Southern California Edison Workers Just More H-1B Roadkill

By John Miano on February 9, 2015

Over the years it has become so common for companies to replace Americans with H-1B workers that the practice makes little news now. A few days ago we learned that Disney was H-1B-ing American programmers and it only made the local news in Orlando. That has not been the case at Southern California Edison, where the story got picked up by the Drudge Report.

Immigration lawyers are now in BS reaction mode. The Americans being fired should sue for discrimination or complain to the Department of Labor. Yet immigration lawyers know full well that such actions would be futile for they are the ones who have gone to extreme lengths to ensure that replacing Americans with H-1B workers remains legal.

Here is that the law that applies when companies like Tata and Infosys supply H-1B workers to a company like Southern California Edison. A company making a Labor Condition Application must certify to this:

8 U.S.C. § 1182(n)(1)

(F) In the case of an application described in subparagraph (E)(ii), the employer will not place the nonimmigrant with another employer (regardless of whether or not such other employer is an H–1B-dependent employer) where—

(i) the nonimmigrant performs duties in whole or in part at one or more worksites owned, operated, or controlled by such other employer; and

(ii) there are indicia of an employment relationship between the nonimmigrant and such other employer;

unless the employer has inquired of the other employer as to whether, and has no knowledge that, within the period beginning 90 days before and ending 90 days after the date of the placement of the nonimmigrant with the other employer, the other employer has displaced or intends to displace a United States worker employed by the other employer.

The trick here is that this restriction only applies to an "application described in subparagraph (E)(ii)". That reads:

8 U.S.C. § 1182(n)(1)(E)

(ii) An application described in this clause is an application filed on or after the date final regulations are first promulgated to carry out this subparagraph, and before [8] by an H–1B-dependent employer (as defined in paragraph (3)) or by an employer that has been found, on or after October 21, 1998, under paragraph (2)(C) or (5) to have committed a willful failure or misrepresentation during the 5-year period preceding the filing of the application. An application is not described in this clause if the only H–1B nonimmigrants sought in the application are exempt H–1B nonimmigrants.

Here there is yet another level of indirection. We find that the nondisplacement requirement of 8 U.S.C. § 1182(n)(1) only applies when the employer is H-1B-dependent and the worker is not an "exempt H-1B nonimmigrant". So now we have to travel to 8 U.S.C. § 1182(n)(3) where we find the definition for the latter:

(B) For purposes of this subsection—

(i) the term "exempt H–1B nonimmigrant" means an H–1B nonimmigrant who—

(I) receives wages (including cash bonuses and similar compensation) at an annual rate equal to at least $60,000; or

(II) has attained a master's or higher degree (or its equivalent) in a specialty related to the intended employment; and

(ii) the term "nonexempt H–1B nonimmigrant" means an H–1B nonimmigrant who is not an exempt H–1B nonimmigrant.

That means that if the H-1B worker has any master's degree or higher or is paid more than $60,000, then American workers can be displaced at will.

That is no hurdle to overcome. In Los Angeles, the average wage for a computer programmer is $91,624. The lowest an employer is allowed to pay an H-1B programmer in Los Angeles is $55,245. Jack that up a bit to $60,000 and Americans can be replaced. Or simply hire someone with one of the notorious Masters in Computer Applications degrees dished out by Indian diploma mills. Either method makes it is perfectly legal to replace Americans.

You can see from the text above that the law is deliberately convoluted to conceal from the casual reader what it is actually doing. It was written by immigration lawyers for immigration lawyers. The only reason for the faux outrage from immigration lawyers (and H-1B cheerleaders) is that this story about a routine practice has made them news. They know that the workers at Southern California Edison are screwed because they have gone to extreme lengths to ensure the law is written that way.

The companies supplying H-1B workers hire big law firms to do their visa processing. The Americans working at Southern California Edison stand between immigration lawyers and their legal fees. Therefore, American workers are expendable.

In regard to discrimination, the United States has employment at will. An employer can fire anyone for any reason or for no reason at all, with certain policy exceptions. California prohibits discrimination based on:

  • Ancestry
  • Age
  • Color
  • Disability
  • Genetic information
  • Gender, gender identity, and gender expression
  • Marital status
  • Medical condition
  • National origin
  • Race
  • Religion
  • Sex
  • Sexual orientation

"Because we could get workers cheaper outsourcing to Infosys and Tata" is not on that list. Southern California Edison, like all the others before it, would not have a problem defending a discrimination suit.

This garbage has been going on since at least since 1994. Yet Congress has done nothing about H-1B abuse other than to make it easier to do.

The American workers at Southern California Edison are just more road kill from our immigration system.