What to Do about Corporate H-1B Abusers

By Dan Cadman on October 31, 2019

My colleague David North recently authored a posting entitled "Grab a Cab — Don't Call H-1B-Users Uber and Lyft", laying out how these two companies are taking advantage of the H-1B program to employ cheap foreign labor in lieu of U.S. citizen and resident workers.

In fact, Uber is following the scandalous behavior of several corporations before it, including Disney and Southern California Edison, among others, by going further and actually firing dozens of U.S. citizen and resident workers even as it replaces them with imported H-1B "temporary" workers. Whether this is also happening at Lyft, I don't know, but I wouldn't bet the inheritance that it isn't.

This reprehensible conduct was made possible thanks to the largesse of the federal government, specifically U.S. Citizenship and Immigration Services (USCIS), which granted a cornucopia of approved H-1B petitions to the two ride-sharing corporate giants. The more I ponder this, the more outraged I become. What could they be thinking at USCIS? Where is the "Buy American, Hire American" Trump administration in all this? To quote the president at the time he signed his executive order on the importance of focusing on American industry and jobs:

In just a few moments, I will be signing a Buy American and Hire American executive order. You haven't heard about that in a long time in this country. With this action, we are sending a powerful signal to the world: We're going to defend our workers, protect our jobs, and finally put America first. [Emphasis added.]

Were those just words?

It seems to me that USCIS continues its profligate handout of H-1B slots with minimal time and effort apportioned to determining the bona fides of the claims underlying the petitions. Too many times, temporary worker programs are simply being used to outsource American jobs. And, all too often, the fired citizen and resident workers are subjected to the final indignity of having to train their foreign replacements even as they are being pink-slipped. Not only that, but the outsourcing involves importation of those workers to this country, not simply retaining foreign firms to provide staffing for call centers or software development or the like in other countries. It's the worst of both worlds. As my boss Mark Krikorian has often noted, where our broken immigration system is concerned, there's nothing so permanent as a temporary worker. Once here, they remain for decades.

So what's to be done? I can think of four things without breaking a sweat.

First, USCIS, when confronted with evidence of replacing American workers (as opposed to augmenting them for a "temporary" period, which is what the program is supposed to do when used properly) should rescind the petitions.

Second, USCIS should establish a hotline to capture and systematize complaints of abuse of the H-1B system by employers who use them to replace citizen and resident workers so that these complaints can be investigated (see below) and also used as a reference point when adjudicating future petitions by the offending companies.

Third, USCIS should work cooperatively with ICE to determine whether the petitions contain misrepresentations or withhold material facts that would constitute evidence of fraud and false statements in a prosecution for visa fraud (see 18 U.S.C. Section 1546) — and ICE's Homeland Security Investigations division, infamous for its frequent unwillingness to do much substantive immigration benefits investigative work, should be obliged to play nice in the sandbox with its bureaucratic cousin.

Fourth and finally, the government should consider instituting proceedings against the offending corporation under 8 U.S.C. Section 1324b, the "Unfair Immigration-related Employment Practices" statute, which prohibits discrimination against "protected individuals" who are defined as United States citizens, nationals, resident aliens, asylees and refugees. Subsection (b) of the statute asserts in relevant part that:

any person alleging that the person is adversely affected directly by an unfair immigration-related employment practice (or a person on that person's behalf) or an officer of the Service [the defunct Immigration and Naturalization Service, now replaced by the Department of Homeland Security and its subordinate immigration agencies] alleging that an unfair immigration-related employment practice has occurred or is occurring may file a charge respecting such practice or violation with the Special Counsel. [Emphasis added.]

Were the government to take these steps, you can bet that every H-1B user in the country, along with their middleman giants such as Infosys, that happy purveyor of humans to the U.S. corporate world, would sit up and take notice, and began to calculate corporate (and the executives' personal) liabilities verrrry carefully. That's an important message to send.

We live in extraordinary times. The president has repeatedly insisted that he will protect American jobs. He has also made reform of the immigration system one of his signature initiatives. He hired a new director at USCIS, Ken Cuccinelli, because he wanted to see that organization take a hard look at its entrenched methods of doing business, which in recent years has all too often included a "get to yes" mentality instead of exercising a close and careful look at whether the interests of the American public were being well served in its various benefits programs.

Time to put meaning to the words, Mr. President. Mr. Cuccinelli, the ball's in your court. Don't take "yes" for an answer.