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Investigative Report: Enterprise Application Guest Worker Fraud in America

June 18th, 2012 by
H1-B Visa Fraud

Guest Worker Fraud

Last week’s post on why Guest Worker IT Firms Crash Then Burn When Investigating Visa Fraud provided a little background on guest worker fraud being investigated now. Much of the spark to light this match was the whistle-blowing activity of a Jack Palmer about Infosys. However Infosys should NOT be considered an isolated incident.

As Jack Palmer’s case demonstrates there are options for consultants who are tired of the fraud. What Mr. Palmer’s conviction and dedication indicates is that you must be willing to stand up and be counted. No one said being a whistle-blower would be easy, but there are protections. Another interesting feature of Mr. Palmer’s case involves the various government agencies and channels conducting several of the ongoing investigations.

United States Senator Chuck Grassley from Iowa has taken a strong interest in meaningful visa reform and ending the fraud for some time. As a regular crusader against H1-B visa fraud he has often introduced legislation and taken a stand against fraudulent practices. As one example in a February 10, 2012 Grassley Weekly Video Address: H-1B Reform was the topic.

While some Guest Worker IT Firms Crash Then Burn When Investigating Visa Fraud there are still too many customers who are ripped off while their SAP or other enterprise projects crash and burn. Even though there are Hidden SAP Offshore Development Costs, those costs and the negative consequences go much higher when dealing with fake experience from onshore resources. There is a measure of customer trust that workers who are on site, employed by system integrators, had to go through some type of screening and background verifications for experience. Enterprise application customers almost expect that the hiring practices at some of these IT firms mirror their own internal processes. NOTHING could be further from the truth. See this excerpt from Mr. Palmer’s insight (noted last week in Guest Worker IT Firms Crash Then Burn When Investigating Visa Fraud):

When asked if all the people had some special expertise that couldn’t be found in the U.S., Palmer said, “Absolutely not. Not even close. Many of them [are] what we call freshers. People that would just come over, whoever they could get to come over. Whoever got accepted for a visa.”

Many of the people brought in, in fact, didn’t know what they were doing at all, Palmer said. “There was not a project or program that I was involved in that we did not remove somebody because they had no knowledge of what they were doing,” he said.

As noted by Mr. Palmer’s attorney Ken Mendelsohn, “Senator Grassley has taken an interest in this situation and actually wrote Secretary of State Hillary Clinton and Homeland Security Secretary Janet Napoliatano.” The letter and responses are attached here and are interesting from the perspective that there are still MASSIVE numbers of B-1 and other visas being issued (primarily to Indian IT firms).

Letter from Grassley

Response from Secretary of State Hillary Clinton

Conclusion on Helping to Clean Up VISA FRAUD in the Enterprise Application Space

Sadly for those with real experience, whether foreign born or citizen, it is not just the system integrators who are the problem–, often some of the recruiting firms help to continue perpetuating the visa fraud. I’ve heard of many cases where unscrupulous recruiters will provide candidates with resumes the recruiters rewrote to add “experience” and background “employment” that the individual does not have.

Mr. Palmer’s case together with several criminal investigations are underway (with still more to come) but you can do your part to stop the fraud in the visa program by reporting any incidents you encounter.

If the fraud were stopped I personally wouldn’t care if the caps on visas related to high tech were significantly increased or eliminated. Unfortunately I don’t think a real cleanup will happen until some people end up in jail.

As I have long said, I personally have no issue competing with the very best there is anywhere in the world but it gets old cleaning up and working around so many messes left behind in the SAP world. I’m not interested in that kind of “job security.” I want to make the highest and best use of my skills by helping businesses gain real benefit from their SAP projects.

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References and Additional Information on Reporting Suspected Visa Fraud and Abuse

United States Code (USC): 18 USC § 1546 (a) “[Any visa, permit, or other document] procured by means of any false claim or statement, or to have been otherwise procured by fraud or unlawfully obtained…” provides for criminal penalties and fines.

