

Gopala Krishna, the Los Angeles-based contractor who was investigated by the Immigration and Naturalization Service and the labour department and faced a criminal case filed by the US attorney's office, was found not guilty of all charges by the US district court, central district of California.

The accusation against Krishna was that he induced Indian workers to enter the US and then harboured them in nearby apartments.

Krishna's attorney, Ivan L Klein, said the evidence against his client included his confession that he did not have jobs for the H1B workers at the time he submitted the petitions.

He also admitted that he was unable to find jobs with end-users and that he could not pay the promised wages once they arrived in Los Angeles.

"The changing economy and business needs make [it] almost impossible to accurately foresee the needs of the computer industry in six months in the future," Judge Florence-Marie Cooper said in her verdict.

She noted that Krishna was operating a legitimate employment agency and that he was successfully operating this business placing employees with end-users.

"The defendant is attempting to operate within a governmental system which can take as long as six months between the application and the arrival," according to court documents, quoting the judge. "Obviously, the form [H1B petition] deals with future intent," she noted.

Krishna was indicted in Los Angeles on June 26, 2000. "The case was pending for a long time and it went on trial only on June 5 this year," Klein told India Abroad.

The judge's verdict followed the introduction of expert testimony by Angelo A Paparelli, an immigration lawyer from Irvine, California.

Paparelli told the court that the policies of the INS as found in the preamble to an INS 1998 H1B proposed rule recognized that end-users may give employment contractors just one day's notice of the need for an H1B worker.

He also confirmed that a 1995 INS policy memo interpreting the INS "itinerary" requirement found it acceptable in some cases for an employment contractor to merely offer a general statement about the alien's "proposed" or "possible" employment.

Paparelli, who produced copies of INS documents for the judge in support of his testimony in favour of the defendant, provided an INS memorandum that says the 'itinerary' does not have to be so specific as to list each and every day of the alien's employment in the US.

"Service officers are encouraged to use discretion in determining whether the petitioner has met the burden of establishing that it has an actual employment opportunity for the alien," he said.

Significantly, in the Krishna case, which Klein described as one of the rarest, the INS never revoked the H1B petitions and even approved change of employer H1B petitions for the same aliens.

"This undercut the government's allegations that the aliens entered illegally and were 'harboured in violation of law'," Klein said.

In her not-guilty ruling, Judge Cooper urged the INS and other government agencies that administer the H1B visa programme to provide clear regulations about what conduct is permitted or prohibited in the sponsorship of H1B workers.

She noted that even direct employers could never be sure whether a proposed job would remain open during the six-month period it could take to get a petition approved, the visa issued and the alien to arrive at the site.

"I am not convinced beyond a reasonable doubt that at the time these statements were made the defendant did not believe them to be true and did not intend to provide the work promised," the judge said.

Paparelli said the case offered some important lessons. "The government should not bring criminal charges against H1B employers unless the law and regulations spell out more clearly the conduct that is prohibited," he told India Abroad. "Employment contractors and direct H1B employers cannot be faulted for attempting to comply with a complex system where legal obligations are not clearly stated."

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