Could APEX Be Investigated For H-1B Fraud?

Date: Monday, January 04, 2010 12:12 AM

<<<<< JOB DESTRUCTION NEWSLETTER No. 2066 -- 1/03/2009 >>>>>

Could APEX Be Investigated For H-1B Fraud?

A recent eWeek article says it all: "H-1B Visa Enforcement to Increase in
2010".

USCIS officials intend to up the ante of verifying and investigating
the validity of H-1B visa usage by companies. Immigration officials
will ramp up law enforcement to help thwart fraud and quell
political pressure that wants to severely limit H-1B visa usage.

Computerworld published an article in November that explains who is in charge
of the investigations:

In a letter to U.S. Sen. Charles Grassley (R-Iowa), Alejandro
Mayorkas, director of the Citizenship and Immigration Services,
said the agency began a site visit and verification program in
July to check on the validity of H-1B applications. Mayorkas
letter was released on Tuesday by Grassley.

So, could APEX be investigated for H-1B fraud? The answer is yes, if someone
simply asks the Dept. of Labor to start an investigation. Both U.S.
citizens and H-1B holders are eligible to file complaints to the Department of
Labor.

Please, before reading further be sure to read and understand my Vdare article
titled "H-1B Bodyshop vs. U.S. First Amendment: The Case Of "Tunnel Rat"

http://www.vdare.com/sanchez/091227_tunnel_rat.htm

This the Dept. of Labor Wage and Hour Division has a web page with information
about how to file a complaint [all links at the end of commentary unless
otherwise noted].

Instructions for Form WH-4: H-1B Nonimmigrant Information
The information provided on this form will assist the Department
of Labor in determining whether the named employer of H-1B
nonimmigrants has committed a violation of provisions of the
H-1B program.

To download the complaint form WH-4 just click the link provided on the
complaint page. You will get a PDF formatted complaint form. There are various
things that need to be filled out but one of the most interesting ones is Item
#4 titled: "Description of Alleged Violation(s)".

Most of the boxes that can be selected are for complaints that only an H-1B
worker at APEX would have the inside information required to make a valid
complaint. However, there are a few choices that seemed to be put there for
Americans -- but the questions ask for information that only somebody at
APEX would know. Like for instance, how would somebody outside the company
know if LCAs are filed within a 90 day window when the DOL only makes LCAs
available once every year? Lots of vague and difficult to define terms are
used that provide ample squiggle room for companies to put the burden of proof
on the plaintiff. Words and phrases such as "willful violator", "seeks to
replace", "failed to inquire", and "intends" are used in such a way that the
plaintiff would have to be a mind reader to prove.

The following are examples of the choices that are very H-1B centric:

(m) H-1B dependent/willful violator employer laid off U.S. worker(s)
and has replaced or seeks to replace U.S. worker(s) with H-1B
worker(s) within 90 days before or after filing H-1B visa petitions.

(n) H-1B dependent/willful violator employer placed H-1B workers(s)
at another employer s worksite where U.S. workers have been laid
off, and /or has failed to inquire of the second employer whether
it has or intends to lay-off U.S. worker(s) and replace them with
H-1B worker(s).

(o) H-1B dependent/willful violator employer failed to recruit U.S.
worker(s) for jobs for which H-1B worker(s) are sought.

Fortunately there is an "Other" option which allows the plaintiff to write
their own complaint. That one might be most applicable if you feel that APEX
Technology Group violated other types of H-1B regulations besides the ones
listed. The "Other" option allows for flexibility.

One of the most obvious things that the DOL should consider worthy of
investigation is that APEX required their H-1B employees to sign an employment
agreement letter, which was actually a thinly disguised indentured labor
contract. Unfortunately at this time we have no way of seeing the contract
because APEX scrubbed it from the internet and then went on a rampage against
three web bloggers that did nothing more than post a link to the document on
another blog that is run by desis.

We do know that contract violates regulations described in DOL regulations
about nonimmigrant "Employee Rights"

Also, the employer may not require the worker to pay a penalty for
leaving employment prior to any agreed date. However, this
restriction does not preclude the employer from seeking
"liquidated damages" pursuant to relevant state law. Liquidated
damages are generally estimates stated in a contract of the
anticipated damages to the employer caused by the worker s breach
of contract.

For those of you that like to study issues in detail, read more about the
differences between liquidated damages and indentured contracts in 20 CFR Part
655 Subpart H 655.731, paragraphs 10(B)(C). It all sounds esoteric but is
really straightforward if you take the time to read it. It s probably not
necessary to understand it all if you just want to dive in and file a
complaint, but be sure to use the CFR number if your complaint centers on the
contract because that s what bureaucrats will understand.

