– Domani Spero
The United States Attorney for the Southern District of New York, announced the arrest of Devyani Khobragade on charges that “Khobragade allegedly caused a materially false and fraudulent document to be presented, and materially false and fraudulent statements to be made, to the United States Department of State in support of a visa application for an Indian national employed as a babysitter and housekeeper at Khobragade’s home in New York, New York.” Ms. Khobragade 39, is currently employed as the Deputy Consul General for Political, Economic, Commercial and Women’s Affairs at the Consulate General of India in New York, New York. According to the announcement, she was charged with one count of visa fraud and one count of making false statements, which carry maximum sentences of ten years and five years in prison, respectively.
One thing notable about this announcement: “Manhattan U.S. Attorney Bharara thanked the Department of Justice’s Human Trafficking Prosecution Unit for playing an integral role in this investigation, and for providing ongoing support in this prosecution.”
The announcement made no mention of what role, if any, the State Department’s Diplomatic Security or Consular Affairs bureau played in this case. However, the statement in the complaint is made by the lead investigator of this case, DSS Agent Mark J. Smith of the Bureau of Diplomatic Security.
Below is part of the December 12 announcement via USDOJ | Manhattan U.S. Attorney Announces Arrest Of Indian Consular Officer For Visa Fraud And False Statements In Connection With Household Employee’s Visa Application
Manhattan U.S. Attorney Preet Bharara said: “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. The false statements and fraud alleged to have occurred here were designed to circumvent those 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.”
According to the allegations in the criminal complaint unsealed today in Manhattan federal court:
Diplomats and consular officers may obtain A-3 visas for their personal employees, domestic workers, and servants if they meet the requirements set out in 9 Foreign Affairs Manual (“FAM”) 41.22. As part of the application process, an interview at the embassy or consulate is required. Proof is required that the applicant will receive a fair wage, sufficient to support himself financially, comparable to that being offered in the area of employment in the U.S. To apply for an A-3 visa, the visa applicant must submit an employment contract signed by both the employer and the employee which must include, among other things, a description of duties, hours of work, the hourly wage – which must be the greater of the minimum wage under U.S. federal and state law, or the prevailing wage – for all working hours, overtime work, and payment.
DEVYANI KHOBRAGADE prepared and electronically submitted an application for an A-3 visa (the “Visa Application”) through the website for the U.S. Department of State’s Consular Electronic Application Center for an Indian national (“Witness-1”), who was to be the personal employee of KHOBRAGADE beginning in November 2012 at an address in New York, New York. The Visa Application stated that Witness-1 was to be paid $4,500 per month in U.S. dollars. KHOBRAGADE and Witness-1 also signed an employment contract (the “First Employment Contract”) for Witness-1 to bring to Witness-1’s interview at the U.S. Embassy in India in connection with the Visa Application, which Witness-1 did at KHOBRAGADE’s direction. The First Employment Contract stated, among other things, that KHOBRAGADE would pay Witness-1 the prevailing or minimum wage, whichever is greater, resulting in an hourly salary of $9.75.
KHOBRAGADE knew that the First Employment Contract that KHOBRAGADE caused Witness-1 to submit to the U.S. State Department in connection with Witness-1’s Visa Application contained materially false and fraudulent statements about, among other things, Witness-1’s hourly wage and hours worked. Prior to the signing of the First Employment Contract, KHOBRAGADE and Witness-1 had agreed that KHOBRAGADE would pay 30,000 rupees per month, which at the time was equivalent to $573.07 U.S. At 40 hours per week, with approximately 4.3 weeks in a month, $573.07 equates to a rate of $3.31 per hour. However, KHOBRAGADE instructed Witness-1 to say that she would be paid $9.75 per hour, and not to say anything about being paid 30,000 rupees per month. KHOBRAGADE also instructed Witness-1 to say that Witness-1 would work 40 hours per week, and that Witness-1’s duty hours would be 7 a.m. to 12:30 p.m., and 6:30 p.m. to 8:30 p.m. She told Witness-1 that the First Employment Contract was a formality to get the visa.
