Indian diplomat arrested, handcuffed in US for visa fraud

[JMM99]

What does "work permit" mean under Article 47, VCCR ? - Part 2

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Having established that even an apparently simple "work permit" program gives rise to a huge amount of regulation, we now move closer to this thread's target, immigrant employment.

The Federal DoL-WHD has jurisdiction over some aspects of immigrant employment, Wage and Hour Division Administered Immigration Programs. However, the major players in that area are DoS (as to the various visa processes) and DHS-CIS (as to Green Cards and EADs), which are discussed more fully below.

But before going there, we should look to see if there is an "ordinary meaning" given to the terms "work permits" and "employment visas". We find that the terms tend to be mixed together, as in "Work Permit Visas" (International Center at the University of Michigan):

A visa is an official stamp in your passport authorizing you to travel, work or study in that country for a specified length of time. All countries, including the US, require a work permit visa for foreign workers; employers will not hire you without one.

For more on the "ordinary use" of these words, see "Immigration and Visas" (International Center at the University of Michigan).

More particularly dealing with the terms used in Article 46 and Article 47, VCCR, we have "Work permit/residency permit requirements for foreign employees" (chart by Practical Law):

India

Work permits required are:

"¢Employment visa for employment purposes, including execution of a project in India. Eligibility conditions include a minimum annual salary of US$25,000 in a highly skilled/professional job.

"¢Business visa for establishing industrial/business ventures, or for exploring business possibilities/activities.

Foreign nationals entering India on a long term visa (more than 180 days) must register with the Foreign Registration Office, within 14 days of their arrival in India.

US: Federal

All foreign employees must obtain authorization from the Citizenship and Immigration Services to work in the US.

US: Michigan

U.S. employment authorization rules are governed by U.S. federal law.

Generally, employees who are not US born need to hold an immigration status or a special employment authorization that allows the person to work in the US. The method to obtain a work-authorized immigration status or work authorization depends on the specific circumstances involving the combination of the type of position they are to hold, employment or family immigration sponsorship circumstances, and the individual's educational and/ or work experience credentials.

US: Iowa

Employment of foreign nationals is regulated at federal level. A foreign worker must supply documents sufficient to complete Form I-9 (Federal Regulation 8 C.F.R. §274a).

Either of the following documents satisfy this requirement:

"¢An employment authorization document (EAD) (also known as a work permit) (Form I-766).

"¢A permanent residence card (green card) (Form I-551).

However, in many cases, the Form I-9 requirements can be met without either of these documents.

From these examples, we can conclude that the term "work permit" goes well beyond documents explicitly named "work permit". We also can conclude that "work permits" are an integral part of the visa processes (with multiple visa types being offered depending on facts applicable to any given immigrant).

We see that interplay in this online advice from an immigration lawyer in New York, "Non Immigrant Visas and Work Permits":

A Work Permit (Working in the US info) allows a foreign worker to obtain temporary employment legally within the United States. It is a common misconception that Work Permits are a "one-size-fits-all" arrangement, when in fact nothing could be farther from the truth. ...
...
Before you file an application, you should understand the difference between a work permit and a visa. Work permits are actual cards and they are applied for and approved only in conjunction with a separate immigration or nonimmigrant process. For example, you may be granted a work permit by virtue of enrollment in school and pursuant to Optional Practical Training; you may be granted a work permit because your spouse is employed in the United States on a particular visa (L or E Visas); you may be eligible for a work permit because you have an Adjustment of Statue Application pending or because you have been granted TPS; you may be eligible for a work permit because you have filed a petition with the Immigration Court. The most important determination is whether you are eligible for a permit based the nature of your pending immigration petition and/or other pertinent factors.

