To: H-1B/L-1/offshoring e-newsletter As Rob Sanchez and I have often reminded readers of our respective e-newsletters, the H-1B program does not require employers to give any kind of employment priority--hiring, or in the case of a layoff, retention--to U.S. citizens and permanent residents. (There is an exceptional "H-1B-dependent" category, but it is minuscule.) But it's one thing to not give priority to Americans, and quite another to actually exclude them. The latter would presumably be (reverse) discrimination on the basis of immigration status, which is illegal. Such exclusion is commonplace. It is usually hidden, but in a surprising number of cases it is overt. Those of us who study this issue have seen it for years. The Programmers Guild has filed individual complaints with the DOJ in the past. In 2000, for instance, the Adea Group announced that, "We are currently focusing on professionals with H-1B visas because they most likely have the level of experience we need for mission-critical projects and a SENSE OF URGENCY in securing new employment if they have been recently laid off" (emphasis added); in other words, they wanted to hire laid-off H-1Bs who were desperate to stay in the U.S., an interesting job qualification. DOJ ordered Adea to cease and desist. But what the Guild has done now is much smarter. They have accumulated hundreds of such cases, and filed complaints against them en masse, which brings much more attention. The enclosed articles discuss the filing. I'm enclosing first two articles on the Guild complaints, then an e-mail message from Guild founder John Miano, and finally the Web page John refers to, written by Rajiv Khanna, an immigration attorney who is representing some of the firms named in the Guild complaint. Balasubramanyam's excuse in the first article is incredibly lame. In my next message, I'll show you how the pros do it. Norm *********************************************************************** http://www.computerworld.com/action/article.do?command=viewArticleBasic&articleId=9001285 Programmers file federal complaints over 'H-1B only' ads They're upset that companies are targeting visa holders for tech jobs 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. EE Times Jun 19, 2006 03:48 PM 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. *********************************************************************** Date: Mon, 12 Jun 2006 22:53:48 -0400 From: "John M. Miano" Subject: DoL To: matloff@cs.ucdavis.edu My test of the DoL's new enforcement powers gave the results one would expect. I filed a complaint against iGate Mastech with the Wage and Hour division alleging they were not complying with the good faith recruitment requirements for H-1B dependent employers. I submitted 130 job postings containing statements of - "We provide GC Sponsorship and we do prefer H1B holders who may be interested in working with IGATE." - "Only looking for H - 1B visas and should be willing to transfer" - "Looking for a Strong .Net Developer with the following skill sets, only H-1 B holder apply, and should be willing to transfer H - 1B ." - "Only H-1s Apply , and should be willing to transfer H - 1 B" - "Only H1 visa transfers - please do not waste your time, we" The DoL responded they would not investigate because I had not provided enough evidence of a violation. john *********************************************************************** Rajiv Khanna Web page: http://www.immigration.com/newsletter1/doj_investigation.html Home --> DOJ Investigations of Employers for Immigration Ads 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. DOJ is likely to take discriminatory ads very seriously. We will keep you all informed about the outcome of these matters and whether DOJ has any legal grounds for action and if so the legal parameters of the issues involved.