H-1B employers face stricter rules

More federal scrutiny, investigations and threats of lawsuits

The federal government is doing something it has never done before: It's encouraging people to file H-1B abuse complaints.

This week the U.S. Department of Justice (DOJ) and Department of Labor each posted information about how to file a complaint against suspected H-1B abuse. It's a clear signal that government scrutiny of H-1B use will intensify and that the U.S. may challenge employers.

But it creates a dilemma aptly summed up by Norm Matloff, a professor of computer science at the University of California at Davis, in a blog post titled, "American Victims of H-1B Get Their Chance -- Will They Take It?"

There's good reason to believe that they won't.

Many workers have been reluctant to file complaints. This includes H-1B visa holders who have been hurt by the system, but especially U.S. workers who have been displaced by it. This problem was illustrated by the Southern California Edison (SCE) layoffs in 2015.

The Labor and Justice departments were asked by 10 U.S. senators to investigate the SCE layoff. Many of those IT workers had trained foreign replacements, but not one of the affected employees had complained to the Labor Department. A Labor official said it couldn't begin an investigation because it had "not received a complaint from an aggrieved party or a credible source."

The other problem is the law itself. The DOJ ended its investigation at Edison after determining that the company hadn't done anything wrong. Critics argued that both departments were misinterpreting the laws.

One of the critics of this lack of action was Sen. Jeff Session (R-Ala.) who is now the U.S. Attorney General, appointed by President Donald Trump.

On Monday, the DOJ issued a statement advising employers "seeking H-1B visas not to discriminate against U.S. workers." It was clear warning of future lawsuits over displacements.

The DOJ has never brought a lawsuit over IT worker displacements. The IEEE-USA has been arguing that the replacement of U.S. workers by visa holders is a form of discrimination.

The Labor Department followed with a particularly strong statement Tuesday.

It promised to "rigorously use all of its existing authority to initiate investigations of H-1B program violators," as well as work closely with other departments, including the DOJ.

It also promised to change the Labor Condition Application (LCA) "to provide greater transparency for agency personnel, U.S. workers and the general public." The LCA data is instrumental to discovering the work site locations of H-1B workers as well as their salaries.

The increased coordination is made clear by email address. People who wish to report abuse to the Labor Department will contact this agency through the U.S. Citizenship and Immigration email address. The Justice Department has a worker hotline.

The question will be whether these government efforts at outreach will encourage affected workers to report abuse.

IT workers have long worried about jeopardizing severance terms or hurting re-employment chances if they complain. H-1B visa holders who want to report abuse may fear risking their ability to stay in the U.S.

The Trump administration is nonetheless encouraging this reporting.

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