Contact U.S. Senator Chuck Grassley to tell your story or to encourage further investigations or prosecutions: http://www.grassley.senate.gov/contact.cfm

The Criminal investigations into Infosys and other high tech worker visa fraud issues is being partially handled by the U.S. Attorney’s Office in the Eastern District of Texas. If you have information about Infosys or other system integrators committing visa fraud reach out to them. You can contact them here: http://www.justice.gov/usao/txe/contact.html

U.S. Immigration and Customs Enforcement accepts tips and information related to visa fraud, feel free to report any suspected incidents here: http://www.ice.gov/exec/forms/hsi-tips/tips.asp

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Being an Expert Witness in an SAP System Integrator or Consultant Fraud Trial

May 29th, 2012 by
SAP Expert Witness

SAP Expert Witness

Those who have followed this site for any period of time are probably aware that one of my passions is to see the whole business application space “cleaned up.”

A recent group of comments and private messages I have received about consultants who knowingly commit fraud really got me aggravated.  I’ve actually received e-mails through my site from these “freshers” who would brag about having their fake resume ready and they were excited about actually conning their first customer.  Enough already, I decided to do a series on helping expert witnesses through the litigation process against some of these unscrupulous tactics.  

Although I am NOT, NOT, NOT, a fan of litigation I believe we have reached an unfortunate time in the business application consulting space where something must be done.  There are too many fraudulent consultants, too many staffing firms which facilitate and in some cases participate in this fraud, and too many system integrators who take advantage of clients who do not fully appreciate how SAP projects work.  Please understand this is not legal advice, for that you must consult an attorney. 

You Just Got Called to be an Expert Witness in an SAP, Oracle, or other Business Application Lawsuit

Being called upon or contacted to be an expert witness in a court case for your field of expertise can be an exciting and frightening proposition.  Over the years I’ve been contacted by lawyers and expert witness brokers to do exactly that.  I’ve never taken them up on the offer but have taken the time to understand the process.  If you want to be an “expert” witness in some multi-million dollar litigation about a failed SAP, Oracle, or other business software implementation you will want to prepare for…

What Can You Expect?

First, be prepared to have your writings, resume, personal life, and your past carefully scrutinized in tremendous detail.  Anything you’ve written online, in publications, or even in social media spaces is fair game for legal evaluation over your judgment as an expert witness.  Consider carefully whether you want past events that might be “colored” to affect your professional judgment raised in a court of law (and no, that is NOT why I haven’t accepted any expert witness assignments ;) . 

What are the Legal Requirements for Expert Witness Testimony

First of all expert testimony in the United States is generally governed by Federal Rule of Evidence 702.  That rule governs “technical or other specialized” testimony from experts and virtually every U.S. State has either the same rule or some equivalent.  However, each state can have different ideas of what that Rule actually means in their own state level courts so it is really important to understand what state a case is in, or whether it is in federal court.  In legal terms this is related to “venue” or what court the case will be tried in.  Is it is state or federal venue.

Standards for Admitting Expert Testimony

Two key U.S. Supreme Court cases govern the admissibility of expert testimony.  The two cases which either open the door, or close it, for expert testimony are often referred to as “Frye” and “Daubert.”  To be an expert witness you really should be familiar with these two cases and what they mean to you if you consider offering expert testimony. 

These legal cases use two different standards which are in use to some extent throughout the United States.  The Frye case comes from a Washington D.C. Circuit court case with the case style (or caption) of Frye v. US, 293 F. 1013, 34 A.L.R. 145 (D.C. Cir 1923).  That case established a “wide acceptance” standard meaning that something should not be admitted into evidence unless the subject matter being testified about covered something that was widely accepted.   This usually (although not always) meant that there was lots of published material that had been peer reviewed or scrutinized in other ways.   An expert under Frye addresses issues almost exclusively from the “wide acceptance” standpoint.  Keep in mind that the “wide acceptance” standard may have allowed the “flat earth” society to have prevailed in court in the Middle Ages.

As both science and technology continued to mature at a faster pace additional clarification was added in another U.S. Supreme Court legal case which is often cited as Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).  That case established newer and more robust “scientific methods” which must be considered before accepting expert testimony.

While there is no complete checklist, and there are several additional factors to consider, one U.S. Federal Appeals Court has summarized a short list of a few key issues which should be considered for the Daubert standard.  These include:

  1. Whether the theory or technique of the expert can be tested.
  2. Whether there is a known, or potential, rate of error that can be determined with some level of assurance.
  3. Whether there has been any peer review and publication (think Frye here).
  4. Whether the theory or technique is generally accepted in the expert’s community (again, think Frye).  For us it would be in the SAP community.

