Has Devyani Khobragade been made the scapegoat for all the misdeeds of employers in the US?

December 13, 2013  

How many more employers are going to be arrested for visa fraud?

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"Sujeet"

By Sujeet Rajan

NEW YORK: The arrest of Dr. Devyani Khobragade, Deputy Consul General of India in New York, is the worst diplomatic faux pas between the US and India in recent years, and is likely to get ugly if she were to be sentenced and jailed.

The arrest of Khobragade – the first ever of an Indian diplomat in the US – has wider political repercussions as well for the Indian government, who are embarrassed, shamed by this sudden development. They may face the wrath of the general populace for this stinging diplomatic rebuke from a trusted ally which took no cognizance of the Vienna Convention treaty that grants immunity to diplomats. It’s a stab in the back.

Dr. Devyani Khobragade

Dr. Devyani Khobragade, Deputy Consul General, Consulate General of India, New York.

The surprising arrest of Khobragade – as she was seeing off her two daughters to school in Manhattan Thursday morning, poses several disturbing and complex questions: it is very likely the State Department knew of the investigation being carried out by the office of Preet Bharara, the United States Attorney for the Southern District of New York, since this was a federal case that involved visa fraud. So why did they not intervene and cloak Khobragade in diplomatic immunity as per the provisions of the Vienna Convention?

Why not slap Khobragade with a lawsuit, and bring the matter to court, like in two previous cases involving Indian diplomats in New York – involving Ambassador Prabhu Dayal, the Consul General of India who retired earlier this year, and Dr. Neena Malhotra, the Consul for Press and Culture, from 2006-2009, both of whom were mired in cases involving allegations of paying a maid less money than promised, making her work long hours.

Did the authorities here get tired of repeated cases of maid abuse emanating from the consulate in New York, and decided that enough was enough? That Khobragade be made the poster diplomat for all things associated with wage abuse of employees brought to the country? If that is so, then this is also a clear warning for all employers, including India’s IT giants, who bring workers on H1-B and L1 visas.

If the US were to go after employers who have cheated employees of their due wages as given on H1B petitions, then likely thousands might see jail time.

Khobragade’s arrest is a warning that next time, if there is a visa fraud case, it might not be settled out of court, like what happened less than two months ago with Infosys agreeing to pay $35 million. If Indian diplomats can’t be assured of immunity for such transgressions, then what is the likelihood of top executives of companies that perpetuate visa fraud to find themselves behind bars? A very good chance, one might assume.

No doubt Bharara’s office has done an excellent job of investigation and are on solid footing going after Khobragade, as even her lawyer, Daniel Arshack, told a judge on Thursday that he will fight for the release of his client on grounds of diplomatic immunity. Khobragade was released on $250,000 bail.

However, both the US and Indian governments are at fault for letting matters of the abuse of maids and human trafficking to continue with impunity, and to bring matters to a head by arresting a senior diplomat. They had even made provisions on how to counter this festering issue.

More than three years ago, a staffer from Secretary of State Hillary Clinton’s office had met with all the heads of the diplomatic corps in Washington, DC, and briefed them on a spate of cases that surfaced on abuse of maids who came from home countries. A few official directives were also issued to curb this, which included: suspend the issuing of A-3 visas (the same as was given to Khobragade’s maid) if the Secretary of State determines that there is credible evidence that one or more employees of a foreign mission has abused or exploited one or more non-immigrants holding such a visa, and mission members pay any award of damages in cases brought against them by their former domestic workers.

So what did come out of that? Despite two cases – involving Dayal and Malhotra – at the Indian consulate in New York, the State Department went ahead and processed the visa for Khobragade’s maid, and India never paid the almost $1.5 million that was awarded by a court in New York in favor of Malhotra’s maid, who won the case three years ago.

Also, as per a statement issued by the Indian Embassy in Washington, DC, the US government has not cooperated with the Indian government. The statement says following a court order in New Delhi against the maid of Khobragade, Sangeeta Richard, India had requested the US to issue an arrest warrant for the maid, who left Khobragade’s service and has been absconding since June of this year.

The statement added: “The Embassy of India in Washington DC had immediately conveyed its strong concern to the U.S. Government over the action taken against Dr. Khobragade. The US side have been urged to resolve the matter with due sensitivity, taking into account the existing Court case in India that has already been brought to their attention by the Government of India, and the Diplomatic status of the officer concerned.”

