01-26-2016 Last week two former Disney employees sued Disney and two global consulting companies, claiming that Disney and the companies illegally conspired to violate the H-1B visa regulations by replacing U.S. workers with H-1B workers. The Complaint alleges that the two consulting companies, Cognizant and HCL, were the employer sponsors for the H-1B visas for the foreign workers. Presumably, Cognizant and HCL has contracts with Disney to place their workers with Disney to work on various projects. The Plaintiffs allege that in October 2014, between 200-300 Disney employees in the IT department were told that they would be fired on January 30, 2015, but that they had 90 days to train the H-1B visa holders and their replacements.
The H-1B is one of the most regulated visa petitions. Before filing an H-1B petition with the USCIS, an employer must first submit a Labor Condition Application to the Department of Labor, and obtain a certification of it. The Labor Condition Application includes attestations that: (1) the employer will pay the H-1B worker the HIGHER of either the actual wage paid the employer to other workers in the same job with similar experience and qualifications, or the wage that the Department of Labor says is the wage for that job with similar experience and qualification, in the same geographic area; (2) the H-1B workers will not adversely affect the working conditions of workers similarly employed; (3) there is no current strike, lockout, or work stoppage; and (4) Notice of the employer filing the Labor Condition Application has been provided to all workers in the same occupation.
An employer who is considered ?H-1B Dependent? must make additional attestations to the Department of Labor when they submit the Labor Condition Application. For companies with more than 51 U.S. employees, they are considered to be ?H-1B Dependent? if 15% or more if the U.S. workforce is in H-1B status. An ?H-1B Dependent? employer must attest that: (1) they will not displace any similarly employed US worker within the period 90 days before the H-1B petition is filed up until 90 days after the petition is filed; (2) they will not place any H-1B worker at a third-party worksite unless the H-1B employer firsts makes a bona fide inquiry as to whether the employer has displaced or intends to displace any similarly employed US worker with the same 180 window as above; and (3) that the employer made good faith steps to recruit U.S. workers for the job, offering compensation at least as high as what is required to offer the H-1B worker. HOWEVER, these additional attestations DO NOT apply if the H-1B worker will be paid at least $60,000 annually, or if the worker has attained a master?s degree or higher in a field related to the employment.
The Complaint acknowledges that the Cognizant and HCL may be exempt from these additional attestations regarding layoffs and recruitment, but that the Defendant violated the regulation requiring that H-1B workers not adversely affect the working conditions of workers similarly employed. As an immigration lawyer who has prepared countless H-1B petitions, I?ve generally understood this ?working conditions? attestation to be things like providing hours, breaks, work-schedules, etc.? Since the regulations regarding layoffs are articulated in detail, and only applicable to certain H-1B employers, I do not believe that ?working conditions? which all H-1B employers must comply with, can be interpreted to include layoffs. However, the Plaintiff makes a strong argument that termination of similarly employed workers is certainly an adverse effect on working conditions.
We will be watching to see how this case unfolds. The H-1B program can be used to provide employers access to global talent, and to grow the economy. Yet, even if the Defendants prevail as to whether the situation amounted to a violation of the ?working conditions? attestation, displacing U.S. workers with H-1B workers is a problem for the U.S. labor force and for the integrity of the H-1B program.
Michelle Gee is an immigration lawyer, and routinely handles H-1B matters for Silicon Valley employers.