Discrimination Complaints Filed Against H-1B Employers
Discrimination Complaints Filed Against H-1B Employers
Date: Tuesday, June 20, 2006 12:45 AM
<<<<< JOB DESTRUCTION NEWSLETTER No. 1504 -- 06/20/2006 >>>>>
All of you that have received my newsletter for awhile know about the
infamous jobs ads for H-1Bs only. If you haven't, just go to the archive
and look for "job ad" in the subject title. There are a multitude of
examples and they include many for other visa holders such as L-1s or OPTs.
Now the Programmer's Guild is trying to do something about the obvious
discrimination contained in these job ads.
The PG complaint to the Dept. of Justice may seem like a slam dunk, but it
isn't. Our government has been totally negligent when it comes to fighting
discrimination against U.S. citizens so the outcome of this complaint isn't
clear. There have been many court cases where foreign nationals won
decisions based on discrimination against national origin, but U.S.
citizens haven't fared so well. One thing for sure, the complaint by the PG
is a step in the right direction, and it could in time turn the debate back
in favor of U.S. citizens.
There are some legal questions about whether under the Immigration and
Nationality Act citizen workers are a protected class that can file
discrimination complaints based on immigration status. Title VII of the
Civil Rights Act of 1964 talks about protected classes of employment
discrimination - it is defined by anyone who suffers discrimination because
of their age, sex, race, national origin, disability, creed or religion -
but not citizenship or immigration status.
At first blink you might think that there is no difference between
"national origin" and citizenship - but don't forget that legal terms are
not necessarily the same as what you might find in a dictionary. The bottom
line is that U.S. citizens have a lot less protection than they think.
Consider this on nolo.com:
What Is National Origin Discrimination?
An employer discriminates on the basis of national origin when
it makes employment decisions based on a person's ancestry,
birthplace, or culture, or on linguistic characteristics or
surnames associated with a particular ethnic group. For
example, an employer who refuses to hire anyone with a
Hispanic last name discriminates, as does an employer who
won't allow anyone with an accent to work with the public.
This begs the question: If an employer specifies that a job applicant must
have a particular visa, does he violate anything in the description above?
Unfortunately that's a question that hasn't been adequately answered yet
which makes it subject to the interpretation of courts.
I hope that in a future newsletter I can delve into this topic further. In
the meantime, this is still very much applicable as nothing legally has
changed:
http://www.zazona.com/shameh1b/JobDestructionNews2004.htm
2004-12-21 Civil Lawsuits and Pascrell's Bill
Materials Used
http://www.prweb.com/releases/2006/6/prweb400619.htm
Programmers Guild Files 300 Discrimination Complaints Against H-1B
Employers
http://www.computerworld.com/action/article.do?command=viewArticleBasic&articleId=9001285
Programmers file federal complaints over 'H-1B only' ads
http://www.informationweek.com/news/showArticle.jhtml?articleID=189500611
Complaints Allege 'U.S. Workers Need Not Apply'
+++++++++++++++++++++++++++++++++++++++++++++++++++
http://www.prweb.com/releases/2006/6/prweb400619.htm
Programmers Guild Files 300 Discrimination Complaints Against H-1B
Employers
As special interests pressure the Senate to lift the cap on H-1B visas, the
Programmers Guild has filed complaints against over 300 companies whose
help wanted ads discriminate against Americans, denying U.S. workers even
equal access to U.S. jobs.
(PRWEB) June 19, 2006 -- The Programmers Guild has filed employment
discrimination complaints against over 300 employers this year. These
actions, including case number 197-19-120, are being filed with the U.S.
Department of Justice, Office of Special Counsel for Immigration-Related
discrimination. The complaints allege that the companies have discriminated
against U.S. workers in job postings that express preference towards hiring
foreign workers on H-1B visas.
Under the Immigration and Nationality Act, U.S. Workers, those legally
entitled to work in the United States, are a protected class. It is illegal
to discriminate against U.S. workers on the basis of immigration status.
John Miano, who founded the Programmers Guild in 1998, is filing the cases.
"Abuse of the H-1B program has become so widespread that companies
apparently feel free to engage openly in the practice. And we are only
reviewing ads for computer programmers."
