H-1B issues going to court

Date: Thursday, September 26, 2002 11:41 AM

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I agree with this article that it's legal for most companies to fill U.S.
jobs with H-1B workers. The Dept. of Labor states that companies DO NOT HAVE
TO SHOW PREFERENCE FOR AMERICAN CITIZENS WHEN HIRING. That doesn't mean it's
impossible to sue companies because this article mentions that several cases
have been settled out of court. Most of these cases involved American
workers that were directly replaced.

Perhaps if a few more of these cases are successful it will force companies
to be much more discrete when they replace American workers. Replacement is
not likely to stop but it could be seriously slowed down. The law would have
to change before companies were forced to hire Americans over H-1Bs.

The problem with the H-1B system, as well as most of our immigration system,
is that there is very little investigation done - in other words companies
are just assumed to be honest. ``There is no system of checks,'' said B.
Lindsay Lowell, director of research at the Pew Hispanic Center and an
expert on H-1B issues. ``It is completely a complaint-driven process and
it's very difficult often to bring a viable legal case against employers.''

This article also makes it clear that workers better think twice before they
sign those severance agreements.

http://www.bayarea.com/mld/mercurynews/4152163.htm

Posted on Wed, Sep. 25, 2002

H-1B issues going to court
U.S. WORKERS SAY THEY ARE FEELING BETRAYED
By Jennifer Bjorhus
Mercury News

For years U.S. engineers have grumbled that foreign engineers on work visas
were getting their jobs. Now, for the first time, U.S. workers are filing
formal complaints with the government and in court, charging that foreign
guest workers are replacing them during the downturn.

The complaints contend that citizens were either laid off or not hired in
favor of foreign workers on temporary H-1B visas. H-1B workers are supposed
to fill only those jobs left vacant by a shortage of skilled U.S. workers.

While the previous griping was often dismissed as racial backlash, the new
complaints spring from across the tech workforce -- from men and women,
white and non-white, native-born Americans and naturalized citizens. And
labor lawyers researching the cases are finding something that stuns them:
The H-1B rules give citizens almost no protection from being replaced by a
foreign worker.

Such complaints have prompted the Department of Justice to examine Sun
Microsystems' use of the program. And they've led the General Accounting
Office, an investigative arm of Congress, to study how the H-1B program is
affecting U.S. workers.

``Betrayal is the word that would come to mind,'' said Allan Masri, a
52-year-old San Jose engineer who was laid off from his quality assurance
engineering job at Netscape a year ago. His colleague, an H-1B worker with
the same job title, stayed on. Masri said he spent weeks training him on
things such as the XML programming language. Masri said he feels he was
replaced; Netscape said he was not.

When Congress expanded the H-1B program in 1998, under intense pressure from
the tech industry to increase the number of H-1B visas, it left truck-size
holes in the rules.

As a result, most employers don't have to hire U.S. citizens first or lay
them off last. And it's perfectly legal for most companies to fill U.S. jobs
with H-1B workers.

Tech leaders insist companies use the program only if they can't find
qualified U.S. engineers. Harris Miller, president of the Information
Technology Association of America, calls the protections for U.S. jobs
``more than adequate.''

Miller said H-1B wage requirements ensure that employers don't undercut U.S.
workers; companies must post notices when they file H-1B applications. If
the rules are broken, anyone can file a complaint, he said. The fact that
the number of H-1B visa applications dropped this year indicates employers
are using the program appropriately.

The H-1B program expanded swiftly during the tech boom when employers
complained of a shortage of engineers. But with record-high unemployment
among U.S. engineers, it's hard to argue there's a shortage now.

``One recruiter flatly told me they have 50 H-1Bs willing to work cheap
ahead of me in line,'' said James Stakelum, a Dallas database administrator.

While Stakelum didn't file a complaint, others have.

Jenlih Hsieh, a 50-year-old U.S. citizen from Taiwan with a master's degree
and more than 12 years of experience in Unix systems administration, filed a
complaint with the Equal Employment Opportunity Commission, the U.S.
Department of Justice and in Santa Clara County Superior Court. Hsieh
alleges that SwitchOn Networks of Milpitas fired him after six months and
replaced him with an H-1B worker.

According to the complaint, filed by attorney Phillip Griego, the H-1B
worker was earning $30,000 less a year, had only a bachelor's degree and
much less experience. An attorney for the company said Hsieh was fired in a
layoff and that his dismissal had nothing to do with being a U.S. citizen.

Some immigrants are astonished that being a U.S. citizen doesn't help them
beat H-1B workers in the job market.

