Tuesday, March 30, 2010

Judge Deals Major Blow to U.S. Prosecution in H-1B Fraud Case

(Special Thanks to Weird Al Yankovic)

"What if Judge Pratt was one of us? Just a U.S. techie like one of us? Or is  he just yanking us? We're trying to pay for our homes."
-U.S. IT Workers

Iowa Judge Deals Major Blow to U.S. Prosecution in H-1B Fraud Case

Des Moines, IA – Patrick Thibodeau at Computerworld reports here that the United States government “has run into trouble with a judge” after he dismissed “a number of counts and suppressed some of the evidence” taken from Indian IT services firm Vision Systems Inc.'s computers as the U.S. seeks $4.9 million from the company in an indictment issued last year. The government alleges that the New Jersey company set up shell companies in Iowa so it could pay some of its H-1B visa workers the Iowa state's lower prevailing wage rates, but Judge Robert W. Pratt's 41-page ruling last week took the “highly reckless” Feds to the woodshed for the “over-inclusive” process used to acquire data in their seizure of electronic records.

Thibodeau reports what Judge Pratt describes as the Fed's “gross recklessness” below, with the judge citing two key problems:

The government transferred those images to a computer expert who then extracted all the files matching the search criteria established by the federal agent in charge of gathering the evidence. The judge said the search criteria used by the government was "over-inclusive" and not limited to the warrant. For instance, the computer expert was required to produce "all email files" and "Word (or Word type) documents opened/modified in the last year." The warrant also required the government to make its examination of the digital images within 60 days, which the government failed to do, according to the judge. Pratt termed the handling of the electronic search as "highly reckless" and "gross recklessness," but he did not suppress the paper files collected. The court also dismissed a number of counts related to charges involving mail fraud, knocking out eight of the 18 counts.”

So, there's an over-zealous computer expert and federal agent collecting data. Is the problem that they took their jobs seriously or that the amount of data was off the charts? When it comes to visa fraud, there are lots of questions about the judge's ruling - like what was he smoking? Perhaps the most important one for U.S. IT workers being "Is Judge Pratt pro-corporation or pro-American worker?" One Computerworld comment in the link above even suggests the judge may be paid off to help deliver a positive outcome for this company accused of visa fraud. But a quick search on Judge Pratt shows a thoughtful judge, as this  Cannabis News article (see comments) suggests he rules favorably on behalf of both the welfare of individuals and the greater good for all U.S. taxpayers. In SENSELESS SENTENCING: A FEDERAL JUDGE SPEAKS OUT, Judge Pratt reveals a compassionate conviction to delivering justice by saving drug offenders and taxpayers the expense of “unnecessary lengthy incarceration of drug offenders" here in a senseless “war on drugs”:

I have only been a federal judge for a short time. In that time, however, I have learned that sentencing offenders under the guidelines is an emotionally draining experience that requires consideration of the crime and past conduct of the defendant. Consideration must also be given to the effect of guideline sentencing on our country. What have we done by creating a system that many federal judges have rejected as unfair, inefficient and, as a practical matter, ineffective in eliminating drug use and drug-related crime? As taxpayers, we might be willing to foot the enormous bill for the "war on drugs" if we had seen results, but as the explosion of meth crimes in Iowa illustrates, the guidelines have not helped to cut drug use or crime.”

Judge Pratt also offers the following accounts against the war on drugs:

A respected Iowa federal trial judge was required to sentence a 44-year-old illiterate Iowan to 21 years in prison. The offender had no previous serious criminal convictions, and, as Bright pointed out, was so "dangerous" that pending trial he was released on his own promise to appear for trial. He will be 65 when he emerges from federal prison. The other citizen in this case had grown up on an Iowa farm and, while he had a history of minor involvement with the law prior to this case, he, too, had been released before trial on his promise to appear. This 48-year-old person received a sentence of 19 years in prison. Both of these offenders deserved time in prison. But, as Bright pointed out, it is doubtful that any reasonable judge, who had not had his or her hands tied by the guidelines, would have sentenced these men to more than 10 years in prison.”

In his ruling on Vision Systems, Inc. at least the paper files were not suppressed. But how far will the Feds get in their prosecution without the digital goods to present as evidence? The case against Vision Systems, Inc. has been described as “the largest H-1B fraud case ever brought forward”, a visa fraud case that the then Bush appointee U.S. DOJ Southern District of Iowa Attorney Matthew G. Whitaker described as "just the tip of the iceberg" (who is now gone and replaced with Obama appointee Nicholas A. Klinefeldt who was also sworn in by Chief United States District Court Judge Robert W. Pratt). Kleinfeldt has a truly impressive legal rise, despite his father's prison sentence for a meth-related conviction as this article chronicles him clerking for Judge Robert W. Pratt from 2000 to 2002 along with his “strong ties” to Iowa Senator Tom Harkin, having worked for his 1996 reelection campaign and on his Senate staff before attending law school at the University of Iowa. Nothing new there – an ambitious law school bound student staffs for an Iowa Senator and then goes on to clerk for an Iowa judge who later swears him in for his new gig as and Obama appointed U.S. DOJ Attorney. So, what happens to Whitaker's take on this visa fraud case being “the tip of the iceberg”? Stay tuned.

Thibodeau also observed that Judge Pratt's ruling about the outcome of this case is “uncertain”.

Let's hope that during this neo-frat boy corporate state's War on America's Middle Class, the same inspiration that drives decision makers like Judge Pratt in his Judges Against the Drug War will guide future judges to rule fairly and squarely when it comes to protecting American jobs from being given away to imported, cheap workers under the ruse of a Great American Labor Shortage. As Iowa Senator Chuck Grassley said in eWeek:

 "We're closing loopholes that employers have exploited by requiring them to be more transparent about their hiring, and we're ensuring more oversight of these visa programs to reduce fraud and abuse. A little sunshine will go a long way to help the American worker."

And yeah, yeah loopholes ain't good, yeah yeah visa fraud is bad, yeah yeah yeah yeah...


1 comment:

Mukesh Speak said...

H-1B as a remedy for labor shortages and as a means of hiring "the best and the brightest" from around the world (which I

strongly support), the vast majority are ordinary people doing ordinary work. Instead of being about talent, H-1B is about cheap labor.

H-1B visa holders may only work for sponsoring employers after approval by the Departments of Labor and Homeland Security.

Although most of the non-compliant H-1B workers had posted wages from employers in fields associated with technical or

specialty occupations, the report noted that one H-1B worker had earnings from a restaurant and janitorial service.

H-1b visa