After the First Employment Contract was submitted to the United States Department of State, KHOBRAGADE told Witness-1 that Witness-1 needed to sign another employment contract (the “Second Employment Contract”). KHOBRAGADE and Witness-1 signed the Second Employment Contract, which provided that Witness-1’s maximum salary per month including overtime allowance will not exceed 30,000 rupees per month. The Second Employment Contract does not contain any provision about the normal number of working hours per week or month.
Witness-1 worked for KHOBRAGADE as a household employee in New York, New York, from approximately November 2012 through approximately June 2013. Notwithstanding the terms of the First Employment Contract, Witness-1 worked far more than 40 hours per week, and Witness-1 was paid less than $9.75 per hour by KHOBRAGADE. In fact, notwithstanding the terms of the oral agreement between KHOBRAGADE and Witness-1 and the terms of the Second Employment Contract, Witness-1 was paid less than 30,000 rupees per month, or $3.31 per hour.
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KHOBRAGADE, 39, was charged with one count of visa fraud and one count of making false statements, which carry maximum sentences of ten years and five years in prison, respectively. She is expected to appear this afternoon before U.S. Magistrate Judge Debra Freeman.
Manhattan U.S. Attorney Bharara thanked the Department of Justice’s Human Trafficking Prosecution Unit for playing an integral role in this investigation, and for providing ongoing support in this prosecution.
The Office’s Organized Crime Unit is handling the case. Assistant U.S. Attorneys Amanda Kramer and Kristy Greenberg are in charge of the prosecution.
The charges contained in the complaint are merely an accusation, and the defendant is presumed innocent unless and until proven guilty.
The Embassy of India in Washington, D.C., also released the following statement:
We were informed that Deputy Consul General of India in New York, Dr. Devyani Khobragade, was taken into custody by law enforcement authorities in New York in the morning of December 12, 2013 while she was dropping her daughter at school. Dr. Khobragade was later released that same evening.
Action was apparently taken against Dr Khobragade on the basis of allegations raised by the officer’s former India-based domestic assistant, Ms Sangeeta Richard, who has been absconding since June this year. In this context the Delhi High Court had issued an-interim injunction in September to restrain Ms Richard from instituting any actions or proceedings against Dr Khobragade outside India on the terms or conditions of her employment.
The US Government had subsequently been requested to locate Ms 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 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.
NDTV is reporting that India has summoned US Ambassador Nancy Powell to “lodge a strong protest against what it has called the “unacceptable treatment” of its high-ranking diplomat Devyani Khobragade, who was arrested and handcuffed in public in New York on Thursday for an alleged visa fraud.”
The Times of India reports the reaction from India’s ministry of external affairs in New Delhi with a spokesperson saying, “We are shocked and appalled at the manner in which she has been humiliated by the US authorities. We have taken it up forcefully with the US government through our embassy in Washington. We are also reiterating, in no uncertain terms, to US embassy here that this kind of treatment to one of our diplomats is absolutely unacceptable.”
This is not the first allegation involving a foreign household worker in the United States and a foreign diplomat assigned here. In the Washington Diplomat February 2010 issue, it was alleged that “the State Department has been uninterested in dealing with these cases.”
This is also not the first allegation involving the Indian Mission in the United States. In June 2011, the Consul General (CG) of India in New York, Prabhu Dayal was “slapped with forced labour charges after his 45-year-old domestic help Santosh Bhardwaj accused him of treating her like a “slave.” ( see Back in the Spotlight: Alleged Abuse of Household Workers by Foreign Diplomats with Immunity). According to thehindu.com, in 2012 a New York City Magistrate Judge also ordered Neena Malhotra, an Indian diplomat and her husband Jogesh to pay nearly $1.5 million reportedly arising from their employment of an Indian girl, Shanti Gurung who alleged “barbaric treatment” while she was employed as their domestic worker (see Gurung v. Mahotra).
For additional reading on this subject, see GAO: July 2008 | U.S. Government’s Efforts to Address Alleged Abuse of Household Workers by Foreign Diplomats with Immunity Could Be Strengthened and GIHR: June 2011 | Domestic Workers in Diplomats’ Households Rights Violations and Access to Justice in the Context of Diplomatic Immunity.
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