The DOL gives a link to mail it to your local office, but in this case it
might be more appropriate to mail it to:

Pat Reilly
District Director
Southern New Jersey District Office
US Dept. of Labor ESA Wage & Hour Division
3131 Princeton Pike, Bldg. 5, Rm. 216
Lawrenceville, NJ 08648
or you can call them @Phone: (609) 538-8310, 1-866-4-USWAGE,
(1-866-487-9243)

The address for APEX Technology Group is:

Apex Technology Group, Inc.
2703 Merrywood Drive
Edison, NJ - 08817.
Phone :732 -819 -7550
Fax :732-819-7900

Unfortunately complaints filed ASAP probably won t be able to help John Doe
#1, #2, and #3 from persecution by judge Hurley. It s very important to keep
in mind that complaints about things like freedom of speech or violations of
due process by APEX will probably be ignored because the DOL doesn t care
about such things. What the complaints could accomplish is to give the DOL
reason to investigate other aspects of this company, and that could send a
message to the company that they are being watched.

I will have more updates soon because the first article didn t adequately
discuss the three anonymous bloggers, and what potential personal risk they
could endure if Judge Hurley exposes their identities.

Stay tuned for more!

RESEARCH LINKS:

web version of this newsletter:
http://blog.vdare.com/archives/2010/01/04/apex-investigated-fraud/

http://www.dol.gov/whd/forms/fts_wh4.htm
How to file a complaint, Wage and Hour Division (WHD), Instructions for Form
WH-4: H-1B Nonimmigrant Information

http://www.flcdatacenter.com/CaseH1B.aspx
DOL LCA database

http://www.dol.gov/compliance/guide/h1b.htm
Work Authorization for non-U.S. Citizens: Workers in Professional and
Specialty Occupations (H-1B, H-1B1, and E-3 Visas)

http://www.dol.gov/dol/allcfr/Title_20/Part_655/20CFR655.731.htm
20 CFR 655.731 - What is the first LCA requirement, regarding wages?

http://www.dol.gov/whd/america2.htm#NewJersey
Southern New Jersey District Office

http://www.apextgi.com/contactus.php
APEX Technology Group contact us page

STORIES COPIED BELOW:

http://www.eweek.com/c/a/IT-Management/H1B-Visa-Enforcement-to-Increase-in-2010-772292/?kc=EWKNLNAV12292009STR2
H-1B Visa Enforcement to Increase in 2010

http://www.computerworld.com/s/article/9141047/Feds_plan_25_000_on_site_H_1B_inspections
Feds plan 25,000 on-site H-1B inspections

http://www.vdare.com/sanchez/091227_tunnel_rat.htm
H-1B Bodyshop vs. U.S. First Amendment: The Case Of "Tunnel Rat"

+++++++++++++++++++++++++++++++++++++++++++++++++++

http://www.eweek.com/c/a/IT-Management/H1B-Visa-Enforcement-to-Increase-in-2010-772292/?kc=EWKNLNAV12292009STR2

H-1B Visa Enforcement to Increase in 2010

Share
By: Don E. Sears
2009-12-28

USCIS officials intend to up the ante of verifying and investigating the
validity of H-1B visa usage by companies. Immigration officials will ramp up
law enforcement to help thwart fraud and quell political pressure that wants
to severely limit H-1B visa usage.
The United States Customs and Immigrations Services plans to up its
enforcement of the law on H-1B visas and the U.S. companies that take
advantage of them by conducting 25,000 on-site inspections in 2010. IBM,
Microsoft, Oracle, Google and many technology giants and smaller IT shops
employ temporary H-1B visa holders to fill U.S.-based jobs from foreign
countries. After a Congressional report showed a range of fraud within the H-
1B visa program, the pressure to enforce the law on the books has increased.

In 2009, the USCIS conducted 5,191 on-site inspections, according to a report
in Computerworld, with many of the inspections being unannounced visits. The
25,000 inspection effort in 2010 could be a serious boost to quelling fraud,
but it may not be enough for those in the U.S. government who advocate for
stronger limits on H-1B visas.

Some in the U.S. Senate, led by Sen. Chuck Grassley (R) of Iowa, have
introduced legislation that would impose limitations on H-1B visa usage. In a
year of major job loss in information technology, Grassley, along with Sen.
Dick Durbin (D) of Illinois initiated a bill that seeks to insure that U.S.
companies look to hire American workers before using H-1B visas.

Resource Library:

"The H-1B program was never meant to replace qualified American workers. It
was meant to complement them because of a shortage of workers in specialized
fields," Grassley said in a statement. "In tough economic times like we're
seeing, it's even more important that we do everything possible to see that
Americans are given every consideration when applying for jobs."

