DoJ Zaps Discrimination vs. U.S. Citizens, but Very Rarely

By David North on May 20, 2011

The Good News is that an H-1B employer has been penalized by an obscure Justice Department entity for discriminating against U.S. citizens.

The Bad News is that this small agency, in the last 13 years, has publicized actions of this kind only five times, while issuing press releases on taking action against employers who discriminated against foreign-born workers 25 times.

Our research was based on the list of press releases issued by the agency since February 18, 1998, which we assume is a complete list. We also assume that these documents accurately represent both the work of the agency, and its inclinations, which may not be correct.

The full name of the tiny agency is the Office of the Special Counsel for Immigration-Related Unfair Employment Practices; it is within the Civil Rights Division.

Its mission, according to one of its press releases, is to enforce "the anti-discrimination provisions of the Immigration and Nationality Act (INA), which protect U.S. citizens and certain work-authorized individuals [i.e., the foreign born] from citizenship status discrimination. The INA also protects all work-authorized individuals from national origin discrimination, over-documentation in the employment eligibility process [i.e., I-9], and retaliation."

We at CIS see a constant flow of ads, mostly in technical publications, that say H-1B applicants are preferred or that only people with H-1B visas are eligible for these jobs, but only two of the OSC press releases have referred to the H-1B preference, one issued earlier this week, and the other on May 1, 2008.

Here is an example of such an ad:

HIRING OPT/CPT/H1 Transfers in JAVA / C#.Net / DBA
GSS Infotech is a pioneer in providing Managed IT Services, head quartered at Hyderabad, India. Founded in 1999, GSS operates worldwide through its offices in India, Singapore, Middle East, and the USA . . .
Sreenath GSS Infotech Inc Phone: 847-307-7606 Ext 265 1699 Wall Street, Suite 201 Mt. Prospect, IL - 60056

I am told by my colleague John Miano that while this ad was on the web when he sent it to me yesterday, it would immediately disappear when we published it; in other words, a hot ad.

Returning to the OSC press release list, we found that there were 30 entries, or a fraction more than one every six months, which suggests its level of activity. Since one of the releases dealt with two companies (with identical hiring practices) there were 31 enforcement situations. In one, OSC took action against a firm that discriminated against non-Koreans, which we set aside for these statistical purposes.

In the other 30 actions, 25 were on behalf of aliens or, rarely, foreign-born naturalized citizens, and in most of these the employers' "discrimination" consisted of overly-zealous enforcement of the I-9 regulations on documentation needed by non-citizen workers.

The other five – over a period of 13 years – dealt with discrimination against U.S. citizens, in two cases within the H-1B program for high tech workers, one in H-2A program, for farm workers (more precisely onion harvesters), one in the H-2B program, for non-farm laborers, and the fifth dealt with an employer who wanted to keep an illegal, now on his staff, rather than hire a citizen.

The most recent case was a settlement with software developer, Iflowsoft LLC of Iselin, New Jersey, (just north of Perth Amboy). According to the press release the firm "posted several job advertisements for IT professionals expressing a preference for temporary visa holders (specifically H-1B transfers and/or OPT candidates). The facially discriminatory advertisements deterred the charging party, a U.S. citizen, from applying to Iflowsoft . . ."

By seeking these kinds of candidates, as the press release does not state, the employer not only would get a presumably docile foreign worker, it would also get, if the worker were an H-1B transferee, a worker outside the annual 65,000 and 20,000 ceilings for this program; further, were the worker to be in the OPT (Optional Practical Training) category, a subset of F-1 student visa holders, the employer would be getting an up-to-$10,000 discount, because the employers of such workers do not have to pay Social Security and Medicare taxes, as discussed in an earlier blog of mine. (CPT, which is mentioned in the ad above, is another part of the OPT program.)

H-1B employers and their workers pay the typical Social Security and Medicare taxes.

Unfortunately, the settlement with Iflowsoft was a soft one; the firm had only to pay $6,400 in civil penalties to the government and "$7,158.45 in back pay to two U.S. citizens who were qualified for the positions advertised and applied for, or would have applied for, the positions."

If you compare the dollar figures shown above, you would see that if the Iflowsoft ad produced a single OPT worker, the company would be losing $13,558.45 but gaining $10,000, for a net loss of $3,558.45. If the ad produced two such workers, however, the company would be ahead a net of about $6,500, despite the OSC intervention.