H-1B Fraud and the Trafficking Victims Protection Act

The Trafficking Victims Protection Act (TVPA) is a little known law that is starting to receive massive attention in the H-1B/L-1 outsourcing world.

TVPA is a U.S. Code that addresses “trafficking in persons, also known as involuntary servitude/slavery or forced labor. These provisions are contained in Chapter 77 of Title 18 and are sometimes referred to generally as Chapter 77 offenses. The Trafficking Victims Protection Act (TVPA) of 2000 supplemented existing laws, primarily 18 U.S.C. § 1584 (Involuntary Servitude), and also provided new tools to combat trafficking.”

Over the past eight months I have been contacted by more than 400 current and past H-1B/L-1 workers via the website www.tvpaclaims.com. Workers from companies such as HCL, Tata and Wipro have expressed to me how they are/were lied to and working in unlawful ways. Many of these workers have replaced Americans only for low wages and greed. The statute of limitations is 10 years.

The unique section of TVPA is the “Forced Labor” clause. Forced Labor is defined in Section 1589 of Title 18. This makes it unlawful to provide or obtain the labor or services of a person through prohibited means.

The prohibited means are:

(1) by means of force, threats of force, physical restraint, or threats of physical restraint to that person or another person(2) by means of serious harm or threats of serious harm to that person or another person; (3) by means of the abuse or threatened abuse of law or legal process; or (4) by means of any scheme, plan, or pattern intended to cause the person to believe that, if that person did not perform such labor or services, that person or another person would suffer serious harm or physical restraint.

When we look closer under the Forced Labor and Prohibited means section it is apparent this could apply to almost EVERY H-1B/L-1 worker. However, the key component is the word “coercion.” When outsourcing companies dangle the proverbial “Green Card carrot” and then don’t follow through, this is considered coercion, a crime under TVPA. It’s also clear this is a “scheme or plan” to get a worker to “believe” s/he is going to receive certain benefits. Companies make promises they know are blatant lies. When benefits and promises are not kept and workers complain, the workers are threatened with deportation, blackballing, withholding pay and working long hours. All this in the name of cheap labor and replacing the American worker.

Now take into consideration what prohibited means. In 100 percent of people who have contacted me, No. 2 and No. 3 noted above are present. This is very easy to prove in a court of law, which is why cases are going to mediation quickly.

TVPA lawsuits are starting to fly, and there is little defense. The law is very clear, and companies/clients are guilty and know it. Clients such as Comcast and Fiat Chrysler try and hide behind the Master Service Agreements (MSAs); however, this approach does not hold up in a criminal proceeding. TVPA is a criminal act which quickly turns to a civil settlement. Still, there is room to prosecute the companies criminally.

There is more than one way to stop H-1B/L-1 fraud, and prosecution is one of them. The American worker is being displaced by illegal means and calculated schemes, and it needs to stop!