FISSURES IN THE VALLEY: SEARCHING FOR A REMEDY FOR U.S. TECH WORKERS INDIRECTLY DISPLACED BY H-1B VISA OUTSOURCING FIRMS.

Author:Geisler, Kenneth M., II
 
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INTRODUCTION

"If I could just change one law," lamented Bill Gates, "it would be this." (1) What law provokes the ire of the Silicon Valley titan and co-chairman of the world's largest philanthropic organization? (2) Hint: it was at the center of a publicity maelstrom that struck the happiest place on earth--Walt Disney World (3)-as well as one of California's largest power utilities, Southern California Edison (SCE). (4) In 2015, reporters revealed that Disney and SCE laid off (5) hundreds of their U.S. technology workers (6) and replaced them with foreign visa workers supplied by outsourcing firms in an effort to cut IT information technology) labor costs. (7) Rather than denying the allegations, (8) Disney and SCE argued that they had followed the letter of the law. (9) Unfortunately, the law is on their side. At issue was section 101 (a)(15)(H)(i)(b) of the Immigration and Nationality Act (INA), (10) a law that facilitates the country's most commonly utilized (11) and most contentious, highly-skilled foreign worker program (12)--the H-1B visa. (13) The majority of H-1B workers are young males born in India working in computer-related occupations--the industry that depends the most on foreign labor. (14)

Layoffs such as those at Disney and SCE "had occurred numerous times over previous years, with little public comment." (15) Outsourcing firms, both in the U.S. and India, have a history of discriminating against American job applicants, (16) exploiting H-1B visa holders, (17) and commandeering immigration law to maximize profits. (18) Outsourcing firms sponsor visas for foreign workers, who are then contracted out to U.S. client companies. The clients in turn hand their U.S. tech employees the pink slip (19) and oftentimes a Hobson's choice: severance pay conditioned upon '"knowledge transfer,' an ugly euphemism for being forced to train their foreign replacements," (20) or nothing.

Political discourse and legal scholarship tends to view immigration in terms of undocumented aliens (21) or those who are allowed entry via lowskilled nonimmigrant worker visas (e.g., H-2A or H-2B visas). (22) Virtually all previous scholarship on the H-1B program has been devoted to proposing reforms to its legislative labyrinth. (23) But a lack of data has only fueled heated debates that have shed little light on the dollars-and-cents of the H-1B visa. (24) This Note instead takes the distinct approach of analyzing potential remedies (25) for U.S. tech workers who allege their U.S. employer replaced them in favor of H-1B workers supplied by outsourcing firms. Part I explains how the H-1B program's protections--specifically, the labor condition application process (LCA) and its administrative remedies--have failed to hold employers accountable for discriminating against their U.S. tech employees. (26) Part I concludes that the failures of the visa's statutory regime necessitate a discussion of alternative remedies.

Part II analyzes the viability of claims brought under federal statutes: namely, the civil provisions of the Racketeer and Influenced Corrupt Organization Act (civil RICO), (27) the Immigration Reform and Control Act of 1986 (IRCA), (28) Title VII of the Civil Rights Act of 1964 (Title VII), (29) and section 1981 of the Civil Rights Act of 1866 ([section] 1981). (30) Part II concludes that among these alternatives, Title VII and [section] 1981 offer the most promise for displaced U.S. tech workers.

However, it is still unclear whether these federal anti-discrimination statutes can effectively address H-1B discrimination. Part III concludes that tech workers will ultimately achieve the greatest job security through reforming the H-1B statutory scheme. But rather than recommend the content of those reforms, Part III proposes the catalyst--a sustained campaign of litigation, unionization, and education--all with the aim of exposing the corporate exploitation of American and foreign tech workers.

  1. THE H-1B VISA STATUTORY SCHEME AND ITS FAILURE TO ADDRESS THE FISSURED TECH WORKPLACE

    The tech industry's demand for H-1B workers greatly exceeds the available supply, (31) which is capped at 65,000 per year, albeit with plenty of exceptions. (32) The visa cap--which Bill Gates has criticized as the "worst disaster" (33)--has been a lightning rod in the debate over the economic soundness of the H-1B program. Despite the visa's important consequences on the science, technology, engineering, and mathematics (STEM) labor market, (34) especially computer-related jobs, (35) surprisingly few studies have examined its effect on the employment opportunities of U.S. tech workers. (36) Thus, a vacuum of data (37) and conflicting research methods (38) have led to a cacophonic debate. (39) Supporters argue the H-1B program attracts the "best and the brightest," (40) who fill a shortage in skilled domestic labor. (41) Critics counter H-lBs are "people of just ordinary talent, doing ordinary work" (42) for corporations that replace their older American IT staff with a younger, immobile, (43) and thus cheaper, workforce. (44)

    Plenty of ink has been spilled on these issues. Part I will instead discuss the current H-1B statutory scheme and its administrative remedies ostensibly designed to protect U.S. workers. Part I argues that the program instead facilitates the legal displacement of U.S. tech workers, which is primarily due to the statutory scheme's failure to address the realities of today's fissured tech workplace.