The Gatekeeper Role to Prevent Unreliable Expert Testimony

The role of the judge in court cases involving expert witnesses is to act as a “gatekeeper” by letting in only those experts who at the most basic meet two key criteria: the testimony has some measure of reliability by fitting the criteria of either of the cases above, and the testimony directly relates to some set of facts or circumstances of the case that the expert will help everyone understand.  The expert’s testimony should help bring enough clarity that the judge and jury can more easily make an informed decision about some fact or issue in the case.

Which Expert Testimony Legal Standard to Use?

It is important to understand that if you end up litigating as an expert witness in a state court case in the United States rather than a federal case you may be subject to different standards and requirements as an expert witness.  Again, which venue is this, is it a state court case or a federal case?  For example, as of 2011, the following states use the following expert witness standards as defined in the legal cases above [FN1]:

[A]s many as 34 state jurisdictions have adopted the U.S. Supreme Court’s standards articulated in Daubert. Those states include Alaska, Arizona, Arkansas, Colorado, Connecticut, Delaware, Georgia, Hawaii, Idaho, Indiana, Iowa, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Mississippi, Montana, Nebraska, New Hampshire, New Mexico, Ohio, Oklahoma, Oregon, Rhode Island, South Dakota, Tennessee, Texas, Utah, Vermont, West Virginia, and Wyoming – and most recently in 2011 Alabama and Wisconsin.

Currently 9 states and the District of Columbia follow the Frye rule – either specifically rejecting Daubert or choosing not to apply Daubert principles. These include California, the District of Columbia, Florida, Illinois, Kansas, Maryland, Minnesota, New York, Pennsylvania, and Washington.

Meanwhile, 7 states have their own unique approach and utilize neither Daubert nor Frye: Missouri, Nevada, New Jersey, North Carolina, North Dakota, South Carolina, and Virginia.

This is more than enough of an introduction to the legal standards. There are a few areas to focus on here.  There is the consulting fraud itself – fake skills, experience, and backgrounds.  There are considerations for how much affect the consulting fraud has had on a project (i.e. damages, etc.) and then there are potentially fraudulent system integrator tactics which are designed to maximize their profit while taking advantage of the client. 

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[FN1] Daubert, Frye … or Both? Tracking Florida’s Buy-In. http://www.ims-expertservices.com/blog/2012/daubert-frye-or-both/

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How the SAP Consulting Peter Principle Works

September 12th, 2011 by
SAP Peter Principle

SAP Peter Principle

Most of us working in business for any period of time have heard of the “Peter Principle.”  It was “formulated by Dr. Laurence J. Peter and Raymond Hull in their 1968 book The Peter Principle, a humorous treatise which also introduced the ‘salutary science of Hierarchiology’ …” [FN1]  While the exact quote is a little different, it has come to mean that people tend to rise to their level of incompetence in organizations built on hierarchies.

As an important caveat before getting into this topic, I have known many really hard working folks who have risen through the ranks the “old-fashioned” way –, through hard work and “paying their dues.”

My Experiences with the SAP Consulting Hierarchy

After over 20 years in IT, and over 20 SAP projects, I have seen the Peter Principle again and again.  It’s the nature of how the IT consulting world works.  It is frustrating, and it is enough to drive the competent, diligent, and most talented consultants absolutely crazy.

The “Peter Principle” happens in the consulting world because this is what organizations who implement SAP demand of their implementation vendors.  Sure, that sounds counter-intuitive and crazy, but unfortunately it is a sad reality.

You might be asking yourself right now, IS HE CRAZY?  Maybe a little, but on this point, let me assure you, it is quite true and in a moment you will see exactly how it happens and why.

Enter the Crazy World of Consulting – Why Consulting Incompetence is Rewarded

Once inexperienced, incompetent, or “less than optimal” consultants get onto your SAP, ERP, or other IT project, you are now set up for seeing the “Peter Principle” in effect.  On your implementation or upgrade project an inexperienced or incompetent consultant will ultimately make a mess, however it won’t be seen right away.  There may be signs along the way, but only deep experience will recognize this unless it is blatantly obvious.  There is always some reasonable sounding explanation, or some gibberish, or some babble that is pronounced with confidence but you don’t really understand it. Or, they have become polished and provide entirely rational and reasonable explanations, whether true or not.  After all, they are the “expert” you hired so they must know what they are talking about, right?  Nonsense!