Some facts about Work Permits you should know:

"¢You must apply and be approved for a Work Permit

"¢Work Permits are only valid for a certain amount of time, usually one year

"¢You may renew your Work Permit and extend the amount of time only in certain cases

"¢You will not automatically obtain a Green Card because you have a Work Visa

"¢You are responsible for filing a timely extension of a Work Permit: there is no automatic renewal
...
Nonimmigrant Visas are distinct from Work Permits. Nonimmigrant Visas allow persons to work or study or visit temporarily in the United States. Many Nonimmigrant Visas require sponsorship from a United States employer and the advance filing of complex immigration forms in the United States at one of four USCIS Service Centers or at a US Consulate abroad. The most common Nonimmigrant Visa Petitions include: H-1B Visas (Temporary Professional Visas for persons holding at least a Bachelor's Degree or equivalent); L-1 Visas (for Intra-Company Transferees); E Visas (for Treaty Traders and Investors); F-1 Visas (for Students); B-1/B-2 Visas (for Business Visitors or Tourists); H-3 (Training Fees); J-1 (Exchange Visitor Visas); and K-1 (Fiancée Visas). Each of these visa types has its own specific set of rules and regulations. Some visas may allow an applicant to work in the United States, whereas others may only permit study or training. It is important to know what type of visa you should apply for, and to ascertain whether you qualify for the visa itself. In addition, once permitted visa status in a particular category, you must comply with and understand all regulatory criteria of said visas.

We see the same interplay in the rules of the USG agency most responsible for foreign workers, the DHS-CIS:

Temporary (Nonimmigrant) Workers

Permanent Workers

I-485, Application to Register Permanent Residence or Adjust Status (Green Card)

Application for Employment Authorization

Purpose of Form

Certain aliens who are temporarily in the United States may file this form to request an Employment Authorization Document (EAD). Other aliens who are authorized to work in the United States without restrictions must also use this form to apply for a document that shows such authorization.

Finally, we have an interesting addition to the diplomatic picture via the DoS-FLO (Family Laison Office; Mrs May's job, IIRC), "Bilateral Work Agreements and de facto Work Arrangements":

Bilateral Work Agreements

Foreign Service family members seeking employment on the local economy overseas, whether interested in international business, teaching at a local school, or freelancing, need to be aware of the work permit regulations in their host country. For family members of USG employees assigned to a U.S. Mission overseas, working on the local economy presents opportunities, with associated challenges. One of the challenges is understanding the process for obtaining a work permit.

To increase opportunities for employment in foreign countries for family members of USG employment assigned to an Embassy or Consulate overseas, bilateral work agreements are established through a formal exchange of diplomatic notes between the United States and an individual country. Such agreements help expedite the work permit process for our family members in the host country. And because these agreements are reciprocal, family members of diplomats from that country currently on assignment in the United States can obtain work permits for employment on American soil.

Of particular relevance to the present thread is the "India-US Bilatereal Work Agreement":

KAV 5712, Temp. State Dept. No. 00-62, INDIA - Employment for family members of a diplomatic mission or consular post; Arrangement on employment for family members of a diplomatic mission or consular post. Signed at New Delhi April 10, 2000. Entered into force April 10, 2000.

I conclude from all of the above that the "work permit process" (the term used by DoS-FLO above) does go by a number of different names; but, in substance, it amounts to the receiving state saying we will "permit" you to be employed within our jurisdiction if you agree to abide by all of our laws and regulations that are implicated by that permission.

- to be cont. -

 

[JMM99]

What does "work permit" mean under Article 47, VCCR ? - Part 3

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We now turn to what legislative history we have of Article 47. Simply based on what we have already seen, the drafters were faced with a broad range of choices in the extent of the exemption they could grant from the receiving state's labor laws:

A. An exemption limited to a particular "something" expressly called a "work permit", without concern about the consequential legal regime imposing laws and regulations by the receiving state over conditions of employment and wages and hours of consular staff, including private staff; up to and including

B. An exemption broadened to focus on the legal regime imposing laws and regulations by the receiving state over conditions of employment and wages and hours of consular staff, including private staff; with less concern about what the specific documents might be named.

The UN Legislative History is found at United Nations Conference on Consular Relations Vienna (4 March - 22 April 1963), Volume II: Annexes, Vienna Convention on Consular Relations, Final Act, Optional Protocols & Resolutions.

The key documents start with the "Draft articles on consular relations adopted by the International Law Commission at its thirteenth session":

Article 46 - Exemption from obligations in the matter of registration of aliens and residence and work permits

1. Members of the consulate, members of their families forming part of their households and their private staff shall be exempt from all obligations under the laws and regulations of the receiving State in regard to the registration of aliens and residence permits.

2. The persons referred to in paragraph 1 of this article shall be exempt from any obligations in regard to work permits imposed either on employers or on employees by the laws and regulations of the receiving State concerning the employment of foreign labour.

