Many American graduates will lose their jobs in the coronavirus meltdown unless they pressure C-suite executives to shrink the million-plus H-1B visa workers on the payrolls, say lawyers, political activists, and Americans who have lost jobs in prior mass layoffs.
American graduates “must act now to ensure the huge pending layoffs are imposed on Indian H-1Bs instead of on Americans,” said Marie Larson, a co-founder of the American Workers Coalition.
American and Indian managers have already replaced American graduates with an army of roughly one million Indian white-collar workers, including roughly 750,0000 H-1B workers. Hundreds of thousands of other visa and work-permit workers are imported from China, Europe, and Asia under rules allowing renewable stays one to three years.
Many of these visa workers are hidden from media outlets and American employees because they are hired via a network of Indian-run subcontracting firms, such as Tata or Infosys. House Democrats — aided by business lobbyists — have drafted a bill to protect the visa workers, and the Department of Homeland Security took two steps last week to help accelerate the 2020 arrival of 85,000 more H-1B workers.
American managers will be reluctant to fire their visa workers, in part, because it is more difficult to rebuild a visa-worker labor force than it is to rehire fired Americans.
“There’s plenty of evidence that Indian managers will be reluctant to fire fellow Indians,” said Ron Hira, an expert on the outsourcing industry and an associate professor at Howard University. “There are cultural network effects on hiring — anybody who studies diversity and underrepresented minorities or females knows these things have effects [because] people tend or hire people who they are comfortable with, who are like them,” he said.
“If an H-1B gets laid off, they have to leave the country, and that can be a devastating experience, particularly if they have a house and a family here,” Hira said. “They will be much more desperate to keep their jobs. … Those folks are so desperate they will work for nothing,” he added.
Americans “have to band together,” said Kevin Lynn, founder of USTechworkers.com, adding:
That means you have to make a collective decision to go to management and make your demands. You have to band together and meet with your legislators at municipal, country, state and federal levels. You have to do it immediately. You run the risk of getting fired, but the reality is that they are going to fire you anyway. That’s the plan … The time to fight back is now.
“You go as high up as you can, to the CEO, the director of human resources,” said James Otto, a California lawyer who has won court cases for Americans who were fired so the companies could import Indian workers. He continued:
If you don’t do this, you lose. But if you do this, the range of outcomes starts with you get to keep your jobs – maybe with less pay, but you keep your benefits. You can negotiate, and if they say no, you’ve gained documentation of discrimination and it is illegal discrimination and you can sue on that.
Americans graduates have the law on their side, said Otto.
Companies have to promise that the H-1B will not disadvantage Americans when they first ask the government for permission to import H-1B workers.
According to a summary by Cornell University’s law school:
An employer seeking to employ H-1B nonimmigrants in specialty occupations … shall state on Form ETA 9035 or 9035E that the employment of H-1B nonimmigrants will not adversely affect the working conditions of workers similarly employed in the area of intended employment.
The employers’ commitment is made in the “Labor Condition Application” form:
The employer shall provide working conditions for nonimmigrants which will not adversely affect the working conditions of workers similarly employed. The employer’s obligation regarding working conditions shall extend for the duration of the validity period of the certified LCA or the period during which the worker(s) working pursuant to this LCA is employed by the employer, whichever is longer.
The rules are tighter for companies that are deemed an “H-1B Dependent” employer:
An H-1B dependent or willful violator employer is prohibited from displacing a U.S. worker in its own workforce within the period beginning 90 days before and ending 90 days after the date of filing of the visa petition.
“Get organized. Gather evidence … collect documents,” said John Miano, a lawyer at the Immigration Reform Law Institute. “Fifty people bringing a case adds a lot more weight.”
The H-1B laws provide little or no protection for Americans graduates, he said. But lawsuits can be based on patterns of executives’ discrimination against Americans in favor of people who are not citizens or not Americans, he said. The lawsuits can also be brought against companies that keep many workers on subcontractors’ payrolls. “It is tougher to prove,” he said, adding, “It ain’t what you know, it is what you can prove.”
Americans also need to lobby Congress and get media attention before they are fired, Larson said. “It is a time for action, even if it puts people at risk — putting your heads down, keeping anomalous, it’s not having an impact,” she said.
The Indian H-1B workers are lobbying Congress to preserve their work permits and jobs, so Americans must accept that politics is more important than their technical expertise, she said. “We need every American graduate to push this issue as much as possible. … They need to call, email, and tweet their senators and reps daily.”
Indians will shout “Racism!” at American employees who rally their black, white, Latino, Asian, native-born, and immigrant peers into a group to protect their economic rights and their jobs, Larson said. “Whenever anybody shouts the word ‘racism!’ everybody freezes,” she said. But the Indian groups already organize themselves to fight in Congress for jobs, she said:
Immigration Voice is the lobbying group that is heavily lobbying our Congress, including on bringing in more visa workers and the green card giveaway [S.386], has become a master of using “Racism!” as a whip to cow the American people into going with their demands.
“The Indians are a group of groups, they look out for themselves,” said Lynn, adding:
We see ample evidence of preferential treatment. They look out for people of their nation, their caste, their region, and hence we see case after case of country-of-origin discrimination and preferential hiring for their in-group.
Over the last two years, American professionals have organized to lobby against the H-1B program via the American Workers Coalition, U.S. TechWorkers, and ProUSworkers.
The new TechsUnite.US site was created to help U.S. graduates anonymously collaborate while shielded by encryption.
In turn, these groups are backed up by a few sites that track the scale and location of the outsourcing industry in each legislator’s district. The sites include SAITJ.org and H1BFacts.com. “The scope of this thing is really unbelievable,” said one researcher.
Other sites document the conflicts created by diverse foreign business practices in the United States. The non-political MyVisaJobs.com site also provides much information about H-1B outsourcing and green card rewards in multiple industries.
The racism claims that are routinely thrown at Americans are the reverse of the workplace reality, Larson said. “Yes, there is discrimination, but it is in favor of Indians, and it is done by U.S. executives,” because they prefer to hire and fire cheap, compliant labor from India, she said, adding:
Our hard-fought employee rights are being pushed to the curb. The message has been entirely skewed so that visa workers can come in saying “We want diversity,” “Don’t be racist,” but Americans for decades have been fighting for employee rights, rights for women, for minorities, and these are all just being stepped over.
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[Americans] are being pushed aside — even Chinese-Americans and Asian-Americans to a great extent. Indians are just dominating [in workplaces] and all these other minorities don’t even have any representation [in workplaces] any longer. It is not diversity at all.
The conflict between American employees and visa workers exists because Congress allows companies to hire visa workers who have far fewer rights in the job market than do legal immigrants, he said. “The most important issue is … we should have immigrants and immigration, not guest-worker visas.”
“When you are in these desperate times, it is going to create even more negative, knock-on effects on the labor market,” he said.
But Americans’ rights can be enforced by lawsuits, said Otto, who has won million-dollar judgments for Americans who were fired by a California insurance company.
Americans need to document their companies’ staff, collect contacts, performance evaluations, and force executives to explain their decisions, he said. Any deception or smears by executives can dramatically expand lawsuits, he said.
“[If] you quit [trying], you lose: If you’re going to get fired, what have you got to lose?”