Embarrassingly low wages are just the tip of the iceberg when it comes to employer abuse of the H-1B temporary-visa program, new legislation and other data have revealed. Discrimination on the basis of immigration status, the loss of "at will" employment rights, the use of "body shops" and outright fraud have also surfaced, resulting in at least one class-action lawsuit
Legislation now before the U.S. House of Representatives targets a range of abuses, from fraud to discrimination on the basis of immigration status. Still, the hot-button issue of wage discrepancies between visiting workers and their American counterparts remains at its heart. As if to underscore the point, on the heels of the bill's introduction in mid-November, the Center for Immigration Studies (CIS) released a controversial report that measures a $13,000 difference between what employers typically pay American employees vs. visiting workers.
The reform bill, the CIS report and a subsequent failed effort to raise the H-1B visa cap struck down on Dec. 21 when Congress dropped the provision from a mammoth spending bill collectively shine a harsh spotlight on the flaws of the 10-year-old H-1B program.
"The report helps us understand better how the program works in practice, and the bill lays out some sensible, useful and practical reforms," said Ron Hira, vice president of career activities at IEEE-USA, which has come out in support of the bill. "They both come at a time when these issues are in play in the political realm, which means they should have an influence on the outcomes of policy."
Introduced by Rep. Bill Pascrell Jr. (D-N.J.), the Defend the American Dream Act seeks to reform the H-1B visa program by requiring employers who apply for the visas to use locally determined prevailing-wage data, and either the median average wage for all workers in the occupational classification or the median wage for skill level two in the occupational classification in the most recent Occupational Employment Statistics survey, whichever is greater.
Notably, the bill would set the visa quota at its original level of 65,000 per year. The number topped 195,000 between 2001 and 2003, before falling to 85,000 in 2005. The bill also adds a legal provision for workers to take action if harmed by violations of the employer's labor condition requirements, and it shortens stays on the visa. Currently, H-1B visa holders may renew their three-year term once, for a total stay of six years. Under the reform act, authorized stays would be limited to either a single three-year nonrenewable term or two years, renewable for a total of four. Pascrell has garnered five sponsors all Democrats for the bill, which was referred to the House Committee on the Judiciary.
The bill's co-author is Sona Shah, an Indian American who has spent the last seven years fighting what became a class-action discrimination lawsuit against software and services firm ADP Wilco. Shah and former colleague Kai Barrett, a British citizen who was transferred from Wilco's London office to New York City on an H-1B visa, filed it on behalf of both U.S. workers who were discriminated against in favor of temporary visiting workers, and H-1B visa holders who were exploited through shockingly low wages and other means. Barrett has been granted a green card by a subsequent employer.
Shah's experience is that the wage estimates in the CIS report err on the conservative side. "I am an Indian American with a lot of family members who have been brought to America on H-1B visas," she said. "The salary discrepancies they experienced compared to the prevailing American labor market were far in excess of $13,000 closer to about $50,000. In some cases it was even more than that."
For employers who abuse the program, it isn't strictly about salaries it's about exercising ultimate control over their work force. "The H-1B visa defeats at-will employment," said Shah. If an American finds a higher-paying job, he or she can pursue the opportunity. But an H-1B visa worker is tied to the company that sponsored the visa, with no legal recourse. The employer controls the worker until the end of the visa's term. "The salaries are just one aspect of it," Shah said. "The idea of an indentured work force is the primary benefit."