From the Commentary:

(3) The extension of the said exemption to private staff is justified on practical grounds. It would in fact be difficult to require a member of the consulate who brings a member of his private staff with him from abroad to comply with the obligations in question in respect of a person belonging to his household, if he and the members of his family are themselves exempt from those obligations.

(4) The exemption from the obligations in the matter of work permits which is provided for in paragraph 2 applies only to cases where the members of a consulate wish to employ in their service a person who has the nationality of the sending State or of a third State. In some countries the legislation concerning the employment of foreign labour requires the employer or the employee to obtain a work permit. The purpose of paragraph 2 of this article is to exempt members of the consulate and members of the private staff from the obligations which the law of the receiving State might impose on them in such a case.

(5) The appointment of the consular staff to a consulate in the receiving State is governed by article 19 of the present draft. The exemption laid down in paragraph 2 cannot therefore in any case apply to the employment of these persons in the consulate. For this purpose no work permit may be demanded.

(6) By its very nature the exemption can apply to aliens only, since only they could be contemplated by legislation of the receiving State concerning the registration of aliens, and residence and work permits. The exemption in question can accordingly have no application to members of the consulate or to members of their family who are nationals of the receiving State.

The initial, combined Article 46 was then split into Articles 46 and 46A by the "Text prepared by the Drafting Committee in accordance with the decisions of the First and Second Committees":

Article 46 - Exemption from registration of aliens and residence permits

1. Consular officers and consular employees and members of their families forming part of their households shall be exempt from all obligations under the laws and regulations of the receiving State in regard to the registration of aliens and residence permits.

2. The provisions of paragraph 1 of this article shall not, however, apply to any consular employee who is not a permanent employee of the sending State or who carries on any private gainful occupation in the receiving State or to any member of the family of any such employee.

Article 46A - Exemption from work permits

1. Members of the consular post shall, with respect to services rendered for the sending State, be exempt from any obligations in regard to work permits imposed by the laws and regulations of the receiving State concerning the employment of foreign labour.

2. Members of the private staff of consular officers and of consular employees shall, if they do not carry on any other gainful occupation in the receiving State, be exempt from the obligations referred to in paragraph 1 of this article.

Article 46A was explained (to a limited extent) in the "Report of the Second Committee":

Article 46A - Exemption from obligations in the matter of work permits

159. Article 46A was originally paragraph 2 of article 46 of the International Law Commission's text (see above, paragraph 157).

160. Amendments to article 46A were submitted by the Netherlands, France, Finland, Switzerland, Belgium and jointly by Greece, New Zealand and the United Kingdom (A/CONF.25/C.2/L.198, L.199, L.203, L.204. L.205 and L.206 respectively).

161. France and Belgium accepted oral revisions to their amendments (A/CONF.25/C.2/L.199 and L.2O5 respectively). The revision consisted in the addition of the word " those " before " consular employees " in the French amendment. The Belgian amendment, as revised, read as follows: after the words " private staff " add the words " if they do not exercise any other private gainful occupation outside the consulate ".

162. At its thirty-second meeting, the Committee voted as follows :

(a) By a roll-call vote of 26 votes to 23, with 22 abstentions, it rejected the joint amendment by Greece, New Zealand and the United Kingdom (A/CONF.25/C.2/L.206).

(b) By 31 votes to 12, with 29 abstentions, it rejected the amendment of Finland (A/CONF.25/C.2/L.203).

(c) By 28 votes to 21, with 22 abstentions, it rejected the amendment of Switzerland (A/CONF.25/C.2/L.204).

(d) By 38 votes to 9, with 23 abstentions, it adopted the amendment of France, as orally revised.

(e) By 66 votes to none, with 5 abstentions, it adopted the amendment of Belgium (A/CONF.25/C.2/L.205).

163. By 61 votes to 2, with 7 abstentions, the Committee adopted the text of article 46A, as a whole, as amended.

Article 46A became Article 47 in the renumbering of the Vienna Convention on Consular Relations:

Article 47 - Exemption from work permits

1. Members of the consular post shall, with respect to services rendered for the sending State, be exempt from any obligations in regard to work pennits imposed by the laws and regulations of the receiving State concerning the employment of foreign labour.