However, India should know well, that such an action only facilitates and makes stronger a case for political asylum. The fact remains that good nannies in areas like New York make six figure salaries, with benefits like paid vacations and health insurance. And when they also get a shot at asylum and a Green Card in domestic abuse cases the temptation is too great for hired help from India, apart from the alleged abuse that they face.

So what is the solution now? According to attorney Ravi Batra, who fought initially the case for Dayal, a new law needs to come up between India and the US for diplomatic harmony as well as to save the careers of diplomats.

“Absent the creation of a new legal category for diplomatic foreign domestic workers, which exempts them from US labor laws, including, wages and hours, American laws must be followed to avoid both criminal and civil liability as well as diaspora  and foreign-sovereign embarrassment,” said Batra. “Foreign nations who pay their workers at or near US labor rates are free from this risk, however of 194 countries, most nations are below US-mandated hours and wage standards, and to this later group’s diplomatic corps – they remain at high risk to be in the cross-hairs of illegality and reputation-suicide.”

(Sujeet Rajan is the Editor-in-Chief of The American Bazaar)

To contact the author, email to sujeetrajan@americanbazaaronline.com

  • Raghubir Singh

    Apart from underpaid maids-at least some Indian parents who choose to spend their winter years with their children to get a little bit warmth of love – end up no more than unpaid, unloved and unwelcome people. They do all chores from cooking,cleaning, house keeping, transporting kids from schools and classes.and back through out the day while sons and daughters work not worried about the household. May be the community leaders can keep a check on ill treatment and exploitation of parents who in any case will never admit maltreatment. But this is reality of modern times where love and old values have take a beating.

    • Rashi

      I agree with Raghubir. After coming to the US, I have seen parents usually comes on a visitor visa as babysitters. Especially ( not generalizing) it is very common where both of the parents are working on H1B visa. Majority of the US states have licensed day cares, in spite of getting hefty pay checks these guys treat their parents as shit. Also, many times during my India travel I got to see old grand parents carrying 1 year old or an elder kid alone. When asked, the grand parents shared ” He/ she has working parents, so no time to take care of the baby. Baby/ kid ( who is a US citizen) stays with us in India and every year for 2-3 months we get the baby to the US.” Even one of the H1B holder parents were doctors in the US. It is a very sad situation. Parents should never be treated as servants.

    • Manohar

      This is not about parents, but domestic helps. Your generalization is going little too far here. A lot of Indians definitely bring their parents US, if they are available, to help them with their kids. I dont see anything wrong with that. Parents volunteer for this because of their genuine love for their kids and grand kids. They also get to see the life in a foreign country and get to experience new culture and tourism. Parents are obviously adults, if they feel uncomfortable, they can go back anytime, I dont see need for all the hue and cry you raise in your comment!

    • DA

      The grandparents that I have met must be different from those you have met – every grandparent in India that I know craves time with the grandchild. I used to love being with my grandparents, frankly, as they spoilt me no end. I really miss them when they are gone. This is one positive about Indian culture, which you chose to portray in dim light.

  • Rashi

    Hopefully, USCIS will track the fraud job consultants, fake resume holders and last but the not the least fraud GC filings especially EB1C fraud ( only the loop holed ones).

  • Ronit

    there are a lot of things that may have been over looked, maybe she is working for RAW and they uncovered her activities and booking her for things that don’t really look real. diplomatic immunity is a very big card and cannot be violated over these small issues. guys this is not a conspiracy theory……….if you want a person of interest booked, a lot of issues can be created. lets see,she is young, smart and a diplomat……….indian govt did not even raise the issue of diplomatic immunity…….there is more to this situation than what is being disclosed.

  • Mark Johnston

    In plain English Devyani Khobragade lied in writing to U.S. Government . As if cheating her employee was not low enough . Federal charges against Khobragade include visa fraud and providing false statements on official paperwork. She filed visa documents claiming to be paying that employee about $10 an hour. Speaks volumes for Khobragde’s lack of integrity and respect for America and it’s people.
    For a “diplomat” such dishonesty is unacceptable .

    The Indian Government needs to apologize for Khobragade’s visa fraud as well as her lack of respect for our laws .

    .

    • Raj G J Singh

      Mark – Diplomatic immunity provides immunity to any diplomat period ! US has to honor that immunity no matter what ! This is international law. If US is a law abiding country, why are you not following it ? How many psychics in US military/ FBI have slaughtered/executed innocent civilians and have escaped sentence because of immunity ? If the diplomat is found dishonest, provide material evidence to Indian government and declare them persona non grata and abolish that visa category if needed. Also when NSA can backstab all countries and eavesdrop their conversation contrary to international laws and be dishonest, I don’t think this is a big deal. Ask Obama to give explanation to his own people and apologize first and then talk about finding other dishonest people.

