It’s Khobragade’s mistake

Rajkamal Rao | Updated on December 20, 2013

A complete diplomatic mess - G. Ramakrishna

Khobragade violated the US minimum wage law. If the US has overreacted, so has India.

The arrest and subsequent release of Deputy Consul General Devyani Khobragade has triggered a dramatic turn of events in New Delhi and Washington. Indians, without regard to party affiliation, have stood firm in their unilateral opposition to what happened in New York, bringing to the fore a sense of patriotic unity last seen during the terrorist attacks in Mumbai five years ago. So resolute has the Indian reaction been that the US has finally begun to cave, now calling for a “review of procedures” that resulted in the arrest.

Let’s review the facts as they have been reported thus far. As a senior diplomat, Khobragade was eligible to apply to the US government for a visa to take a personal employee with her when she was assigned to the Indian High Commission in New York. She presumably filed an A-3 non-immigrant visa application for Sangeeta Richard, her domestic help, supporting it with paperwork to show that Sangeeta Richard would receive a fair wage of $9.75 an hour for a 40-hour week.

This wage stipulation is not new to the million or so Indian H-1B visa applicants over the last decade. Veterans will confirm that the prevailing wage section in the Labor Condition Application has to be perfect or there is a risk of the visa being denied.

How Khobragade took such an important declaration to the US government so lightly beats logic. As a senior visa official herself, she ought to have appreciated that supporting documents, contracts and affidavits mean what they say. It appears now that she not only disregarded her contract to pay her domestic help the $9.75/hour but also negotiated a separate, private agreement which paid her only Rs 30,000 a month — about $3.31 an hour assuming a 40-hour week. Domestic helpers in the US rarely work just 40 hours a week, so the real wage rate was probably under $3 an hour.

Serious business

The word “intent” is a powerful term in American law. Khobragade’s intent in this case appears to have been designed to deceive: that is, to file whatever paperwork that was necessary to be granted a visa with the wilful intent to not honour it after the visa was issued.

This is serious business. Just ask Infosys. In October, the company agreed to pay $34 million in a civil agreement to settle the largest “systemic visa fraud and abuse” case in US history.

News reports have it that the employee has been absconding since June, just eight months after entering the US. Disagreements between employers and domestic help are common in India; they result in frequent quits and rehires, but consider the state of mind of a domestic employee in a foreign country working for a powerful officer in the Indian Foreign Service. What if she genuinely felt she was being mistreated? Who could she turn to for help?

We are only speculating at this stage but not finding a meaningful way to escalate her issues, and probably inspired by acquaintances who may have encouraged her to seek asylum from persecution and a US Green Card, Sangeeta Richard probably sought refuge with another family in the US where she is living illegally.

Khobragade clearly took steps to tighten the noose around her employee. It is said that she moved the Delhi courts to seek an injunction against Sangeeta Richard to not file a complaint against her in a foreign land — as stipulated in her employment agreement. So, Khobgrade did believe that contractual language mattered — except when it applied to her. Next, she used her power as a visa officer and revoked her employee’s passport, further pushing her into the back alleys of the US.

Lopsided coverage

This is sad. What is really unfortunate is that the story of the true victim — Sangeeta Richard — is not being covered with the same energy as the larger story of the victimisation of Khobragade following her arrest.

There is no question that the treatment of Devyani Khobragade was insulting and unwarranted. National Security Advisor Shivshanker Menon was probably a little dramatic when he called it “despicable and barbaric”, terms reserved for the treatment of women by the Taliban. Never mind that airline passengers in the US and India are routinely pulled aside for pat-downs merely on grounds of suspicion and not because they violated any laws.

For those who claim that Khobragade is being selected for unfair treatment because she is Indian, an examination of recent US history would be worthwhile.

In 1993, Zoë Baird, an outstanding candidate for appointment as President Bill Clinton’s attorney general, withdrew her nomination because she was found to have hired a nanny illegally and had not paid sufficient social security taxes as demanded by law.

Two of President Bush’s nominees had to withdraw due to nanny issues — Linda Chavez (as Labor Secretary, in 2001) and Bernard Kerik, New York City’s former top cop (homeland security, 2004).

In the US, there is an expectation that public officials should be compliant with the laws they are supposed to uphold. Millions of Indians in the US are treated fairly by the police every day. To draw a racist conclusion in this case would be premature and counter-productive at a time when both countries need each other.

The US is on the verge of considering massive changes to immigration law that would have serious implications for Indian students, employees and business.

The US needs India to maintain the geopolitical balance after it exits Afghanistan and foreign direct investment is vital to re-energising India’s economy.

And it’s time all sides called a truce.

(Rajkamal Rao is Managing Director of Rao Advisors LLC and has written a book on the new H-1B visa proposals, published by Amazon.)

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Published on December 20, 2013
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