2. Members of the private staff of consular officers and of consular employees shall, if they do not carry on any other gainful occupation in the receiving State, be exempt from the obligations referred to in paragraph 1 of this article.

Although the legislative history is not decisive, my opinion is that the drafters sought to exempt the private staffs of consular officers and of consular employees from the broader legal obligations of the receiving state which would be implicated upon issuance of a "work permit". I find it difficult to see where this passage from the Commentary could mean anything else:

In some countries the legislation concerning the employment of foreign labour requires the employer or the employee to obtain a work permit. The purpose of paragraph 2 of this article is to exempt members of the consulate and members of the private staff from the obligations which the law of the receiving State might impose on them in such a case.

Since I view the term "work permit" as being very generic (e.g., an employment visa is a type of "work permit" IMO), an A-3 visa (requiring a specified employment contract and implicating a goodly amount of "fair labor standards" legislation) should be considered a "work permit" under VCCR, Article 47.

We will next look at the VCCR, Article 47 cases (e.g., Swarna and Wokuri), which reach a contrary result from what a close reading of Article 47 would seemingly require. However, those cases must be read not only in light of Article 47, but also in light of whether the VCCR was self-executing in the courts' countries and whether those countries had later legislation contrary to Article 47.

Finally, we will consider how global powers, moved by something of a nationalistic spirit and concerned with keeping their sovereignty intact in an "era of globalization", have approached the VCCR (and similar treaties in general), and how they might approach Article 47 in particular.

But, let's take a break first before confronting the legalisms.

Regards

Mike

 

[happy]

India, US break ice but differences persist - Hindustan Times

The first high-level visit of a US official — Assistant Secretary of State for South and Central Asian Affairs Nisha Biswal — to India last week after the Devyani Khobragade episode restored a degree of diplomatic normalcy in the 'strategic partnership'. However, the distance between the two sides, on the bilateral front as well as regional issues, continues to persist.

On her first visit to India after her appointment, Biswal is understood to be pleased at the reception she got in South Block, meeting foreign secretary Sujatha Singh as well as a range of joint-secretaries.

But the gaps, according to diplomatic sources, were obvious.

On the region, the US-India gulf has been most visible on Bangladesh. India supported the January elections, which was pushed forward by the Sheikh Hasina-led Awami League, and boycotted by the Begum Khaleda Zia-led Bangladesh Nationalist Party (BNP), which is in alliance with the banned Jamaat-e-Islami. Delhi sees it as a battle of secular moderates and Islamists, and feels appeasing the latter would be counter-productive.

Washington had strongly argued that the polls lacked legitimacy. The US camp says that they share India's concerns about the Jamaat, but pushing the BNP-Jamaat out of the mainstream political process is no solution. In Dhaka, the general perception is of the two countries batting for the two opposing ladies, which both sides agree is not very helpful. Washington sees an opening provided by local body elections to create a more inclusive polity.

On Sri Lanka, there is an overlap in analysis. Both Delhi and Washington agree that Colombo has not done enough to reach out to Tamils, that this may well lay grounds for further radicalisation, and the consolidation of one-family rule is a danger to democracy.

But while the US has aggressively argued for holding the Rajpakse regime accountable for war crimes, Delhi is in a bind because of different compulsions.

While demands from Tamil Nadu push Delhi to take a strong line, it worries the security establishment that China is filling in the vacuum and they are losing the little leverage they have. With an upcoming vote at the UN Human Rights Council in Geneva, US would like India to vote against Sri Lanka, while Delhi is yet to make up its mind.

At the root of the differences, however, is the trust deficit on the bilateral relationship. India strongly feels that the White House has been both inconsistent and indifferent to Delhi's interests, while US feels it has not got the returns it expected after the nuclear deal and there is no big new idea.
PM Manmohan Singh invested enormously in the relationship in his first term, but as he completes his tenure, it is up to his successor and President Obama to find the right balance once again, especially on regional issues.

 

[ladder]

Devyani Khobragade's help, husband cite 'differences', file for divorce

Richard said he was breaking his family's silence as he was hurt by the way the case had been portrayed in the media.

Devyani Khobragade's help, husband cite 'differences', file for divorce | The Indian Express | Page 99

 

[happy]

Khobragade wins indictment's dismissal | Reuters

(Reuters) - Devyani Khobragade, charged in New York with visa fraud and making false statements about a domestic worker she employed has won dismissal of a federal indictment, ending a chapter in an dispute that frayed U.S.-Indian diplomatic relations.

