Hello everybody. This is Cyrus Mehta. Welcome to this week's edition of immigration matters.
The INS recently conducted an enforcement action at Randolph Air Force Base in San Antonio, Texas, in which 40 Indian national computer programmers on H-1B visas were taken from the site in handcuffs and detained. The manner in which some of the individuals were detained defies all norms of due process and fair play.
The individuals were all on valid H-1B visas filed by employers located in Houston, but the INS alleges that amended petitions had not been filed to reflect their temporary assignment as computer programmers at the air force base in San Antonio.
The American Immigration Lawyers Association (AILA) shot off a letter of protest to INS' headquarters in Washington, DC, stating that it was deeply troubled by this action, on several grounds:
The temporary placement of employees at the San Antonio air force base was fully permissible under the current laws. There was no need for the employer to file amended petitions.
The INS' enforcement action violated an earlier court injunction in 1996 that rejected complex DOL requirements for employers to file amended Labor Condition Applications if it moved workers to other job sites. Filing a Labor Condition Application is the first step in the H-1B process.
Even if there was a violation, the alleged acts were by the employer, not the employees, who were working in accordance with the terms of their H-1B visas.
The INS, since the arrests, has been preventing the employees from working, thus forcing their employers to violate a law that prohibits them from "benching" H-1B workers and robbing the employees of their legitimate ability to support themselves and their families.
A significant number of the detained individuals were permanent residents or held valid employment authorization documents. Eye witnesses maintain that INS officials targeted individuals for detention based on Indian ethnicity, rather than on their immigration status.
Inappropriate and possibly slanderous charges were made to the press that the individuals and their employers had engaged in fraud.
Unlike other visas that are governed by only the Immigration and Naturalization Service (INS), the H-1B program is administered by both the Department of Labor (DOL) and INS. Both agencies have developed a complex set of rules, sometimes contradicting each other. As a result, there are no clear guidelines on what an employer's obligations are concerning the short-term placement of employees from the employer's headquarters to other job sites. It is a common practice of consulting companies to employ individuals and then place them at the sites of clients.
Before 1996, an employer was not required to file a new application if it assigned a worker to a new worksite for less than 90 days. This rule was rejected by a federal court leaving employer's clueless about what constitutes a short-term assignment and their obligations to amend applications, if the assignment is not short-term. According to the AILA letter, the employers were not required to file a new Labor Condition Application for San Antonio, and this did not trigger an obligation to amend the H-1B petition.
Even if an employer violates DOL rules that are hard to understand, it is not fair to place H-1B employees into removal proceedings.
The failure of the Indian community to create an outcry will embolden the INS to continue worksite raids thereby terrorizing Indian-American computer programmers, violating their civil rights and subjecting them and their families to even unfair and cruel treatment. Letters should be written to Congress persons, Senators and INS officials. For further advice on how you can act, visit the website set up by the affected programmers - H1BVictims.com.
Also visit our website at cyrusmehta.com for a fuller understanding of the law affecting roving computer professionals on H-1B visas.
I hope you found this segment informative and helpful. If you have any questions, please do not hesitate to call the Law Offices of Cyrus D. Mehta at 212-686-1581. The number once again is 212-686-1581. You could also e-mail us at info@cyrusmehta.com or visit our website at www.cyrusmehta.com.
This is Cyrus Mehta wishing you a wonderful weekend. See you again in two weeks.