Who-Has-Fiduciary-Responsibility-And-What-Can-You-Do-When-There-Is-A-Breach.jpg (2149×1159)H1-B Visa Workers are permitted temporarily into the United States to work on jobs where Americans are not available. Loopholes around the law are being exploited by employers in California to the disadvantage of many employed under the program. The original intention of the program was to meet the needs of high-tech companies who could not find enough highly skilled professionals to fill openings where they were sorely needed. Over the years, however, the program began to look like something else.

To qualify for one of these H1-B visas, the applicant must have at least the equivalent of a United States bachelor’s degree. The occupations covered by the visa are technical and professional fields such as architecture, mathematics, the sciences, educations, law, business specialties, theology and the arts. The visas are not designed for permanent employment, but are good for up to three years (although there are some exceptions under the American Competitiveness in the Twenty-First Century Act). Visa holders may also make application for permanent residency status (green cards) by obtaining a I-140 immigration petition.

Protection for American workforce: The H1-B program provides for protection of the American labor force. The U.S. Department of Labor supervises the program to assure that foreign workers do not displace or adversely affect the wages or working conditions of American workers (by lowering average salaries or taking away employment opportunities). A condition employers agree to on the Labor Condition Application (LCA–asking for permission to hire H1-B visa holders) contains an attestation that the worker is not being hired to break a strike or replace an American worker.

Protection for the visa holder: When an employer applies for a H1-B petition to qualify to hire an H1-B visa holder, an LCA must be included to be certified by the Department of Labor. The LCA ensures that the wage offered to the H1-B visa holder meets or exceeds the prevailing wage for the occupation in question. There is an active mechanism for filing complaints against an employer who violates those conditions. Complaints are passed to the U.S. Justice Department for investigation.

The Outsourcing Firm Abuse System: In 2015, Walt Disney World laid off more than 200 information technologists and hired an outsourcing firm to replace them. Southern California Edison laid off more than 400 IT workers a month later and did the same thing, hiring the same outsourcing firm.

The “outsourcing firm” is really a consultant with bases abroad. The consultant recruits hundreds or thousands of foreign workers, brings them to the U.S. under the H1-B visa program and offers them to U.S. companies like Disney World. The consultant has the visa holders under contract. American companies pay the consultant at the rate authorized under the visa rules, and the consultant pays the employees at a lesser rate. They are able to do this because of a loophole in the law which exempts many companies from compliance with the H1-B standard. According to an article appearing in The Atlantic,…outsourcing companies…were employing large numbers of H1-B workers from Asia, and then contracting them out to American companies to save money…what they’re doing is helping companies find workers abroad whom they bring here for new jobs.”

This loophole in the program was part of the revision and liberalization of the program written in 1998. Practices that moved into that loophole, violate the basic premises of the program for both the visa holder and the American worker. Visa holders who come into the U.S. to work are contracted to American companies at a lower than average salary. American workers suffer because their jobs are taken away, and the base salary expectations in their profession are lowered.

Employer Sponsorship Issues: If someone gets an H1-B visa, according to one former recipient from India (currently a permanent resident in California) you are then dependent on an employer for sponsorship. Companies have been sued for abusing this leverage, doing illegal things like forcing employees to pay thousands in visa fees, or making the sign bondage contracts do they can’t quit their jobs without paying a large fine.

What Can H-1B holders do about it? The U.S. Department of Labor is responsible to investigate complaints of violations of the H1-B law, wherever the abuses violate the actual law. The government has an elaborate complaint mechanism. The first thing to do if your rights are violated under the law, applied to citizens and non-citizen alike, is to seek a remedy under the law. Judges have finding for H1-B complainants and forcing compensation. Civil fines and penalties for violations can also amount up to $5,000 per violation.

Aiman-Smith & Marcy is a high-performance, California law firm committed to finding remedies for victims of unethical business practices that large corporations too often inflict on employees, consumers, and businesses.

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Lisseth Bayona


Education and Background

I am a Los Angeles native and daughter of Salvadorian immigrants. From an early age, my parents instilled the value of hard work and education in me and my two siblings. Their perseverance enabled each of us to graduate from college and earn professional degrees.

My interest and commitment to workers’ rights have roots in my parents’ experiences as undocumented workers in Los Angeles. Witnessing the challenges they faced inspired me to pursue a career where I can help individuals confronted with similar struggles. To help someone in those moments is very satisfying. I love connecting with people and learning about their stories. I believe that dignity in the workplace is a right of all workers, not a convenience or privilege reserved for employees of a certain race, gender, age, sexual orientation, or gender identity.

Legal Experience

I received my J.D. from the University of Southern California (USC) Gould School of Law. While there, I served as a judicial extern to the Honorable Patrick J. Walsh of the United States District Court for the Central District of California, where I drafted a criminal judicial opinion. Also, while at Gould, I served as an extern for the U.S. Attorney’s Office for the Central District of California. As a Criminal Division Extern, I had the opportunity to work closely with a trial team of Assistant U.S. Attorneys on a money laundering case which further sparked my interest in litigation.