``It's just so upsetting,'' said Jayashree, 40, a Sunnyvale engineer who
asked that her last name not be used. A U.S. citizen from India with a
master's degree in computer engineering and hot skills such as C++ and Java,
Jayashree filed a complaint with the EEOC after a start-up told her that an
H-1B worker from India got the software job she wanted. Unemployed with a
son headed to college, she worries about her future.

``What are we supposed to do?'' she said. ``We came here in the 1980s and we
worked very hard to come this far.''

No one knows how many U.S. workers are reporting this problem. Complaints
made to the federal government are not public until they are resolved, and
few have been. The Mercury News has found scores of complaints at attorneys'
offices and government agencies nationwide, from the EEOC to the Department
of Justice and Department of Labor, the top enforcer of the H-1B program.

None of the agencies responsible for investigating complaints tracks them.

What's clear is that employers continued hiring H-1B workers during a period
of mass layoffs. Silicon Valley's top 10 tech companies alone hired at least
2,000 H-1B workers last year -- when they shed more than 41,000 jobs.

Some valley companies say they have reduced H-1B hiring dramatically. Intel,
which said that it hired somewhere between 65 and 584 H-1B workers last year
when it cut 5,000 jobs, added it applies for H-1B visas only when it can't
find qualified U.S. workers.

``The real issue here is the shortage of highly educated, qualified U.S.
candidates for the jobs for which we experience skill shortages,'' said
Intel spokeswoman Gail Dundas.

Critics charge some employers prefer foreign workers because they are
cheaper and more pliable. Three university studies and H-1B salary data from
the Immigration and Naturalization Service indicate that H-1B engineers and
programmers are paid 15 to 30 percent less.

Some H-1B workers acknowledge tremendous pressure to toe the line and work
long hours for employers that hold unusual power over their lives. If they
are let go, H-1B workers must leave the country unless another employer
steps in as a sponsor.

``The younger guys, they'll work 15-hour days easily,'' said Mohammed
Shaikh, a 26-year-old H-1B accountant in Hayward who works at a financial
services company.

The H-1B rules leave it up to employers to determine whether there's a
shortage of qualified workers. Labor officials aren't out with clipboards
checking for shortages. Nor do they check if employers are paying H-1B
workers what they pay others, unless there is a complaint.

``There is no system of checks,'' said B. Lindsay Lowell, director of
research at the Pew Hispanic Center and an expert on H-1B issues. ``It is
completely a complaint-driven process and it's very difficult often to bring
a viable legal case against employers.''

The U.S. Department of Justice has been investigating complaints for
violations of the Immigration and Nationality Act, which forbids
discrimination against employees or job seekers on the basis of their
citizenship. It's currently investigating Sun Microsystems after a laid-off
engineer complained in April about widespread displacement of U.S. citizens.
But most such cases haven't been successful.

``They're very tough cases to prove,'' said a justice official who spoke on
condition of anonymity.

But not impossible.

Richard Schramm, an employment lawyer in San Jose, has settled six cases out
of court under state and federal laws that make it illegal to discriminate
against a job seeker or employee based on their national origin. Schramm's
cases involved a variety of tech companies and engineers from various ethnic
backgrounds who are U.S. citizens. All said their employer booted them for
an H-1B worker with less education and less expertise.

``Most companies are too embarrassed to let this go public, to let it be
known that you're abandoning American workers in favor of foreign-based
workers,'' Schramm said. ``It's the embarrassment factor that we use in
order to settle these cases.''

For every formal complaint, there are many more workers who feel
shortchanged but don't speak out. Many signed away rights to challenge their
former employer in order to get severance packages.

Bob Simoni did not.

Simoni, 39, lost his consulting job at Toshiba American Electronics
Components in Irvine in March.

Simoni, who has an MBA from the University of California-Los Angeles, had
worked at Toshiba as a contract engineer for two years installing software
in the company's information technology division. He came to work in
February to find everyone packing their boxes. Toshiba was outsourcing the
division to an India-based technology services company, Infosys, which
employs H-1B workers in the United States.

Simoni said Toshiba asked him to stay for three weeks to do ``knowledge
transfer'' with Infosys employee Rakesh Gollapalli, who told him he had an
H-1B visa. It hurt to be training someone who for all practical purposes was
replacing him, and it felt wrong, Simoni said.

Toshiba wouldn't discuss Simoni's situation. A vice president, Stephen
Marlow, said the company decided to outsource some jobs to streamline its
business in the face of a challenging global market for electronic
components.

But Simoni said, ``I don't know how they can justify it. They didn't offer
us the opportunity to interview for these positions.''

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