    • World citizen

      Hmm.

      Like the laws that allow torture, strip /cavity search of non-criminals, orwellian tapping of phone records? Like millions of mexicans being pardoned along with people who employ them? Along with illegal drone attacks the world over?

      I do not like the Indian penal code 377 law against homosexuality one bit, but in this case if we do have a recording and proof of gay american diplomats, arrest would be worthwhile.

      The fact that a maid who never would have dreamt of going to the US and get a decent salary that was proportionate to what khobargade got did not enter stupid bharara’s mind.

      Its like chaning one’s religion or citizenship. One then has to prove of one’s worth by being a better citizen and a more fanatic follower of religion than the natives. That’s what preet bharara’s doing.

      Nixon would be cheering these stupidities.

  • omnamo

    There is no diplomatic faux here, when US can handcuff and perp walk Stauss Kahn who was contendor of french presidentshit. She is just small fish!

  • Surjit Dhatt

    I think that Surjeet Rajan is simplly supporting this Lady,s action because she is Diplomat. This is case of “AFFLUENZA” She has violate the law of the land and she must pay. We say in America If you do the crime you must do the time regardless of your status in society. Inspite of her diplomat position and highly educated person she has no regard for the law and honesty. This diplomat shoud be ashamed of her action and she is embarsment to the diplomat corps and to her country that she put herself and her country in this situationj

  • NT
  • Raghav Sharma

    “So why did they not intervene and cloak Khobragade in diplomatic immunity as per the provisions of the Vienna Convention?”. Seriously? This is coming from a respectable journalist? How about repeated offenses by the consulate that abuse the law of the land? If India is so wanting to do business in US or to grow bilateral relations, how about respecting local laws and punishing the offenders. So far, we are yet to hear what Indian authorities have to say about fraud and lying on the visa application.

    As for the nonsensical idea of having a separate category for diplomatic workers to bypass the labor laws (so that they can continue to abuse the workerbees), how about a simple solution that gets India (or any other country) to simply pay a higher wage or allowance for such help as part of the perk? And for heavens sake, when you have had two cases already, what does it take for India to tell its employees to stop the practice. Perhaps it does take an embarrassing situation like this to wake people up. Preet Bharara – you got my vote for a job well done .

  • Raj

    There is more to this story i suspect. People who knows the inside scoop know what I am talking about. This is about corruption . Almost all the Indian diplomats , including the ambassador might be doing it . Domestic help / Baby sitters are paid the low indian wage and the diplomat will pocket the remainder of the money that is paid to them by the Indian government . Do the math and you will see that this crook and her family was actually making about $6.50 an hour on the back of this domestic worker who was brought from India. She was stealing money from the Indian tax payer . Folks at the top, Prime minister on down knows this very well buy they are all choosing to play dumb. Shame on them. Com on folks we can do better than this .

  • lawyer

    Also, the United States hasn’t signed the Vienna Convention.

  • Ashoke Mitra

    No matter what if you give false information in any US Visa application it is considered a Federal offense punishable by law. A seasoned diplomat should know that giving false information in any visa application for any country is considered a criminal offense. I don’t know how she thought she could get away with it. We all came to this country looking for a better life but one thing is for sure there is no tolerance for lies and false information especially as it relates to immigration. If you break the law and are convicted you have to do the time.

  • Christopher

    What has been fascinating about this case has been the cultural dimensions involved. As an American, I can tell you that NOBODY in America, save for a few mega-millionaires keep domestic servants, personal drivers, cooks, or anything of that nature. And cost is not the primary reason. Most Americans simply find that one individual working for the comforts and pleasures of another individual in such a subservient role to be very offensive to our values of equality and dignity for the common man. I don’t believe that most Indians appreciate how little respect Ms. Khobragade’s position will receive due to our attitudes on this. Our hearts will always be with the worker, not the VIP.

  • Om Verma

    Solution is very simple, Stop Playing with US Laws……… Diplomatic immunity as laid down under Vienna convention may not apply here as this was not directly related to diplomatic work……..NO, ..It’s not a stab in the back at all ..It’s Case of Visa Fraud and False Statement to United State Government ……Indian diplomats are making history, I remember Neena Malhotra, Prabhu Dyal, Anil Verma and Now we have Devyaani….. Very soon something else will come out too…. I heard from somebody that they also taking advantage of Tax exempt card…… They do buy expensive merchandise for friends to just save their sale tax……… Tax exempt card, is not for friends…. period….

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