As Infosys struggles to portray Jay Palmer as a lone wolf who's spreading "falsehoods" about the company in an effort to secure a lucrative financial settlement, the facts of the visa fraud case are getting in the way. Among the many facts that Infosys management would no doubt prefer you not know is that a second whistleblower, who has a background in immigration matters, and who was working in Infosys' human resources department, repeatedly pleaded with the company to take action to stop what this whistleblower characterized as illegal activity - the same documented activity that compelled Palmer to file the lawsuit that in turn prompted the U.S. government's ongoing criminal investigation of Infosys.
I will not identify this second whistleblower, who has not gone public as Palmer has, and who has since left Infosys. For ease of readability, I will refer to this person in this post as "Whistler."
On December 28, 2010, Whistler sent an email to Jeffrey Friedel, Infosys' corporate counsel, and Lynne Grant, Infosys' employee relations manager. Whistler explained the purpose of the email:
I want to provide again (in writing) the illegal activities I see on a daily basis that have still not been remedied and again offer to use my expertise to help clean up the B-1 visa problems. I want to reiterate -- I have an intense immigration background from a large US company employing approximately 3,000 foreign nationals throughout the US. This background is what allowed me to recognize the illegal immigration practices I have witnessed while at Infosys. I have been employed with this company for almost three years now and am appalled at the non-compliance and illegalities I continue to see.
Whistler spelled out the areas of non-compliance, beginning with Form I-9, the U.S. Citizenship and Immigration Services form that verifies an employee's identity and establishes that the worker is eligible to accept employment in the United States:
When I started working for Infosys in April 2008 I was immediately aware that there were problems with I-9 compliance. When I continued to bring up the issue to my manager I was told "don't worry, this is the responsibility of the Immigration department" (which takes direction out of India) and "what we don't know won't hurt us." If ICE were to come into the [Infosys] Plano [Texas] office and actually view the I-9 forms and also the electronic storage system, the fines for incorrectly completed forms and forms with incorrect documentation would be astronomical. Should ICE or the USCIS conduct an audit at any of the Infosys offices or arrive at our client sites across the US -- the question will be to the employee -- Did the person who signed your I-9 form actually see your documents? In many cases the answer will be no.
Whistler went on to describe the now-famous B-1 visa problem:
Employees from India currently in the US on B-1 (Business visas) are physically working at client sites and Infosys is billing for their work. Completely illegal in that a B-1 visa is only valid for entry into the US for various meetings and training. To perform work on a B-1 visa is illegal. This was the basis for my Whistleblower email to Infosys. Since these employees do not have valid work authorization and are unable to apply for a SSN, they are told to only stay in the US for 4-8 weeks. They are unable to apply for a driver's license, open a bank account or rent an apartment. Most importantly -- the employee is working in the US and neither the employee nor Infosys pays US Taxes. I find it appalling that our managers would encourage employees to enter another country illegally and then cripple them in their ability to open a bank account, rent a car, obtain necessary health insurance (including worker's comp, disability benefits, etc). This is inexcusable. I have emails from employees stating they are here working on B-1 visas.
Whistler then outlined the problem of Infosys and its employees failing to pay federal, state and local taxes:
I recently became aware of employees working for large, well-known clients in the Banking and Capital markets industries in New Jersey who have listed their work location as New York in our systems. So in April of 2009 when the client moved the project from New York to New Jersey, the managers and employees did not change their work location. Meaning for over a year and a half these employees and Infosys have not been paying the correct Federal, State and Local taxes. This is a common practice by Infosys managers and employees alike throughout the US. I had to explain to an employee who would have been eligible for New Jersey State disability that I cannot file in NJ as there will be no record of the employee in the NJ tax database and I will not fraudulently file in New York. This employee should have been eligible for disability.
