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

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

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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.

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