Abuse in the H-1B system at the hand of H-1B employers
Is it still present in today’s market conditions?
This year has been a strange one. Those of us in the immigration community had bets whether the H-1B cap would be reached by April 1, with most of us betting that it would not. Such prediction has come true for, as of this date, there are still cap subject H-1B numbers available. So, the next question is: will the prior abuse in the H-1B employer community continue to exist in this new economic market?
What type of abuse? The abuse based upon the less stellar qualities of human beings—our greed to make money, at all costs. For years it has been a not so closely guarded secret that the H-1B system has seen great abuse by employers, especially by Indian employers in the IT community. Of course, many Indian owned IT companies are excellent, ethical, law abiding H-1B employers. However, it is those that are not who are the subject of this article and should be the subject of more targeted DOL investigations, for they are the types of companies that give the H-1B system a bad rap.
These non-compliant H-1B employers know the rules; many have themselves been through the H-1B visa process before moving on to the envied status of Lawful Permanent Resident and finally U.S. citizen. How quickly they have forgotten the agony and vulnerability of having their entire lives depend upon an H-1B employer and how quickly they have been to hold their H-1B employees “hostage” to such need. These employers, having founded their own IT companies, know and understand that they must pay their H-1B employees the “prevailing wage”, the wage determined by the DOL to be the going rate in the geographical area for that occupation, as set forth in both the Labor Condition Application and H-1B petition itself. This salary must be paid for the life of the H-1B petition, usually three years, with extensions possible, no matter what happens. If an H-1B employer cannot afford to pay such wage, it has the obligation to notify the DOL and USCIS of such material change in employment by filing an amended H-1B petition or terminating the H-1B employee and again notifying both the DOL and USCIS of this change. The H-1B employer is also required to pay the reasonable costs of transportation for the H-1B employee to return home.
Is this happening in our non-compliant Indian “job shop” companies, especially in the down turned IT market? Not over the last few years. Instead of terminating employees as the law requires when there is no longer work, many company owners have been “benching” their employees, sending them to the sidelines to await possible work, without pay, so that the company has a “stable” of horses—H-1B workers—ready to go if a job contract comes in. Some of these companies have gone one step further: they have ordered their H-1B employees, who they promised work, to find their own jobs and to have such jobs billed through the H-1B company. When the H-1B employees can’t or refuse to do so they threaten to fire the employee and notify USCIS that their immigration status has been terminated. Of course, this is completely against the H-1B laws. Moreover, it hurts U.S. workers because these desperate H-1B employees will work for next to nothing, with the hope that they will soon find new H-1B employment and be able to leave their abusive H-1B employer. Even worse, those who want to return home cannot do so because they lack the funds to pay for their return transportation and hence they remain, in complete financial ruin and poverty, in the U.S.
With the decline in the amount of H-1B applications submitted by IT companies hopefully these past abuses will also decline. Clearly, the H-1B program is a necessary and critical tool for American businesses to remain globally competitive. However, as Congress discusses immigration reform, part of any package should and must be more money for USCIS and DOL H-1B enforcement agents so that the integrity of those employers who correctly utilize the H-1B program can be protected.