Personal Interests

In my free time, I enjoy urban vegetable gardening, traveling, and spending time with my nephew and niece. I also love to spend time at San Onofre Beach learning to surf, although admittedly, I am not very good.



Hallie L. Von Rock

Attorney (SBN 233152)

Education and Background

I moved to the Bay Area from Washington after graduating high school. I had been accepted to UC Berkeley through a program where I could defer for two years while getting my California residency and attending community college, which was significant since I was paying for college on my own. I began working for Randall Aiman-Smith and Reed Marcy in 1996 as an office manager while taking night classes. My first foray into the legal world was soon after starting at the firm when I was ready to transfer to UC Berkeley. Rather than accepting my resident status, the Board of Regents took the position that California residency required a student to be in California “two calendar years.” Randall and Reed took up my case with the same verve as they helped their actual clients and I got the chance to comb through the UC Berkeley library to read their codes and regulations to support my position. In that experience, I learned what is was like to feel helpless against a big organization and then to have dedicated attorneys in my corner to take up my cause.

After a break to pursue my major in art history, I went to UC Hastings College of Law and continued working with Randall and Reed. Having worked together now for over 25 years, we have a unique ability to work collaboratively and finish each other’s sentences. I have strived throughout my career to make a difference in the lives of our clients. At the end of the day, if I am helping someone to get compensation for losses they suffered, then I know that all the work put into a case has been worth it.

Legal Experience

I have extensive experience in civil litigation and class action cases, including conducting discovery and depositions, calculating damages analysis, preparing motions for certification, writing appellate documents, and overseeing claims administration. We have handled several class actions against retailers where plaintiffs claimed they were forced to purchase clothing to wear to work and were not compensated for these purchases, including against Abercrombie & Fitch, Hugo Boss, Armani Exchange, Uniqlo, Dollar Tree, and Ross. Recently, I was trial counsel in a defamation claim against Bank of America on behalf of a former employee who claimed the Bank blacklisted her with future employers. The jury found Bank of America liable, including for punitive damages.

Personal Interests

Aiman-Smith & Marcy has sponsored me in the Boston Marathon and New York Marathon. When I race, I often wear a “Rockstar Ronan” shirt to support research for childhood cancer through The Ronan Thompson Foundation.


University of California, Berkeley, B.A., 1999

Hastings College of the Law, University of California, J.D., 2004

Randall Aiman-Smith

Abogado (SBN 124599)

Aiman-Smith & Marcy. Oakland consumer fraud attorneys.

Educación y antecedentes

Fui afortunado. A pesar de no haber terminado la escuela secundaria o la universidad, pude -aunque con mucho trabajo- ser admitido y sobresalir en una de las mejores escuelas de derecho del país: La Facultad de Derecho de la Universidad de Berkeley. Mientras estuve allí, tuve el privilegio de ser editor de la California Law Review y miembro del Moot Court Board, asesorando en la redacción de escritos y en la defensa de apelaciones a otros estudiantes. Después de salir de la escuela de derecho, en mis primeros años de práctica, enseñé la escritura legal y la defensa de apelación en la Universidad de California, Hastings College of the Law. También, a lo largo de los años, he sido presentador en eventos de educación legal continua.

Experiencia legal

He sido abogado durante 35 años. He dedicado mi práctica exclusivamente a representar a empleados, consumidores e inversores en los tribunales estatales y federales de primera instancia y en los tribunales de apelación. Me gusta ir a los tribunales por mis clientes y he llevado muchos casos con jurado en los tribunales estatales y federales.

¿Ejemplos? En 2010, fui la abogada principal, junto con los otros abogados del bufete, en el caso Williams v. Union Pacific Railroad donde, después de cuatro años de preparación, el bufete obtuvo un veredicto del jurado de 1.670.000 dólares para una empleada afroamericana. En Rivero v. Surdyka, fui el abogado principal en el juicio y la apelación de un caso de derechos civiles que duró 15 años, incluyendo un juicio completo y tres apelaciones al Noveno Circuito, concluyendo finalmente con una sentencia para los demandantes de más de 2.300.000 dólares. Estos casos ilustran el lema del bufete: compromiso – resultados. Hay que comprometerse con un caso, a veces durante mucho tiempo, para obtener el resultado que el cliente merece.

No siempre ganamos en el juicio. Cuando eso ocurre, el compromiso significa llevar el caso al siguiente nivel y recurrirlo. En el caso Rivero, antes mencionado, eso fue lo que ocurrió: el tribunal desestimó el caso -habíamos perdido- pero apelamos y conseguimos una victoria para nuestros clientes que mantuvimos a través de dos apelaciones más. Desde entonces, el bufete ha conseguido muchas victorias en apelación que reivindican los derechos de los empleados y los consumidores.

A lo largo de los años he sido abogado de los demandantes en numerosos casos individuales y acciones colectivas. Puede sonar cursi, o difícil de creer, pero después de todo este tiempo, y después de todas las grandes experiencias que he tenido, mi parte favorita de ser abogado es cuando consigo dar un cheque a mi cliente.



Facultad de Derecho, Universidad de California, Berkeley, J.D., 1986