The Law Offices of Rajiv S. Khanna posted a warning to employers on its
website to stop running such ads, bolstering the legitimacy of the
Guilds charges:
"We are representing some employers who have recently been served with a
notice by the US Department of Justice for investigation regarding
discrimination against US Citizens. The charges allege that these employers
placed ads inviting only nonimmigrants to apply. Please stop all such
advertising."
John Miano cites examples from actual postings on DICE and MONSTER:
"We offer H1B services for L1 Visa Holders and new H1B for the right
candidates in India."
"H1B -From India-Multiple positions"
"We require candidates for H1B from India."
"ONLY OPT STUDENTS NEED APPLY"
"We sponsor GC [green card and we do prefer H1B holders"
In addition to this "Americans need not apply" discrimination, many H-1B
job postings are for employment arrangements that amount to the sale of
visas and green cards. "We have postings for arrangements where the
employee finds his own work and the employer takes a cut of the
earnings." Many "high-tech companies" obtaining H-1B visas operate out of
apartments and Mailboxes Etc.," according to Miano.
Many of the ads include free training and interview preparation. Dozens of
such ads can be seen at http://classifieds.sulekha.com/ . Miano observed,
"We are told that we need these H-1B workers because Americans do not have
the right training. Yet we see employers offering technical training to
H-1B workers that is not being offered to U.S. workers,"
Toni Chester, an American computer programmer in New Jersey with two BS
degrees and 17 years of experience has been unable to find work in that
state since she was replaced by an H-1B teammate in August 2001. When she
responded to a "foreign worker" ad for free training, she was told that the
training had been cancelled, but observed that the ads for jobs and
training continued to run. In spite of follow-up emails and phone calls,
she was denied the same training placement assistance, and jobs that are
afforded to H-1B holders.
In February 2006 Chester contacted both of her U.S. Senators and
Representative Scott Garrett regarding this discrimination. Senator
Lautenbergs local office responded, directing her to contact Christine
Iverson at the Department of Labor. She complied and faxed the details, but
so far has heard nothing. Meanwhile Senator Lautenberg is supporting the
Comprehensive Immigration Reform Act (S.2611), which would substantially
increase the H-1B quota without any reforms to protect U.S. workers.
Ironically the U.S. government collects a fee from each H-1B visa,
ostensibly to retrain displaced Americans. But rarely is such training
available to skilled workers such as Chester. Jones County Junior College
in Mississippi, for example, is using an H-1B grant to train workers for
jobs in food service industries like restaurants and casinos.
So where can Chester turn for assistance?
The Senate Immigration Reform Bill expands the H-1B program but addresses
none of the problems, such hiring H-1Bs without first recruiting Americans.
The U.S. Department of Labor is reserving 65,000 U.S. tech jobs exclusively
for foreign workers to fill in October 2006, refusing to allow Americans to
apply in the mean time. The Department of Labor, Foreign Labor
Certification at (202) 693-3010 has not returned our calls in this matter.
The Programmers Guild suggests that, unfortunately, Chester would do better
if she became a citizen of another country and then re-entered the U.S.
workforce on an H-1B visa.
About us
The Programmers Guild advocates for the interests of U.S. computer
programmers and other tech workers. The Guild supports Congressman
Pascrells H.R. 4378, which would amend H-1B legislation to require
employers to first recruit U.S. workers, along with other protections. See
www.programmersguild.org for more information.
