The IEEE-USA plans to tell its members to complain to the U.S. Department of Justice if foreign workers have replaced them. In doing so, the engineering group, which has some 200,000 members, is attempting to open up a new front over H-1B-enabled job displacement.
The association is being prompted, indirectly, by a recent Department of Justice (DOJ) letter that raises the possibility that the offshore outsourcing business model, which relies heavily on foreign workers using temporary visas, discriminates against U.S. citizens. Further, the U.S. worker may be required, as a condition of severance, to train his or her replacement.
The engineering group will be "encouraging anybody who has been fired and replaced by an H-1B -- and we know there are quite a few of them -- to speak up," said Russ Harrison, the IEEE-USA's director of government relations.
The IEEE-USA wants these workers to file discrimination complaints with the DOJ, as well sign a petition. The intent is to spark legal action by the DOJ.
"We think this course of action has a lot of merit," said Harrison. Offshore outsourcing companies are "deliberately choosing to hire non-Americans instead of Americans and that is the definition of discrimination," he said.
The DOJ's Office of Special Counsel for Immigration-Related Unfair Employment Practices said, in a letter issued late last month, that except in narrow circumstances, the termination of workers and their replacement by a non-citizen, or someone on a work visa, is discriminatory.
The DOJ has been largely on the sidelines on the question of discrimination in IT worker displacements. But the IEEE-USA sees the DOJ's letter as an opening for action.
The DOJ's letter was prompted by former state Rep. Bruce Morrison (D-Conn.), who represents the IEEE-USA. In November, he sent a "technical assistance letter" to the DOJ, posing questions about "citizenship discrimination" under the Immigration and Nationality Act.
The DOJ wasn't obligated to answer Morrison's request for interpreting the law, but it prompted a response from Alberto Ruisanchez, deputy special counsel at the department.
The DOJ letter also says that the company that hires the contractor "could be considered a joint employer," meaning that the firm that engages an IT services firm that uses mostly H-1B workers and other foreign workers may have liability for this discrimination as well as the contractor.
"The business model raises a serious question of discrimination against U.S. citizens," said Morrison.
In the last few years, discrimination in offshore outsourcing has been getting far more attention in lawsuits and public discourse. The question, broadly, is how a firm can hire, almost exclusively, H-1B workers and foreign nationals and then use those workers to replace U.S. workers already on the job.
The DOJ gives U.S. workers six months to file a discrimination complaint after losing a job.