IT Employers' Coded Ads: "No Americans Need Apply"

By David North, July 11, 2012

Suppose you are a computer programmer, and a citizen, and you are looking for a job. You are reading the classified ads where information technology firms advertise for people with your skills. You see an ad with this headline: "Hiring OPT/CPT/L2 EAD/TN/H1 candidates for Full Time".

You will probably ignore the ad because the initials mean nothing to you, even though had you looked closely in the small print you would have found a reference to your skills.

You, the citizen and the qualified worker, would be doing exactly what the purchasers of the ad wanted, because they are not looking for citizens or green card holders; they want not only foreign-born workers, but more specifically foreign-born nonimmigrant workers. Each of the initials in the heading relates to a different temporary work visa or document.

This practice is common in the information technology industry and it means, in effect, "No Americans Need Apply", according to a report released last week by Bright Future Jobs (BFJ), an advocacy group led by Donna Conroy.

The ad's headline above is a real example of this kind of corporate trickery, and is quoted in the cited report.

The BFJ report examined a collection of 100 classified ads on dice.com, which it describes as a "prominent U.S. technology job portal". Each of these ads included one or more of the visa initials (i.e., code terms).

Computerworld, in an article last week on Ms. Conroy's study did some research of their own on the subject, stating:

A search on Dice.com Thursday found more than 300 job listings for OPT jobs. OPT stands for Optional Practical Training, a visa program for recent foreign graduates of U.S. colleges. There were more than 160 job listings for H-1B visa holders, and more than 200 listings for CPT (Curricular Practical Training) visa holders. CPT is a job program for foreign students enrolled at U.S. colleges.

Those types of ads are 'discriminatory' against U.S. workers, Conroy said.

To complete the decoding of the terms in the ad quoted above: L-2 visas are for spouses of L-1 alien workers, who, in turn, are employed by multi-national firms; both L-1s and L-2s can work in the United States. EAD stands for employment authorization document, which USCIS issues to those nonimmigrants it regards as legally eligible to work in certain visa categories; and TN is a work visa, largely for Canadians, created under the North American Free Trade Act. To employers, one of the attractions of the visas, other than the H-1B, is that the employer does not have to pay an application fee to hire an alien holding such a visa.

A double attraction to employers, in the OPT and CPT categories, is that they not only do not have to pay an H-1B fee to USCIS, they also do not have to pay the normal payroll taxes, thus depriving the Social Security and Medicare Trust funds of badly needed revenues, a subject we covered in a newly-published Center for Immigration Studies Memorandum, How Employers Cheat America’s Aging by Hiring Foreign Workers.

Ms. Conroy told me in a phone conversation last month that the Office of Special Counsel, a small unit in the U.S. Department of Justice that is supposed to enforce the law regarding discrimination against workers because of their citizenship, does not regard these ads, nor does Dice.com, as illegal.

I do not disagree with her on the Special Counsel's reading of the situation, as that office is much, much more interested in making sure employers do not ask too many questions of its alien workers than anything else. It rarely brings a case regarding discrimination against citizens; their cases are virtually all on behalf of aliens.

It would be useful if a private or pro bono lawyer raised this issue in court, as it seems to be perfectly obvious that the objective of these ads is to steer U.S. citizens away from applying, and that should be illegal discrimination.

If an employer is looking for computer programmers in anything like an unbiased way, the employer should advertise for the skills needed, not for extraneous matters such as the visas held by the applicants or their hair color.

Where is the civil rights bar when we need it?