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Federal Judge in Los Angeles Acquits H-1B Employment Contractor and Urges Government to Clarify Regulations
by Angelo Paparelli

Los Angeles, CA – June 7, 2001 – Today in Los Angeles, United States District Judge Florence-Marie Cooper found an H-1B employment contractor not guilty of all charges in a ten-count indictment. The accusations alleged that he submitted fraudulent petitions for H-1B computer programmers from India, induced the aliens to enter the country illegally and then harbored them in nearby apartments.

The evidence against defendant Gopala Krishna included his signed confession, prepared by a government investigator, stating that he did not have jobs for the H-1B workers at the time he submitted the petitions, although he indicated that he would try to find them jobs in the future. The confession also admitted that he was unable to find the aliens jobs with end users, and that he could not pay the promised wages once they arrived in Los Angeles.

Krishna’s attorney, Ivan L. Klein of Los Angeles, introduced the expert testimony of Angelo A. Paparelli, a certified immigration and nationality law specialist. Paparelli testified that policies of the INS, found in the preamble to an INS 1998 H-1B rule, recognized that end users may give employment contractors only one day’s notice of the need for an H-1B worker. Paparelli also confirmed that a 1995 INS policy memo interpreting the INS "itinerary" requirement found it acceptable in some cases for an employment contractor merely to offer a general statement about the alien’s "proposed" or "possible" employment.

Significantly, in the Krishna case, the INS never revoked the H-1B petitions and even approved change of employer H-1B petitions for the same aliens, thus undercutting the government’s allegations that the aliens entered illegally and were "harbored."

In her not-guilty ruling, Judge Cooper urged the INS and other government agencies that administer the H-1B visa program to provide clear regulations about what conduct is permitted or prohibited in the process. She affirmed that even direct employers could never be sure whether a proposed job would remain open during the six-month time frame it may take to get a petition approved, the visa issued, and the alien’s arrival at the job site.

This ruling comes at a significant time for H-1B employees and employers who are currently reeling from the impact of a slowing US economy. Recent reductions in force at US employers have included a number of H-1B workers. RIFs in the US workforce, coupled with recent reports of arbitrary H-1B employment site visits by armed INS officers investigating whether the H-1B workers’ actual job location and duties are consistent with the statements made in the INS petition papers, have prompted many companies to re-evaluate their H-1B compliance policies. Thus, employers should proceed with caution in preparing their petitions, and should work closely with immigration counsel to ensure that their companies comply with the law despite the current ambiguity of the H-1B regulations.

About The Author

Angelo A. Paparelli, certified as a Specialist in Immigration and Nationality Law by the State Bar of California, Board of Legal Specialization, has been practicing business-sponsored immigration law for over 20 years. He is the managing partner of Paparelli & Partners LLP, a nine-lawyer firm in Irvine, California, that practices immigration and nationality law.