DISCRIMINATION INVOLVING H-1B STATUS: AN UPDATED REVIEW AND ANALYSIS

1. DISCRIMINATION INVOLVING H-1B STATUS: AN UPDATED REVIEW AND ANALYSIS Stan Malos, J.D., Ph.D. Professor of Management/HRM Organization & Management Dept. San Jose State University

2. Overview of presentation: • Invited updates to previous paper [ERRJ, 2011; PNALSB 2010] on rights of H-1B visa holders if employers prefer U.S. citizens in RIFs [Bender] • Current issues more re: rights of U.S. citizens when displaced by cheaper H-1 B visa holders • Question: Does the confluence of immigration, citizenship, and national origin discrimination continue to pose risks for firms employing foreign guest workers? Changes since 2010?

3. Recap of H-1B Status Issues: *The H-1B program allows for temporary U.S. employment of foreign guest workers in a “specialty occupation” *A “specialty occupation” requires application of a specialized knowledge and a bachelor's degree if there are insufficient qualified American citizens *H-1B is most often used in professional jobs in high technology or other industries which require special professional expertise *Job loss [e.g., via RIF] eliminates H-1B eligibility

4. Recap of Title VII National Origin Issues: • T. VII prohibits employment discrimination based on national origin, meaning a worker’s place of birth or that of his or her ancestors • The EEOC has administrative jurisdiction over such complaints for employers with 15 or more workers • Administrative remedies must be exhausted prior to seeking judicial review

5. Recap of INA/IRCA Citizenship/Immigration Status Issues: • The INA/IRCA prohibits employment discrimination based on citizenship or immigration status • The Justice Department’s Office of Special Counsel [OSC] for Immigration-Related Unfair Employment Practices has administrative jurisdiction to handle these claims, and to handle national origin claims for employers of 14 or fewer workers • Confusing administrative landscape and technical defenses may have helped employers defend these claims more so than valid staffing practices

6. Research Proposition: • Economy down => foreign guest workers complain of displacement in favor of U.S. citizens • Economy up => U.S. citizens complain of displacement in favor of (less costly) foreign guest workers [cf. similar issues in Canada?]

7. Method: • LEXIS database used to find Federal cases involving H-1B status since last review [case review pending] • OSC web site also visited for recent enforcement or settlement activity not disclosed in reported cases

8. Highlights of Findings: • Allocation of H-1B visas for 2015 already exhausted; 233,000 applicants subject to lottery for 85,000 available visas • Problem may be exacerbated by companies and staffing agencies over-applying [no penalty for doing so]

9. Types of alleged violations: • Expressing preferences for foreign guest workers in job announcements • Underpaying foreign guest workers for the same work done by U.S. citizens • Using FGWs when U.S. citizens available • No private C/A, but Senate now involved [investigating SoCal Edison for all three types of violations]

10. Recent OSC Settlements: • IBM (9/27/13)—$44K; • Avant Healthcare Professionals (2/8/13)—$28K; • Infosys (10/30/13)—$34M! [record] • Other global staffing agencies drawing OSC & congressional attention

11. Interim Conclusions: • Employers continue to succeed in defending claims involving H-1B status but mostly on technical grounds • With Congress getting involved, regulatory activity may now heat up • H-1B visa holders subject to deportation upon job loss may have limited access to counsel • Employers should worry more if the plaintiff has a good lawyer who’s heard of the OSC! 