Bad time to be accused of H-1B visa fraud

Would your firm want this kind of publicity?

Be sure and check out the piece in ComputerWorld (May 27, 2009) re: H-1B fraud prosecution.

The article by Patrick Thibodeau describes how the U.S. Federal Government is connecting the alleged abuse of the H-1B visa program to declining U.S. employment of IT technical workers. In rough terms, the government is pointing out that 4.1 million tech workers have seen their ranks diminish by 200,000 or so jobs while the number of H-1B visa holders exceed that 200,000 figure.

When you’re being held for trial, you don’t want to face an unsympathetic jury. The Feds know this and the defendants in this case will doubtlessly be placed in the most unfavorable light possible. When the government can show job losses of approximately the same size (or greater) than the number of H-1B visas granted, jurors will be wondering why the law should protect those who potentially took jobs away from domestic workers and gave them to non-citizens.

To prove fraud, the government will need to prove that there was an intent to deceive. In this case, they’ll need to prove that the plaintiff had no real interest in using U.S. workers for positions it filled with non-U.S. personnel. Furthermore, you can expect the government to focus on other acts that supported the alleged fraud such as:

- bringing non-U.S. citizens over in anticipation of positions opening up and not for actual open spots - paying below market wages which were unfair to the non-U.S. persons doing the work and which placed further pay reduction pressures on U.S. workers

This case should be about the plaintiff and their actions only. It shouldn’t be a case that is covering broader social, regulatory and legislative issues although it probably will become one. Being the trailblazer defendant is not where you want to be. Few firms want to be the case cited repeated in law schools for the next couple of centuries. I’m sure the defendants in this case wish they could pay a fine and disappear into the woodwork. I don’t think the feds are going to go that route. Why? This is the stuff that makes reputations out of great litigators. It makes headlines and, by extension, can make the political career out of someone in the prosecutor’s office.

The timing of this trial also says a lot, too. In a very down economy with layoffs occurring in many sectors of the country, what juror around hasn't been impacted by the economy? Even if they weren't personally impacted, they've certainly had friends, family members, etc. who've lost jobs or seen their employer fail altogether. How would a defendant in this case find a juror (let alone 12 of them) who hasn't been influenced by current economic events? The government knows this is an opportune time to press this case and smart defense lawyers would try hard to postpone this case for at least 18-24 months.

Granted, I'm not an attorney, but I can smell a case that will soon be 'ripped from the headlines' and made into a new episode of "Law & Order".

Let’s watch this one….