H-1 B Program Grace Notes

By David North on April 25, 2012

There is so much going on with the H-1B program that it's worth taking another look at recent developments.

I-9 "Errors". We learned from a Reuters story written in Mumbai that Infosys, the big software firm and massive user of H-1B workers, is being investigated for I-9 "errors" by the Department of Homeland Security.

The story reads: "The Department of Homeland Security is reviewing the employer (sic) eligibility verifications on Form I-9 said NASDAQ-listed Infosys in an April 18 filing on the U.S. Securities and Exchange Commission … 'In the event that any government undertakes any actions which limit any visa program that we utilize, or imposes sanctions, fines, or penalties on us or our employees, this could materially and adversely affect our business and results of operations' the company added."

I find it fascinating that Infosys feels obliged to report this action to the SEC. It must fear that its actions are dangerously out of keeping with U.S. law or it would not file such a report. Or maybe it is just trying to stir up its stockholders against the government.

This is just the latest legal problem experienced by the big firm. As I reported in blogs recently, it has been charged in one federal court with violating the law by bringing in workers on B-1 visas, which do not permit employment. In another federal court the charge is sexism in employment practices. A third case on age discrimination was settled, with Infosys presumably paying a substantial sum to the U.S. citizen engineer it did not hire.

The B-1 matter was the subject of an extended CBS-TV network-wide news account, which was surprising as nonimmigrant worker programs rarely are mentioned on TV news.

Are there any federal labor laws not yet broken by Infosys?

WTO Suit on H-1B Fees? Some of the best reporting on the H-1B system comes out of India, such as the story cited above, and one by an Indian website Ebizexpand on India's proposal to take the United States to the World Trade Organization over the level of fees charged to some firms for H-1B visas.

The argument is that fees are higher for the H-1B-using body shops than they are for other corporate users, with the bodyshops being largely Indian-owned and the other corporations U.S.-owned.

That such an internal decision, made by the U.S. Congress, should be subject to possible reversal by an international body is just another reminder that it is not a good idea to surrender immigration policy making to bodies other than the U.S. Congress. Had a treaty not been signed dealing with immigration issues (the WTO agreement), the United States would not be in that situation.

Limit on H-1B Teachers in Charter Schools Advances. In an earlier blog, I mentioned that the Tennessee State Senate had passed a bill limiting the number of foreign (presumably H-1B) teachers in a charter school to 3.5 percent of the faculty. This unusual bill then passed the State House of Representatives, presumably in reaction to a planned Gulen school in the state. (Gulen, a remarkable creator of charter schools, as previously reported, tends to do much of its hiring in Turkey and uses the H-1B system extensively.)

A recent news story indicates that Gov. Bill Haslam is having second thoughts about the bill, on the grounds that it makes his state (remember the Scopes trial?) look less than cosmopolitan.

My Own Under-Reporting of H-1B Usage. In response to my blog "A Little Bit of Nationalism, Please: Or Which of Those are U.S. Firms?" reader Ray Marr took me to task for failing to fully state the extent to which firms such as Infosys use (and abuse) the H-1B program. He wrote:

At the risk of being too "helpful", let me say that one sentence grated on me: "The thought came to me when I looked over a months-old Computer World article by Patrick Thibodeau titled 'The top 10 H-1B visa users in the U.S.' and noticed the names of the top five users (apparently in FY 2011): Cognizant: 5,715; Infosys: 4,042;Wipro: 2,817; Tata: 1,758 and Larsen & Toubro: 1,608."

Not that there was anything factually wrong with it, but that the opposition has made it so hard for us to accurately convey the true enormity (and size) of these body shops' use of H-1B visas — operating with apparent freedom from EEO requirements of age, gender, and national origin. Most readers will assume from this that the top five H-1B sponsors for FY 2011 only imported 16,000 people on H-1B visas, while the true number [used] is likely six or more times as great, since the visas are three-year visas automatically renewable for another three years and only the H-1B visa petitions first awarded in FY2011 are reported in those FY2011 numbers.

Good point.

In addition to the two three-year visa periods, an employer who has filed a green card application for a worker — not that the bodyshops do that very often — can keep the worker in H-1B status until the green card arrives.