Khobragade, who was India's deputy consul-general in New York, had diplomatic immunity when she sought on January 9 to dismiss the indictment, and thus could not be prosecuted, U.S. District Judge Shira Scheindlin in Manhattan ruled on Wednesday.

Prosecutors accused Khobragade of making Sangeeta Richard, her housekeeper and nanny, work 100-hour weeks at a salary of just over $1 an hour, far below the legal minimum U.S. wage of $7.25 an hour.

They argued that the indictment should stand because Khobragade did not have diplomatic immunity either when she was arrested, or now given that she has left the country.

Scheindlin said, however, Khobragade had that immunity on January 9 when the indictment was issued, having the day before been named a counselor to India's mission to the United Nations.

"Even if Khobragade had no immunity at the time of her arrest and has none now, her acquisition of immunity during the pendency of proceedings mandates dismissal." she wrote. "The government may not proceed on an indictment obtained when Khobragade was immune from the jurisdiction of the court," Scheindlin wrote.

She also lifted Khobragade's bail and said open arrest warrants based on the indictment must be thrown out.

Khobragade, 39 at the time of her arrest on December 12, is now working for foreign affairs ministry in Delhi, having left the United States in January, said her U.S. lawyer, Daniel Arshack.

Federal prosecutors have not said whether they will seek a new indictment.

"As the court indicated in its decision, and as Devyani Khobragade has conceded, there is currently no bar to a new indictment against her for her alleged criminal conduct, and we intend to proceed accordingly," said James Margolin, a spokesman for U.S. Attorney Preet Bharara in Manhattan.

The U.S. Department of State was not immediately available for comment.

Khobragade's arrest and a subsequent strip-search provoked an outcry in India, setting off reprisals against U.S. diplomats and the removal of some security barriers near the U.S. embassy there.

It also led to the postponement of trips by U.S. officials and business executives to India, with which the United States was working to strengthen ties.

Some Indians thought the case reflected U.S. arrogance and that its relations with India could be taken for granted.

Arshack welcomed the judge's decision.

"The law requires that any prosecution brought against an individual with diplomatic immunity must be dismissed," he said. "We're pleased and heartened that the rule of law has prevailed."

The case is U.S. v. Khobragade, U.S. District Court, Southern District of New York, No. 14-cr-00008.

Finally !!! What about all the harassment meted out already ??

 

[pmaitra]

Thanks for posting it @happy. You make me happy.

 

[pmaitra]

Khobragade wins indictment's dismissal | Reuters



Finally !!! What about all the harassment meted out already ??

There is an avenue to file for a civil case on wrongful arrest.

@mattster, here you go, your "rockstar" attorney has shown his prowess. All he can do is harass Republic critics as long as Obama is the President. Once the Republicans come, he will quietly slide back into a hole.

 

[Hari Sud]

An egg on Preet Bharar's face.

 

[asianobserve]

No recognition for the rule of law in America?

Looking at the write up on the decision it appears I'm right on the lack of immunity during the commission of the crime although I was wrong on her immunity at the time of her arrest and indictment. I guess Bharara just have to wait until she is no longer covered by full diplomatic immunity to indict her again since there is no double jeopardy yet.

In th

 

[asianobserve]

In the meantime it seems that Miss Kobhragade can earn a lot of money in the US for damages against the officers who had her arrested.

 

[pmaitra]

No recognition for the rule of law in America?

Looking at the write up on the decision it appears I'm right on the lack of immunity during the commission of the crime although I was wrong on her immunity at the time of her arrest and indictment. I guess Bharara just have to wait until she is no longer covered by full diplomatic immunity to indict her again since there is no double jeopardy yet.

In th

We haven't seen the final documents, and you are not right on anything.

• She was a diplomat at the time of her abduction ("arrest"). We've seen the documents. We won't wait for a US judge to say that.
• She was paying the salary as an act covered under VCCR Article 47. We don't recognize US' right to arbitrate on that. (They never had the right, and now that DK is not in the US, they do not have the power to abduct ("arrest") her again.)

 

[asianobserve]

We haven't seen the final documents, and you are not right on anything.

We'll see about that...