    1. Immigration and Nationality Act of 1952 (INA): A Decentralized Approach to Skilled Foreign Labor

      Congress has the explicit authority to regulate immigration. (45) But contrary to popular opinion, the "federal government rarely makes decisions on its own about which immigrants should be admitted." (46) Instead, under the Immigration and Nationality Act of 1952 (INA) (47)--the foundation of all U.S. immigration law (48)--Congress delegates substantial immigration authority to non-governmental agents (i.e., private employers). (49) Employers are granted the greatest control over foreign workers who qualify as nonimmigrants (i.e., temporary), as opposed to immigrants (i.e., permanent). (50) Compared to global standards, (51) the American approach to skilled nonimmigrant visa workers is atypical because the H-1B program "is built around written requests from [employers] for access to specific workers." (52) The petitioning employer initiates the visa process and maintains considerable control over the foreign worker. (53)

      The INA first "opened the door for the entry of high-skill, temporary workers" (54) with its creation of the H-l visa category for nonimmigrant workers (55)--the precursor to the H-1B. (56) The original H-l nonimmigrants were required to maintain "a residence in a foreign country which [they had] no intention of abandoning," be "of distinguished merit and ability," and intend to come to the country temporarily to perform services "of an exceptional nature requiring such merit and ability." (57) In short, the H-l visa reflected many of the federal policies of the 1950s and 1960s that sought to grow the economy while also protecting U.S. labor interests. (58)

    2. Immigration Act of 1990: A Contradictory Approach to Skilled Foreign Labor

      However, by 1990, labor organizations criticized that the H-l visa "no longer reflected its original intent." (59) Concerned that employers were misusing the H-l program to fill entry-level positions, (60) labor organizers recommended that Congress separate foreign business professionals from nurses, entertainers, and athletes. (61) However, the business community and immigration bar sought to prevent the imposition of any onerous labor certification process. (62)

      Congress sought to placate these competing concerns in the Immigration Act of 1990, (63) which added new categories of nonimmigrant visas. Among these was the H-1B visa, (64) which eliminated the original H-l "distinguished merit and ability" standard. (65) Instead, H-1B nonimmigrants were required to work in a "specialty occupation," defined as a job that requires "(A) theoretical and practical application of a body of highly specialized knowledge, and (B) attainment of a bachelor's or higher degree in the specific specialty ...." (66)

      The H-1B visa reflected Congress's scizophrenic approach to immigration. On the one hand, Congress satisfied business interests by rejecting "any recruitment obligations, positive tests of the labor market, and other obligations for employers to demonstrate U.S. worker unavailability" (67)--unlike other H-category nonimmigrants (68) and contrary to popular opinion. (69) In addition, Congress allowed H-1B nonimmigrants to have dual intent, meaning they could intend to stay in the country temporarily or plan to permanently settle in the future. (70) On the other hand, Congress ostensibly sought to protect U.S. workers by imposing an annual cap of 65,000 visas and requiring prospective H-1B employers undergo a labor condition application (LCA) process. (71)

    3. The LCA Requirements and the H-1B Visa Program's Administrative Remedies: An Inadequate Protection for U.S. Tech Workers

      An employer seeking to employ H-1B nonimmigrants must first file an LCA, which requires the employer make four attestations subject to perjury. (72) First, the employer must verify that it will pay the H-1B employee the required wage rate. (73) Second, and most importantly, the employer must agree that it "will provide working conditions for [the H-1B worker] that will not adversely affect the working conditions of workers similarly employed." (74) Third, the employer confirms that there is no "strike, lockout, or work stoppage ... in the occupational classification in the area of intended employment." (75) Lastly, the employer attests that it "provided notice of the filing of the [LCA] to the bargaining representative of the employer's employees in the occupational classification in which the H-1B...

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