The boost to enforcement became public knowledge after recently appointed
USCIS director Alejandro Mayorkas sent letters to Sen. Grassley and Sen.
Durbin. Computerworld reported how the inspections are expected to happen:

"Mayorkas, a former federal prosecutor... told Grassley that the inspections
aim to determine 'whether the location of employment actually exists and if a
beneficiary is employed at the location specified, performing the duties as
described, and paid the salary as identified in the petition.'"

Senator Bernie Sanders (I) from Vermont also introduced a bill this year that
would limit visa usage, significantly increase the fees for H-1B visa company
sponsors and protect U.S. workers.

Technology companies--with lobbying support from organizations like
TechAmerica and CompTIA--widely support the use of H-1B visas and consistently
express a skills gap between U.S. and foreign-born workers and support an
increase in the annual number of visa allotments--which is now capped at
64,000.

Microsoft CEO Steve Ballmer told the Detroit Free Press earlier this year:
"I don't care whether they're American-born or Indian-born or Russian-born.
I want to pay them to work in the U.S. That's why I'm trying to get 'em a
visa.... I'm not trying to ship the job to India."

+++++++++++++++++++++++++++++++++++++++++++++++++++

http://www.computerworld.com/s/article/9141047/Feds_plan_25_000_on_site_H_1B_inspections

Feds plan 25,000 on-site H-1B inspections

Immigration Services to take a more aggressive stance on H-1B visa enforcement
Patrick Thibodeau November 17, 2009 (Computerworld) U.S. immigration
officials are taking H-1B enforcement from the desk to the field with a plan
to conduct 25,000 on-site inspections of companies hiring foreign workers over
this fiscal year.

The move marks a nearly five-fold increase in inspections over last fiscal
year, when the agency conducted 5,191 site visits under a new site inspection
program. The new federal fiscal year began Oct. 1.

Tougher enforcement from U.S. Citizenship and Immigration Services comes in
response to a study conducted by the agency last year that found fraud and
other violations in one-in-five H-1B applications.

In a letter to U.S. Sen. Charles Grassley (R-Iowa), Alejandro Mayorkas,
director of the Citizenship and Immigration Services, said the agency began a
site visit and verification program in July to check on the validity of H-1B
applications. Mayorkas' letter was released on Tuesday by Grassley.

"[The inspection program determines] whether the location of employment
actually exists and if a beneficiary is employed at the location specified,
performing the duties as described, and paid the salary as identified in the
petition," said Mayorkas in his letter to Grassley.

Mayorkas is a former federal prosecutor who was recently appointed by
President Barack Obama. He was sworn in August and said since then, "I have
worked tirelessly to learn of the condition of our anti-fraud efforts and
other critical programs in our agency."

In September, Grassley, an ardent critic of the H-1B program, asked Mayorkas
to outline the steps his agency was taking in regard to H-1B enforcement.
Among the issues that Grassley asked for was specific information about
companies that are hiring H-1B workers for jobs that didn't exist, and who,
instead, are not paid until contract work is found.

As part of its enforcement effort, Mayorkas said the Citizenship and
Immigration Services has hired Dunn and Bradstreet Inc., which provides credit
reports among other services, to act as "an independent information provider"
and help verify information submitted by companies hiring H-1B workers.

Grassley, a co-sponsor of legislation that will increase H-1B program
enforcement, said in a statement released today, t"If employers are hiring
visa holders without actual jobs lined up, American workers are losing out.
Employers must be held accountable, and should be required to submit contracts
and itineraries to prove that a job exists. Simply having them attest that
they are complying with the law isn't good enough."

Immigration attorneys have seen an increase in demands for documentation from
the Citizenship and Immigration Services as part of the approval process.

+++++++++++++++++++++++++++++++++++++++++++++++++++

http://www.vdare.com/sanchez/091227_tunnel_rat.htm

December 27, 2009

H-1B Bodyshop vs. U.S. First Amendment: The Case Of "Tunnel Rat"
By Rob Sanchez

The blogger who goes by the nickname "Tunnel Rat" has the status of a folk
hero for American computer/IT and engineering professionals. He is celebrated
for his acerbic commentaries on his website, ITGrunt. At least a portion of
Tunnel Rat s mystique derives from his persona as a geeky Lucha libre-type
masked hero. The internet has been rife with speculation by both by his fans
and detractors as to his identity and whether his writings represent reality
or fantasy. All of that buzz adds to his legendary status.

"Tunnel Rat" expresses the popular rage of American high-tech professionals as
they are dispossessed by immigration and outsourcing. His blogs are hard-
hitting, profane and politically incorrect, especially in regards to corporate
politics, stupid managers, and unqualified H-1B visa-holders from India hired
as programmers and engineers by high-tech companies.
VDARE.COM s Patrick Cleburne has described ITGrunt as "the go-to source for H-
1B/ American Worker Displacement atrocities".

