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HindustanTimes Fri,25 Jul 2014

India

Dec 13: Devyani arrested in US for visa fraud
Yashwant Raj, Hindustan Times
Washington, December 13, 2013
First Published: 01:32 IST(13/12/2013)
Last Updated: 04:10 IST(10/1/2014)
A file photo of Indian diplomat in New York, Devyani Khobragade. (chevening.org)

A senior diplomat working with India's New York consulate was arrested on Thursday for alleged visa fraud in hiring a domestic help and giving false information but was released later on a $250,000-bond after she pleaded not guilty in a court.

Devyani Khobragade, an Indian Foreign Service officer serving as deputy consul general and the acting consul general at the Consulate General of India, was arrested soon after she dropped her daughter to school.

The diplomat has been charged with submitting false documents and information while applying for a visa for a "babysitter and housekeeper" she brought from India, according to authorities.

They carry maximum sentences of 10 years and five years in prison, respectively.

"The false statements and fraud alleged to have occurred here were designed to circumvent (usual US) protections so that a visa would issue for a domestic worker who was promised far less than a fair wage. This type of fraud on the United States and exploitation of an individual will not be tolerated," said Preet Bharara, Indian-born US attorney for Southern District of New York.

"Foreign nationals brought to the United States to serve as domestic workers are entitled to the same protections against exploitation as those afforded to United States citizens," he added.

Eminent Indian-American lawyer Ravi Batra said Bharara has "acted, as always, to defend the United States, while acknowledging that Constitutional presumptive innocence belongs to the accused."

A photo of India's deputy consul general in New York Devyani Khobragade. (Via Twitter)

"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.

"Foreign nations who pay their workers at or near US labour 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," Batra said.

This is the third such case of an Indian diplomat being accused by a domestic help of mistreatment in recent years.

Yet the practice of underpaying helps brought from home is rampant among Indian expats – diplomats, world bankers and even private sector executives – in the US.

India conveys strong concern
Khobragade, mother of two daughters and a Chevening scholar, was taken into custody and produced before judge Debra Freeman late in the afternoon for an arraignment hearing.

The judge read out Khobragade her rights and the charges against her. Khobragade did not speak during the hearing except to say that she agrees with the terms and conditions of the bail. The next hearing has been set for January 13.

Wearing a purple sweater and dress, Khobragade appeared composed during the hearing but looked pale and stressed.

Khobragade submitted her diplomatic passport to the court. Freeman ordered that Khobragade cannot leave the country but can travel within the US only if she gives advance notification of her travels.

Her lawyer told the judge that his client is "not subject to prosecution" as she "enjoys immunity as a consulate officer". Her lawyer will be filing claims of diplomatic immunity in the case and relevant papers in court.

Her diplomatic immunity, said a complaint filed by the authorities in a New York court, extended only "to those acts undertaken in her official capacity".

Suneeta Dewan, an attorney present at the hearing, said Khorbragade had employed the domestic help in her personal capacity and diplomatic immunity may not apply in the case.

The Indian embassy in Washington released a statement saying it had "immediately conveyed its strong concern" to the US Government on action taken against Khobragade.

READ: Diplomat’s father cries foul, asks America to apologise

"The US side have been urged to resolve the matter with due sensitivity, taking into account... the diplomatic status of the officer concerned," the embassy said in the statement.

The embassy said it had been informed that Khobragade was taken into custody by law enforcement authorities.

It added that the action was apparently taken against Khobragade on the basis of allegations raised by the officer's former India-based domestic assistant, Sangeeta Richard, who is absconding since June this year.

In this context the Delhi high court had issued an-interim injunction in September to restrain Richard from instituting any actions or proceedings against Khobragade outside India on the terms or conditions of her employment.

"The US government had subsequently been requested to locate Richard and facilitate the service of an arrest warrant, issued by the metropolitan magistrate of the South District court in New Delhi under Sections 387, 420 and 120B of the Indian Penal Code," the embassy said, adding that the existing court case in India against Richard has already been brought to the attention of the US government.

But the case as made out by Bharara's office was different was traced back to sometime in early 2012.

Case against the diplomat
An 11-page criminal complaint unsealed in Manhattan federal court alleged Khobragade had made false statements about the salary and employment terms of the domestic help she had got from India. The complaint, however, did not name Richard.

Diplomats and consular officers can get domestic workers, personal employees and servants on A-3 visas. The diplomats have to submit proof that the helper will receive a fair wage, sufficient to support himself financially, comparable to that being offered in the area of employment in the US.

The complaint alleged that Khobragade prepared and electronically submitted an application for an A-3 visa for the Indian national who was to be her personal employee beginning in November 2012 in New York.

The visa application stated that the domestic help would to be paid $4,500 per month. Khobragade and the domestic help also signed an employment contract which stated that she would pay her the prevailing or minimum wage, whichever is greater, resulting in an hourly salary of $9.75.

The complaint said that Khobragade knew that the employment contract that she caused her domestic help to submit to the US state department contained "materially false and fraudulent statements about hourly wage and hours worked."

Prior to the signing of the contract, it was agreed between Khobragade and her domestic help that she would be paid Rs. 30,000 per month. At 40 hours per week, it was equivalent to $573.07 monthly or $3.31 per hour.

However, Khobragade instructed the help to say that she would be paid $9.75 per hour, and not to say anything about being paid Rs. 30,000 per month. Khobragade also instructed the help to say that she would work 40 hours per week.

After the employment contract was submitted to the US department of state, Khobragade allegedly told her domestic help that she needed to sign another employment contract which provided that the domestic help's maximum salary per month including overtime allowance will not exceed Rs. 30,000 per month. The second employment contract did not contain any provision about the normal number of working hours per week.

The domestic help worked for Khobragade as a household employee from November 2012 through June 2013. The complaint said that regardless of the terms of the first employment contract, she worked far more than 40 hours per week and was paid less than $9.75 per hour by Khobragade.

"This type of fraud in the United States and exploitation of an individual will not be tolerated," said Bharara, who has made a reputation busting Wall Street frauds.

"Very unfortunate"
As she walked out of the courtroom after the hearing, Khobragade smiled and hugged a couple of her friends who had come for the hearing.

She told PTI that she cannot talk to the press since the matter is "subjudice" but said that she is doing fine. She was flanked by her attorney Daniel Arshack and her colleagues from the consulate who escorted her outside the court.

Dewan, a friend of Khorbragade who was among the first people she had called following the arrest, said it was "very unfortunate" that she was arrested.

"She is a very fine person, accomplished and hardworking."

Khobragade joined the consulate last year and was previously posted in Germany, Italy and Pakistan.

The arrest sent shock wave among the Indian diplomatic corps and some officers said it is unprecedented and inappropriate for a diplomat to be arrested.

(With inputs from PTI)


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