First Sign of the SAP Peter Principle

“Blah, blah, blah”  I have no idea what you just said but just so I don’t look stupid I’m not going to challenge it.

As I’ve written on many occasions, part of the key skills and experience a good consultant or business analyst MUST possess is the ability to take the complex and make it simple.  ANYONE can take something complicated and keep it complicated, or worse still, make it more complicated, or, worst of all, make it a mess.  It takes experience and competence to take the complex and simplify it.  But all that “technical babble” and jargon sounds so convincing, so educated, so, foreign.  It’s a foreign language that you don’t completely understand and these incompetents know it.  Unscrupulous consultants know if they can make something up and sound as though they know what they are talking about you will believe them –, you hired them for their expertise.  They can game you to increase scope, or extending project timelines, or busting your budget and they do this because they are personable and manipulative.

How Can You Identify the SAP Con Artists?

Accountability, Responsibility, and Quality.  The cons avoid accountability or direct responsibility.  On a project where they are discovered they must be nearly forced to have clear accountability for delivery.  They must be pressed into doing what I call “due diligence” around a solution to make sure it will work correctly.

If you catch it early enough you can keep these incompetents from being rewarded for blowing your budget, causing project delays, and creating even MORE complicated and convoluted processes than you had BEFORE you did your SAP implementation.

How Customers Provide Perverse Rewards for Incompetence

The incompetent consultant’s area seems to have users who struggle with problems / issues / bugs that need the most fixing and the most attention.  By this time many companies have invested so much time and effort with the incompetent consultant that they don’t see any other options but to continue with this fraud.  The incompetent consultant is needed badly to support the mess they make for some time after you go live.

One way you can tell you have been manipulated or gamed during the project is by the quality, completeness, and accuracy of the solution the consultant delivers at go-live. 

From a consulting firm’s perspective, the incompetent consultant puts in lots of extra billable hours, helps them get extensions and budget increases, and needs to have lots of extra consulting support.  They are always behind, and no matter how hard “they try”, they always have another excuse for why the problems they cause really aren’t their fault–, it’s always someone else.

These consultants stay on long after go-live to ensure that their questionable solutions are supported by the same person who made the mess to begin with.  This is what customers insist on because by the time go-live happens they are “stuck” with the mess and “stuck” with the “con”sultant who made the mess.

Incompetent consultants tend to be VERY personable most of the time, and ingratiate themselves with the customer / client so that there is no question that they are working SO hard, and doing such a GREAT job.  It could never be their fault.

How SAP Consulting Vendors Reward and Promote the Peter Principle

For the consulting vendor, billing hours go up, staffing and utilization numbers are high, additional “backfill” support is needed and more people are staffed.  From their metrics and possible compensation incentives the incompetent consultant is doing a great job!  On the other hand the highly experienced, competent, and diligent consultants “work themselves out of a job.”  The competent consultants tend to have fewer go-live support issues, they usually have more engaged, involved, and knowledgeable users.  And they are just plain better prepared.  They are not “needed” as you go-live and you, as the customer, get rid of them to cut the blown budget wherever you can.

In a partner oriented firm the incompetent consultant is headed for being a manager, senior manager, managing partner, etc.  The incompetent consultant has great utilization, helps to get more staff on projects, and is always busy.

In the consulting companies incompetence is rewarded and incentivized by the consulting firms.  The most competent and diligent consultants are passed over for career enhancement precisely because of their competence – they may finish projects earlier than their incompetent peers and may be “on the bench” more frequently.

The more skilled the incompetent consultant is at being personable, at presenting a compelling case for why they are doing such a great job but you need more resources, the better positioned they are for higher level promotions.  After all, in consulting firms, senior level positions are focused on getting billable resources out and billing.  The more experienced and capable at this the better positioned you are for partner or senior management.

Stay tuned next week – details on how to spot them and then ferret them out…

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