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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