By Sanjeewa Karunartne
The H-1B program extends visas to foreign workers for occupations requiring theoretical or technical expertise. A major portion of the H-1B population consists of foreign students who graduated from U.S. higher education institutions and are subsequently being employed in the U.S. The weakening economic conditions have resulted in many H-1B employees being laid off or terminated, thus, facing imminent departures to their home countries. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race and national origin, but its application to H1B Employees may not be consistent.
The “dual-intent” exception in the Immigration Act of 1990, which established the main features of the H-1B visa program, has been used as a vehicle by many foreign students to obtain employment-based legal permanent residency or green card. U.S. colleges and universities enroll over half a million foreign students annually, according to the U.S. Dept. of Education. The U.S. employers are at risk of losing this well-trained workforce to its foreign competitors.
Over the past few years the attractiveness of the H-1B program, which was designed to bolster U.S. expertise in science and engineering, has been fading. According to U.S. Citizens and Immigration Services, in April 2011 it received about 8,000 H-1B petitions from businesses, the first month the agency accepts them for the fiscal year beginning Oct. 1. That compares with 16,500 petitions in April 2010 and about 45,000 in April 2009. Connected to this decline may be the exploitation of these workers in the U.S..
An H-1B employee’s right to stay in the U.S. is tied to his employment. The moment such employee is terminated his employer revokes the Labor Condition Application (LCA); therefore, the employee must immediately return to his home country—there is no grace period. When such employee loses the job, he becomes an illegal immigrant who lacks legal standing. Once he leaves the U.S., he is no longer subject to jurisdiction of the U.S. courts, and for all practical purposes, he will not be able to pursue a civil rights lawsuit.
Exploitation of this legal loophole is unavoidable—some employers “bench” H-1B employees for months without pay; some head-hunter, executive hiring or consulting firms keep these employees in their payrolls without pay until they can place them in a job. Once the person is recruited, the firm charges a hefty percentage of the employee’s salary for a specific period of time. An aggrieved employee can wage complaints to the U.S. Department of Labor by filing a form WH4. In many cases, when a WH4 investigation is ensued, the employer terminates the employee, and revokes the LCA retrospectively, despite it being illegal to do so. Consequently, the employee becomes an illegal immigrant subject to deportation, which also jeopardizes his re-entry to the U.S. Thus, an illegal termination of an H-1B employee causes irreparable harm that prevents him from seeking remedy under Title VII.
A recent case may promise a remedy. In Karakozova v. University of Pittsburgh, the plaintiff was employed as a Research Assistant on H-1B visa and had a contract to work in her current position until June 14, 2009. On January 23, her supervisor sent her a letter stating that her contract would end on June 14 due to insufficient funding. As a result, plaintiff’s visa would expire on June 14, requiring her to return to Russia. Plaintiff argued that she was subjected to discrimination on the basis of national origin, in that her supervisor decided not to renew her contract because of alleged insufficient funding, yet hired and/or retained other similarly situated persons of Korean descent. Granting a preliminary injunction, the 3rd Circuit Court stayed the case while plaintiff pursued her claims before the Equal Employment Opportunity Commission, the Pennsylvania Human Relations Commission and through the University grievance appeal processes. In the interim, respondent was ordered to maintain plaintiff’s employment with equal salary and benefits.
The H-1B employees are a skilled, hard-working and ambitious workforce. Like most immigrants, they thrive on the aspiration to become successful in the U.S. Unfortunately, for all practical purposes, these employees seem to be miss out on one of the most progressive legislations in the U.S. history—the Civil Rights Act.