But don t bother going to ITGrunt s website now, because it and several other
websites have been removed from the internet. (Remnants of the site are still
in Google s cache but they are disappearing fast). This happened on December
23rd because of litigation by the Indian-owned bodyshop APEX Technology Group.
Apex is run by Sarvesh Kumar Dharayan [email him]. APEX has been demanding
that various websites -- some apparently run by desis from India! -- remove
all mention of its name.

Judge James P. Hurley of The Superior Court of New Jersey ordered the internet
service provider Godaddy.com to cancel the domain addresses associated with
ITGrunt.com and endh1b.com . In addition, discountASP.NET was ordered to
remove the pages from its web servers. Although Judge Hurley s order was
issued right before Christmas, these companies were required to act within 3
calendar days.

Godaddy [Email them] and discountASP.net [Email them] complied with the order
with no further resistance.

Godaddy even went one step further: it confiscated the domain name ITGrunt,
and so far has refused to release the domain back to its owner, "Tunnel Rat".

Godaddy s action prevents "Tunnel Rat" from moving his website to a different
web server. "Tunnel Rat" once moved his website to Panama to avoid censorship
in the United States. It could be argued that Godaddy has no right to keep the
domain address because it would normally be considered property of ITGrunt.

The judge issued a similar order to NetworkSolutions to shut down
guestworkerfraud.com. But at this time of writing, it remains live.

Judge Hurley has also embarked on a search to discover who is behind ITGrunt
is. He has ordered Comcast and Yahoo to reveal the identity of one emailer,
although it is not clear that the email address belongs to "Tunnel Rat".
Whoever owns that email address could be sucked into this conflict without
even knowing what hit him for no other reason than he posted information on
ITGrunt. In addition Judge Hurley ordered Facebook, where "Tunnel Rat" has a
page, to divulge his identity by Monday, December 28.

Unmasking "Tunnel Rat" could expose him to reprisals such as blacklisting so
he can t get jobs. Or worse -- he has even received death threats.

The judge is in New Jersey, but the defendants and the websites are in other
states. Attorney John Miano, former President of the Programmer s Guild,
practices in New Jersey but was unable to stop the court from in effect
claiming jurisdiction over the entire Internet.

So what, you may ask, did ITGrunt do to deserve this? In a "Certification of
Notice", a law firm representing APEX claimed that blog posts on the ITGrunt
website damaged the bodyshop s reputation and therefore makes it more
difficult to recruit H-1Bs.

Ironically, the statements Apex complains of were not made by Americans but,
apparently, by an H-1B worker who s complaining that APEX was ripping him off.
The reputation of APEX in the desi community was established way before
ITGrunt came along. You can still read some of the posts here.

The APEX rampage against "Tunnel Rat" began when an anonymous Indian poster
who claims to work for APEX posted a copy of an APEX employment agreement that
he asserted imposed penalties of up to $35,000 for quitting. He wrote:

"If you join a company (including any level between you and APEX) then pay
$35,000 or face a law suit, $9,000 for legal, training and guest services when
you quit. $35,000 if you quit in between a contract etc. The legalities of the
agreement are convoluted, abstract and can/will be used against you if you
displease APEX Technology Group Inc. So once you sign that document you are at
the mercy of the employer and much worse than a bonded laborer in India."

APEX hasn t denied the authenticity of this agreement, but it asserts its
copyright has been violated.

Suing websites for postings made by third parties is problematic. The
Electronic Freedom Foundation describes Section 230 of Title 47 of the United
States Code (47 USC ' 230) as follows:

"No provider or user of an interactive computer service shall be treated as
the publisher or speaker of any information provided by another information
content provider." This federal law preempts any state laws to the
contrary: "[n]o cause of action may be brought and no liability may be imposed
under any State or local law that is inconsistent with this section."

So why APEX is taking such drastic actions against ITGrunt and other web
sites?

The explanation could be as simple as corporate self-interest. Or there could
be something deeper going on.

Perhaps we are seeing a clash of cultures between Americans who believe in
values such as free speech in the First Amendment of the Constitution, and
foreign cultures that don t share the same enthusiasm.

Immigrants of this type won t hesitate to subvert our Anglo-Saxon heritage
when it suits their needs.

My question: why we are allowing people into this country who are antithetical
to our value system and heritage?

- - - - - - - - - - - - - - - - - - - - - - - - - - - - Newsletter Homepage:
http://www.JobDestruction.com/shameh1b/JobDestructionNews.htm

Support this Newsletter and www.JobDestruction.com by donating:
www.zazona.com/Donations.htm

To Be removed from this mailing list, reply to this email with UNSUbSCRIBE in
the subject window

Back to archives