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Satyam employees in Green Card fix
George Joseph in New York | February 19, 2009 07:58 IST
Of the approximately 11,000 employees of Satyam [Get Quote] USA, 7,000 are on H1B visas, says Mathew Daniel, a vice president of US operations at the company.
Though Satyam has faced considerable problems following the January 7 confession by its founder Ramalinga Raju of fraud, Daniel says Satyam has no plans to lay off any employees. Though insurance giant State Farm became the latest client to withdraw its contract with the scandal-tainted company, Daniel said Satyam has acquired 15 new clients in January alone.
On the ground, though, reports suggest that many Satyam employees have begun shopping around for alternate employment. Further, those applied for Green Cards through the company could face problems, according to Buffalo, New York-based attorney Danielle Rizzo. "Satyam's fraud has created a minefield of immigration problems for its foreign national employees in the United States," she said.
"It is possible that Satyam's I-140 petitions, whether pending or approved, will be denied or revoked for fraud. An essential piece of an I-140 petition is the petitioner's showing that it has the ability to pay the beneficiary's proffered wages. Satyam has admitted to accounting fraud, meaning that the I-140 petitions all necessarily relied on fraudulent documents," Rizzo said.
"I think the chances of I-140 revocation, even for approved petitions, are quite high. Even though it is not the employees' fault, the petition is filed by the employer and one of the key requirements in an I-140 is the employer's submission of evidence of its ability to pay.
"USCIS regulations require that evidence of ability to pay be submitted in the form of audited financial statements, federal income tax returns, or an annual report filed with the SEC. Clearly any of these documents would have contained fraudulent financial information. It is not only the beneficiary's fraud that would invalidate a petition but the petitioner's as well," she said.
Some of Rizzo's clients have filed petitions on behalf of former Satyam employees. "We have filed for more than two dozen people. Other law offices might also be filing for Satyam employees. We can assume that a sizeable number of workers are moving out," she said.
Those working at State Farm are among the ones leading the rush to the exit. Satyam can farm them out to other clients, but that requires approval from the USCIS, which may not be forthcoming.
The American Competitiveness in the Twenty First Century Act (AC21) permits post-6th year H-1B extensions in three-year increments if their I-140 petition has been approved, and whose priority date is not current. But if the USCIS cancels their I-140 approval later, the employees lose their legal status. They have to start the labour certification process all over again.
The AC21 also allows portability, meaning one can move to another company if his I-140 is approved and his I-485 petition has been pending for 180 days. But if the I-140 is revoked or withdrawn, it is not portable, except if it is withdrawn after the I-485 has been pending for 180 days.
"But revocation for fraud is not a withdrawal; thus the I-140 would no longer be valid for permanent portability purposes. Based on the high likelihood that Satyam's I-140 petitions will all be revoked, the safest course of action for former Satyam employees would thus be to start a new green card application from scratch as soon as possible with a new employer," Rizzo said.
Revocation of an approved I-140 for fraud also results in the beneficiary losing the priority date established by the petition, and underlying labour certification. Satyam employees who find new US employers can start the green card process afresh with a new PERM application. However, if the Satyam I-140 petition is revoked prior to their receipt of a Green Card, the earlier priority date is likely to be lost.
"It would appear that as US companies terminate their contracts with Satyam, there will be US consulting companies vying for those contracts who are more than willing to sponsor former Satyam employees for non-immigrant status and potentially also for new Green Card applications," Rizzo noted. "Because of the legal complications created by Satyam's fraud, however, each of these cases must be carefully analyzed by an immigration attorney."
Officials with Satyam say they foresee no such problems. The Securities and Exchange Commission has not taken any action against the company in the US, and unless the SEC takes action, the USCIS cannot take cognizance, they point out.
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