A pair of federal agencies this week launched a two-pronged attack against abuse of a program for foreign temporary workers, warning companies not to discriminate against American citizens and inviting workers to make complaints.
Monday was the first day that corporations could submit applications for guest workers under the H-1B program, which supposedly lets companies address shortages of workers with specialized skills. The program sets an annual cap of 65,000 visas, plus an additional 20,000 foreigners who hold advanced degrees from U.S. universities. Last year, the government received 236,000 applications.
“It is easier to launch an investigation if you have cases in hand. What they’re doing is trolling for clients.”
Critics long have contended that companies use the program to drive down the wages of U.S. workers and replace Americans altogether by facilitating outsourcing. With legislation stalled in Congress, President Donald Trump’s administration began taking steps authorized under current law.
The first comes via an announcement from the Justice Department that it would pursue cases against companies that use H-1B visa to discriminate against U.S. workers because of their citizenship. At the same time, U.S. Citizenship and Immigration Services officials announced that U.S. workers or guest workers who know of abuses can submit tips or report alleged violations by emailing [email protected]
Also, the USCIS published guidelines indicating that companies wanting to sponsor temporary foreign computer programmers at the lowest pay levels would have to prove the workers qualify as “specialty” labor in order to be approved.
Russell Harrison, a spokesman for the Institute of Electrical and Electronics Engineers, said the email hotline is an “important escalation” in the government’s enforcement efforts.
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“It is easier to launch an investigation if you have cases in hand,” he told LifeZette. “What they’re doing is trolling for clients.”
Using Anti-Discrimination Laws
Experts have said the H-1B law gives employers a great deal of flexibility, including even allowing the widely condemned practice that Walt Disney World employed to fire information-technology workers in 2015 — but not before forcing them to train replacement H-1B workers from an Indian outsourcing firm as a condition of severance. A federal judge in October ruled that Disney did not violate visa rules.
But Harrison said anti-discrimination laws make it illegal to hire or fire based on citizenship.
“Historically, of course, that’s been used to protect people who aren’t citizens,” he said.
But Harrison said the law also can be used to protect discrimination against citizens. He said his trade organization met with the Justice Department’s Office of Special Counsel in 2015 and that staffers there confirmed that interpretation of the law.
“However, the office never took the next step and launched an investigation,” he said. “We’re not really sure why that is. But there’s a new person in charge of the department.”
That new person would be Attorney General Jeff Sessions, who as a senator from Alabama had a long track record of trying to reform the program. In addition, Trump shined a spotlight on the issue during the 2016 campaign.
In addition to soliciting fraud and abuse tips, the USCIS said the agency would conduct targeted, unannounced visits to job sites where H-1B visa holders work.
Sens. Charles Grassley (R-Iowa) and Dick Durbin (D-Ill.), who sponsored an H-1B reform bill in January, praised the Trump administration’s efforts.
“This announcement by the Trump Administration to target employers who abuse the H-1B program is a welcomed first step toward preventing the firing of skilled American workers,” they said in a joint statement. “However, much more needs to be done.”
John Miano, a lawyer and co-author of a 2015 book on immigration abuses, said having a hotline could help illuminate the scope of the problem.
“The question is how much will it attract?” he said. “If people realize they can start making money as whistleblowers, we might start seeing a lot of complaints … I suspect there is much more fraud than people suspect.”
Justice Department Crucial
Miano said a hands-on approach by the Justice Department is crucial since it has more flexibility in opening investigations than the Labor Department, which cannot investigate H-1B cases without personal authorization from the department’s secretary.
“There are a lot of handcuffs on Labor, but not on the Department of Justice,” he said.
Chris Chmielenski, director of content and activism at the advocacy group NumbersUSA, also praised the administration’s efforts to crack down on abuses.
“It’s the first time, really, that we’ve seen H-1B workers will really have a voice and will expose some of these things,” he said. “This is the first step to reform the H-1B system.”
The bill by Grassley and Durbin is the latest version of legislation they first proposed in 2007. It would prioritize guest workers with advanced degrees and those who would receive higher salaries. It also would crack down on outsourcing firms and place limits on the number of H-1B employees a company could hire.
In the House, Reps. Darrell Issa (R-Calif.) and Scott Peters (D-Calif.) sponsored legislation in January that would prohibit “H-1B-dependent” companies — those in which the H-1B workforce is at least 15 percent of the total — from displacing American workers unless the foreign workers make at least $100,000. The current threshold is $60,000.
Neither bill has advanced in Congress.
Chmielenski sad NumbersUSA favors an approach taken in a bill sponsored last year by Sen. Ted Cruz (R-Texas) and then-Sen. Jeff Sessions (R-Ala.) that would require all H-1B workers be paid at least $110,000. That would prevent firms for using the program to drive down wages, he said.
Too often, Chmielenski said, lawmakers ignore the impact on wages and focus on outsourcing.
“In our minds and most people’s minds, both of them are bad,” he said.