The Internal Workings of Anti-Citizen Discrimination in the H-1B Setting

By David North on May 2, 2020

A new insight has emerged that helps explain why so many high-tech jobs have been taken from citizen and green card workers through the H-1B program.

You might say that many U.S. employers are engaged in a 6-D maneuver; they are using H-1B for double-dip discrimination in order to secure a docile, deeply discounted, alien workforce. Wordplay aside, H-1B is the nonimmigrant program for skilled workers, usually college graduates, that has close to one million aliens in it at any given time.

I have long wondered how the employers have gotten away with two levels of discrimination; first there is the bias against U.S. workers, when the employers (with Homeland Security accepting it) hire H-1B workers from overseas; then, in the second step, the big Indian outsourcing firms — with the whole world to hire from — decide that some 97 percent to 99 percent of the work force should be recruited from among young, South Indian males, a largely Hindu population. These biased practices within the H-1B program have been thoroughly documented.

I keep hearing, from various sources (including a highly skilled IT worker who is neither an Indian nor in his twenties) that virtually all of the personnel people in high-tech are also Indian nationals or of Indian descent — the accent is always there, he says of his phone conversations with human resources.

It was within this setting that I learned of another bias-enabling wrinkle in the system. Again, an over-50 citizen high-tech worker, a different one, did not get a job he felt he was fully qualified to fill; he was not hired because — I would say brazenly — the hiring entity's advertisement called for: "Immediate need of Indian OPT/H 1/CPT candidates for our W-2 for multiple locations for Contract roles".

That sounds like two acts of discrimination in two consecutive words. Stipulating "Indian" is bias on grounds of ethnicity or national origin, and calling for "OPT" is bias on the grounds of citizen status. OPT stands for Optional Practical Training status, something that only an alien graduate of a U.S. university can secure.

The citizen, whom I know to be highly skilled with complex datasets, then filed a complaint against a small recruiting firm, filing it with the Immigrant and Employee Rights Section (IER) of the U.S. Justice Department.

He was then told by IER that the firm was exempt from the anti-discrimination rules because it had three or fewer employees. He has appealed this decision to a very obscure federal agency, again within DOJ, the Office of the Chief Administrative Hearing Officer (OCAHO). We will publish the names of those involved once a decision has been made. One pronounces the name of the appeals body "O Kay O", he told me.

The citizen's argument is that the recruiting agency, no matter how small, was acting on behalf of a larger organization

I have three comments. First, the story of the big employer shedding complaints of discrimination or worker abuse because somebody else is, allegedly, doing the abusing, somebody who is beyond legal reach, rings too many bells. When I was working with the U.S. Labor Department on farm labor matters, decades ago, the pattern was that when the workers complained of illegal treatment, the mega corporations in agri-business would always say "but we do not employ the farm workers, the crew leader does." The crew leaders were both minnows with no assets, and thus could not be sued, and could be easily replaced by the corporations.

Second, this citizen has uncovered yet another stratagem used by the outsourcers and other employers to perpetuate their discriminatory schemes: Turn over the task of hiring to entities too small to be sued by the feds. This, plus the existence of the massive H-1B program and the ability of the big outsourcing firms using it to avoid discrimination charges when using that program means that U.S. workers never have a chance.

Third, while I hope OCAHO will do the right thing in this instance, the past performance of this tiny agency (the last time I looked it had exactly two hearing officers) is not that of a staunch supporter of the American worker.

When I last wrote about it, its primary role in life seemed to be to reduce the fines that Immigration and Customs Enforcement laid on employers of illegal aliens. Another thing OCAHO was doing at the time was fining employers who, while seeking to obey the ban on hiring illegal alien workers, asked the alien workers for too many documents.