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

Overview of presentation:
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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?

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

Recap of Title VII
National Origin Issues:
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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

Recap of INA/IRCA Citizenship/
Immigration Status Issues:
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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

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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?]

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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

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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 overapplying [no penalty for doing so]

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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]

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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

Interim Conclusions:
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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! 