Scheindlin said, however, Khobragade had that immunity on January 9 when the indictment was issued, having the day before been named a counselor to India's mission to the United Nations.

"Even if Khobragade had no immunity at the time of her arrest and has none now, her acquisition of immunity during the pendency of proceedings mandates dismissal." she wrote. "The government may not proceed on an indictment obtained when Khobragade was immune from the jurisdiction of the court," Scheindlin wrote.

In fact, I may be right after all about Khobragade not having immunity at the time of her arrest. Of course the Decision is the definitive answer. I hope it's posted on the net so that it can be analyzed by our resident "legal experts."

In any case, this dismissal does show that America have a good rule of law. Now it's MS. Khobragade's turn to profit from that "rule of law."

 

[pmaitra]

There, corrected that for you:

We'll see about that...



In my belief, I may be right after all about Khobragade not having immunity at the time of her arrest. Of course the Decision is the definitive answer. I hope it's posted on the net so that it can be analyzed by our resident "legal experts."

In my opinion, which may not be a fact, this dismissal does show that America have a good rule of law. Now it's MS. Khobragade's turn to profit from that "rule of law."

 

[asianobserve]

US to Seek New Indictment against Indian Diplomat

NEW YORK — An Indian diplomat whose arrest and strip-search spurred an international flap had the case against her dismissed by a federal judge on Wednesday, but prosecutors suggested they might refile the charges stemming from claims she exploited her housekeeper.

For now, at least, Wednesday's ruling closes the case against Devyani Khobragade on the grounds of diplomatic immunity. The judge found Khobragade had broad immunity from prosecution when she was indicted on charges of fraudulently obtaining a work visa for her housekeeper and lying to the government about the maid's pay.

But the ruling left open the possibility prosecutors could bring a new indictment against her, and they "intend to proceed accordingly," said James Margolin, a spokesman for Manhattan U.S. Attorney Preet Bharara.

xxx

US to seek new indictment against Indian diplomat - The Washington Post

 

[asianobserve]

In my opinion, which may not be a fact, this dismissal does show that America have a good rule of law. Now it's MS. Khobragade's turn to profit from that "rule of law."

Why you don't believe that this ruling illustrates the soundness of the rule of law in America?

 

[sayareakd]

An egg on Preet Bharar's face.

He needs to be send back to India where we can teach him law that too only after strip search.

 

[sayareakd]

In the meantime it seems that Miss Kobhragade can earn a lot of money in the US for damages against the officers who had her arrested.

It is not earning, it will be compensation and damages for illegal detention and illegal treatment given to her.

You have any idea what it means to get arrested in front of your kids. Strip search is different she can cope up it with but the arrest of her in front of her kid will have negative impact on kids tender mind.

 

[asianobserve]

You have any idea what it means to get arrested in front of your kids.

She was not arrested in front of her kids. She was arrested in front of her kids' school. Two different things.

She also was not handcuffed contrary o reports in Indian media.

 

[happy]

We'll see about that...



In fact, I may be right after all about Khobragade not having immunity at the time of her arrest. Of course the Decision is the definitive answer. I hope it's posted on the net so that it can be analyzed by our resident "legal experts."

In any case, this dismissal does show that America have a good rule of law. Now it's MS. Khobragade's turn to profit from that "rule of law."

You haven't learnt any lesson yet. Not only you, the whole "US is Right Always" lobby can see that. Now,

The court also terminated Khobragade's bail conditions and exonerated her bond. And withdrew any warrant of arrest issued against her in connection with the case.

But, the court said, "if the acts charged in the indictment were not 'performed in the exercise of official functions,' then there is currently no bar to a new indictment".

- See more at: US dismisses criminal charges against Devyani Khobragade - Hindustan Times

There is no use beating a dead dog like yourself and PB, though I guess it is far from over for him.

 

[happy]

It is not earning, it will be compensation and damages for illegal detention and illegal treatment given to her.

You have any idea what it means to get arrested in front of your kids. Strip search is different she can cope up it with but the arrest of her in front of her kid will have negative impact on kids tender mind.

Sir, I think you wanted this thread to be closed .

You see sir, we have been right all along.

Small correction, it was not just strip but also cavity search which is very much degrading.

Arrest was humiliating in front of family and cavity search was humiliating one's own pride and self respect.