Many American jobs are taken by workers from offshore who have H-1B visas. In 2016, the Disney Corporation laid off dozens of its American IT staff and replaced them with H-1B Visa workers. A judge ruled that Disney did not violate any visa laws in the layoffs. Southern California Edison and the University of California in San Francisco also replaced American IT staff with H-1B visa holders. According to The New York Times, the foreign workers are hired, “to do the grunt work of programing.” In all cases, the foreign workers were on contract through Indian outsourcing firms like Infosys.
The majority of Infosys’ businesses are in the United States. The company acts as a temporary placement service. It receives several thousand H-1B visas every year and brings in entry-level Indian programmers who move from project to project in banks, pharmaceutical companies, manufacturing, and energy companies. These workers are technically working for the placement service. Clients pay fees to the placement service to cover their wages.
The Original Intention of the Program:
The H-1B visa program was designed for employers who seek non-immigrant foreign workers in specialty occupations such as fashion models “of distinguished merit and ability.” Specialty occupations is one that requires highly specialized knowledge, at least a Bachelor’s degree or equivalent. The intent of the H-1B provision has been to help employers who can’t otherwise find workers with the needed knowledge and ability in the U.S, workforce. The program was written to meet an expressed need to fill vacancies where there is a shortage of American talent. According to the U.S. Department of Labor (DOL), “The law establishes certain standards in order to protect similarly employed U.S. workers from being adversely affected.”
Last month (April, 2017) the DOL announced additional plans to protect American workers from H-1B discrimination. These modifications of the law came in recognition of the problem that some employers are using the program to hire non-immigrant foreign workers who would not be eligible to work in the United States without this special visa, even though there are American workers qualified and available. The U.S. Department of Justice (DOJ) has increased its surveillance of the H-1B program,
- Investigations of H-1B violators will be conducted in coordination with the DOJ and the department of Homeland Security.
- Violations of the program that discriminate against American workers through fraud can be prosecuted. Civil penalties may also apply.
- The application for H-1B visas may be changed to provide greater transparency.
- To detect abuses, an enhanced complaint mechanism has been established including an e-mail address for tips and information regarding abuses.
The DOL’s recognition of the extent of H-1B violation and fraud provides a legal framework for legal action against employers who have discriminated against American workers for financial or other reasons. Lawyers are available to discuss potential class action claims against H-1B employers who discriminate against US Citizens. Even if you are the only person affected you should contact an employee-rights lawyer. Most employee-rights attorneys may not be familiar with the 1-HB regulations because these kinds of cases have been unusual until recently. However, a good lawyer will research the regulations, most are familiar with other forms of employee discrimination. They will be able to discuss your legal options.
Many H-1B employers are using the program fraudulently by paying their H-1B workers less than they would pay American employees. The special visa program has to be used to fill jobs that require special skills not widely available in the American labor pool. Employers obligations regarding prevailing wages under the law are clear. The law requires that use of the H-1B visa program will not adversely impact the wages or working conditions of American workers in similar occupations. A civil penalty of up to $5,000 per violation could be assessed for willful failure to pay appropriate wages. A company could be de-barred from further hiring H-1B visa holders, possible criminal fraud charges, and ordered to pay penalties of $120,000 or more for improper applications.
Please contact the highly trained and experienced employment law legal specialists at Aiman-Smith & Marcy and learn more about how we can help you. Besides employment law, our California law firm also specializes in class actions in California, consumer fraud and other areas.