References
U.S. Department of Justice, Office of Special Counsel for
Immigration-Related discrimination
http://www.usdoj.gov/crt/osc/
Notice of suits by The Law Offices of Rajiv S. Khanna:
http://www.immigration.com/newsletter1/doj_investigation.html
H-1B funds used to train workers for food service industry:
http://www.hattiesburgamerican.com/apps/pbcs.dll/article?AID=/20060609/LIF
ESTYLE/606090309/1024
Database of LCAs for H-1B on Department of Labor website:
http://www.flcdatacenter.com/CaseH1B.aspx
Senator Lautenberg vote for the Comprehensive Immigration Reform Act
(S.2611)
http://lautenberg.senate.gov/newsroom/record.cfm?id=256328&
Sample of ads for free training for students on visas:
http://classifieds.sulekha.com/atlanta/clad.aspx?cid=676564&nma=WW
http://classifieds.sulekha.com/clad.aspx?cid=544347
+++++++++++++++++++++++++++++++++++++++++++++++++++
http://www.computerworld.com/action/article.do?command=viewArticleBasic&articleId=9001285
Programmers file federal complaints over 'H-1B only' ads
Patrick Thibodeau
June 19, 2006 (Computerworld) The Programmers Guild is filing a stack of
complaints with the U.S. Department of Justice against some 300 IT
employers it says are discriminating against U.S. citizens and permanent
residents by placing advertisements that specifically seek "H-1B only" visa
holders or workers who have student or L-1 visas.
John Miano, founder of the Summit, N.J.-based Programmers Guild, said today
that he has collected some 1,500 IT job advertisements in the past six
weeks from a variety of online jobs boards that express preference for
hiring visa holders. Miano said the practice is widespread because "for the
most part, there isn't much enforcement going on. So we are trying to do
what we can do to bring private enforcement against these employers."
Miano said H-1B workers are in demand because "they are cheap and they make
good slave labor." The guild has filed about 100 complaints with the DOJ's
Office of Special Counsel for Immigration-Related Discrimination, and it
plans to file another 200.
It's not to difficult to find IT job advertisements that seek specific
skills, and H-1B opponents have long circulated examples of these
advertisements on mailing lists.
For instance, in a search on the job board run by Dice Inc., iGate Mastech,
a Pittsburgh-based IT staffing agency with about 1,000 employees, has an
advertisement for eight Java developers with three to five years of Java
development experience. The ad says: "Only looking for H-1B visas and
should be willing to transfer."
The iGate Mastech recruiter listed as the contact for job openings said the
ad should have said the positions were open to U.S. job holders and called
it a typo. But iGate officials said the job was placed for a U.S. firm that
was having trouble finding Java developers.
Murali Balasubramanyam, senior vice president of human resources and
recruiting at iGate Mastech, said that particular job advertisement is for
a large client that first tried to hire U.S. citizens and permanent
residents and was unable to do so. When clients "cannot find suitable
candidates, they come to staffing companies like us and say, 'We haven't
been able to find a local citizen here; can you now get us an H-1B
candidate?'"
Balasubramanyam said that for whatever reason, the IT employer may not be
comfortable sponsoring the H-1B visa holders themselves and turn to IT
staffing firms for help. Other iGate Mastech ads on Dice that were checked
did not have similar H-1B-specific requirements.
Miano said that iGate Mastech is one of the companies he has filed a
complaint against, and he noted that some of the companies seeking H-1B
employees may be small, possibly operating out of a private residence in
some cases, or are staffing agencies. Larger, better-known IT vendors
aren't cited in his complaints.
+++++++++++++++++++++++++++++++++++++++++++++++++++
http://www.informationweek.com/news/showArticle.jhtml?articleID=189500611
Complaints Allege 'U.S. Workers Need Not Apply'
U.S. engineering groups are filing a growing number of discrimination
complaints against American companies for allegedly favoring foreign
workers.
By EE Times
June 19, 2006
WASHINGTON - U.S. engineering groups are filing a growing number of
discrimination complaints against American companies for allegedly favoring
foreign workers.
Groups such as the Programmers' Guild have filed more than 300 employment
discrimination complaints against U.S. companies alleging that employers
have "discriminated against U.S. workers in job postings that express
preference towards hiring foreign workers on H-1B visas."
One of the complaints was filed with the Justice Department's Office of
Special Counsel for Immigration-Related Discrimination.
The complaints come in response to intense lobbying by high-tech groups to
lift the annual cap on H-1B high-tech visas. The current annual cap
totaling 65,000 visas was reached in late May. Groups like the IEEE-USA
claim the H-1B visa program is being abused by U.S. employers in order to
depress wages.
Guild Founder John Miano claimed in a statement: "Abuse of the H-1B program
has become so widespread that companies apparently feel free to engage
openly in the practice" of seeking only foreign workers.
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