A Trifecta of Non-Immigrant Worker Programs

By David North, August 20, 2013

There have been three little-noticed (in the United States) actions recently about the non-immigrant worker programs that have denied so many jobs to American workers.

A U.S. shipbuilding firm in the South has been charged in our courts with "enslaving Indian workers"; a brave American lawyer in the North is trying to use the class action approach to attack the H-1B program; and a major U.S. user of the H-1B program is laying off U.S. workers while seeking to expand the flows of H-1Bs.

H-2B in the South. The most dramatic of these events is a set of five charges filed in Texas and Mississippi attacking the abuse of Indian workers in the H-2B program by Signal International, a shipbuilding firm.

"US shipbuilder faces five more charges of enslaving Indian workers" says the headline in the Indian press.

The all-too-familiar substance of the charges is that the Indian workers were recruited, after paying exorbitant fees in that country, to work in the shipyards. They were subsequently forced to work under "barbaric conditions" and were forced into "modern day indentured servitude". The list of grievances is detailed and depressing.

A total of 500 workers were victimized in this way, according to the suits filed in various courts.

The H-2B programs is for unskilled, non-agricultural workers; it is used less extensively than the H-1B program, which is for skilled (usually college graduate) workers.

Unfortunately, these suits in the South are a follow-on to another set of suits, set in motion by the Southern Poverty Law Center, which is a reliable opponent of nonimmigrant worker programs but completely wrong on the question of a broad amnesty for illegal aliens.

I say unfortunately because these cases, on behalf of individual H-2B workers, had to be filed in that way because an earlier attempt by law firms enlisted by SPLC had failed. Those firms had tried to use class action suits, but these have been made more difficult generally by an employer-loving Supreme Court majority.

Disclosure: I have a bit of a bias in favor of class action suits as a technique for the little guys to level the playing field against the big guys once in a while. My Yale Law grad step-daughter, who practices in Denver, Amy Robertson, often uses class action suits to help the disabled fight corporations under the Americans with Disabilities Act (ADA).

H-1B in the North. Speaking of class action suits, an Appleton, Wisc., law firm, Peterson, Berk, and Cross, has filed such a suit against Infosys, the gigantic Indian outsourcing firm, for failing to hire a totally qualified (they say) U.S. worker while hiring thousands of H-1Bs. They have brought the suit on behalf of other, similarly situated U.S. workers according to the Chicago-based advocacy group, Bright Future Jobs.

Class action suits, as I have learned from my step-daughter, take years and are resource-draining for the firms that mount them, so don't expect a follow-on report from me on this case for a long time. I wish the Wisconsin firm well, but worry about how this will turn out, given the SPLC's experience.

Indian-owned Infosys is a major user of the H-1B program. According to one data source, it secured 1,191 H-1B Labor Condition Applications (LCAs) in 2012, and a staggering 15,810 this year. Getting the LCA is the first step toward securing a foreign worker, and while firms tend to file about three LCAs for every foreign worker visa they secure, each visa lasts for three years. So Infosys has many thousands of H-1Bs on its payroll.

Infosys takes these suits seriously and uses its huge resources to fight them vigorously. There was the fairly recent case involving a citizen whistle-blower, Jack Palmer, who sued the company for H-1B-related abuses. The company told him to work at home, gave him no work to do, but kept him on full salary (presumably as public relations move). The company won the case and, the last I heard, has left Palmer on the payroll, again with no work and with no access to the company computer.

Palmer may have a life-time job that is both unfulfilling and undemanding and Infosys continues along its merry way.

Cisco Nationwide. Another IT firm and H-1B user, U.S.-owned Cisco Systems, has announced that it is laying off 4,000 presumably American workers from its 100,000-member work force, while reporting increasing profits.

Cisco is conducting these lay-offs at the same time as it continues to hire H-1Bs. (It was certified by the Department of Labor for 335 LCAs for the year 2013 and is financially supporting Facebook billionaire Mark Zuckerberg's massive public relations campaign on behalf of more foreign workers.)

Padmasree Warrior, Cisco's chief technology and strategy officer, is listed along with Google's Eric Schmidt and other IT executives as among the "major contributors" to FWD.us, the Zuckerberg effort to substantially increase the number of H-1B workers coming to the United States. For more on this slick campaign see the recent posting of my colleague Jerry Kammer.

So while a few embattled defenders of American workers against alien worker programs take to the courts to shrink the programs, the fat cats in the IT industry are spending some of their millions to influence the legislative branch to open the gates still wider.