Another issue I raise is that employees who are working on H-1Bs (approximately 80% of the 15,000 US employees) are required to file a new LCA [Labor Condition Application] and an amended I-129 [Petition for a Nonimmigrant Work Visa] petition with the USCIS any time their work location changes within 50 miles of the old location or anytime the state location changes. I firmly believe the USCIS will find that since many of the Infosys employees do not report their location changes, LCA's have not been filed to reflect the same.
Whistler went on to describe the stress of the situation and to plead that action be taken:
All of the above are not random incidents within the company and I am stressed and feel dejected that I have not been given the opportunity to help stop the illegal activities. I brought this forward because I am tired of working for a company who on a daily basis blatantly breaks the law and when someone brings up the issue they are fired, let go or told to look the other way. The illegal and/or unethical practices going on here are a risk to the stellar reputation of Infosys in India and throughout the world. The day to day stress of seeing illegal practices from an HR stand point is incredible. I have no problem with another culture or country profiting, however it should be legally obtained profit. Infosys made a billion dollars profit last year off the US and much of it due to illegal practices. I firmly believe that those who are not part of solution are part of the problem and I came forward because I want to be part of the solution. I have filed for Whistleblower protection and hope I can make a difference and still retain my job. ... I feel it is critical for Infosys to be compliant in all areas, especially immigration. With our high ratio of foreign nationals and also the fact that we are classified as an H-1B dependent company, I would suspect we would be an automatic target for audits from the DOL, USCIS and ICE.
I would like to use my expertise and experience to make a difference. Kindly provide more detailed feedback to let me know what steps we are taking to eliminate these issues. You say you cannot discuss them with me; however I am part of the HR team.
Unfortunately, it appears all of that fell on deaf ears. On February 24, 2011, Whistler emailed Friedel to express concern about the lack of action. This excerpt will give you the gist:
Without a policing force (me -- since I have the motivation to abide by US law and the immigration knowledge) there is no cost-effective way to stop this illegality. You can make changes to the systems, however there are ways around the systems when the managers are clearly driven by profits, pressure and greed to engage in this activity. Having the BPHR's [Business Partner Human Resources managers] monitor this is also a futile move. Many of the BPHR's are more dedicated to Infosys and the managers than to US law. They will not make waves with the managers, especially when they don't really understand how immigration law relates to B-1 visas. I have real concerns about the lack of follow up I have experienced since filing for whistleblower protection. This is extremely frustrating and very stressful that you have not included me in the B-1 or I-9 clean up. I have brought up serious allegations but from my perspective Infosys is either denying or ignoring the issues -- or demonstrating a token effort at resolution.
Now, consider all of this in the light of Infosys' response to Palmer's testimony to a Senate subcommittee hearing on immigration reform last week, in which he described these very problems. That response, which was attributed to Infosys Chief Marketing Officer Paul Gottsegen, claimed that Palmer's testimony was "full of inaccuracies, exaggerations and falsehoods," and that Palmer "is obviously intent on spreading his falsehoods about Infosys and our business practices as broadly as possible in order to advance his objective of getting as big of a payout as he can from the Company."
It's unclear to me how Infosys could have believed that none of this other information would eventually come out, and that a statement like the one released by Gottsegen wouldn't come back to haunt the company. Perhaps Infosys gambled that none of the evidence would become public because the company would either settle with Palmer (the odds of that aren't looking too good for Infosys, since Palmer has said that being called a liar has made him more determined than ever to see the case go to trial), or that its motion to compel arbitration in the case would be approved so that the dirty laundry could be aired behind closed doors (that motion is still under consideration by a federal judge in Alabama).
In any case, you can't blame Whistler for not wanting to go public the way Palmer has. Palmer has been threatened, ostracized, prevented from going to work, and now publicly branded by his employer as a liar. The toll on him and his family has been unfathomable, all because he had the courage to come forward and do the right thing.
But let's not forget Whistler's courage, either. I, for one, can't read those emails without admiring the courage and fortitude it took to send them. And I'm very confident that valiant effort will not have been made in vain.