Want a High-Skill Visa? Don’t Discriminate

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By Laura D. Francis

If you’re one of likely hundreds of thousands of employers seeking high-skill temporary visas during the first week of April, you’d better make sure you’re not discriminating against U.S. workers.

The Justice Department April 3 warned that employers will break the law if they favor H-1B workers over U.S. workers. The Immigration and Nationality Act bans discrimination against U.S. workers because of their citizenship or national origin when making hiring, firing and recruiting decisions.

April 3 is the first day employers can submit their H-1B visa petitions for fiscal year 2018, which starts Oct. 1. For the past several years, demand has far exceeded the supply of 85,000 visas.

But the DOJ’s warning comes amid stories that a handful of prominent employers—including Southern California Edison, Walt Disney World and the University of California—laid off their information technology workers and replaced them with H-1B workers.

As a result, the visa program has garnered additional scrutiny from several members of Congress and President Donald Trump.

INA, Title VII at Issue

The DOJ already indicated that, in certain circumstances, replacing U.S. workers with workers on H-1B visas could violate the INA’s anti-discrimination provision. And two former Disney employees have filed a lawsuit claiming that the company violated Title VII of the 1964 Civil Rights Act by discriminating against them on the bases of national origin and race.

Actually proving discrimination may be a tough nut to crack.

The cases involving displacement of U.S. workers generally involve outsourcing—the employees aren’t directly replaced by their employer, but rather their jobs are outsourced to another company, which uses the H-1B program. That makes for a challenge in proving discrimination under either the INA or Title VII.

Still, the DOJ’s message indicates that the agency will be keeping a close eye on employers that use the H-1B program.

“The Justice Department will not tolerate employers misusing the H-1B visa process to discriminate against U.S. workers,” Acting Assistant Attorney General Tom Wheeler of the Civil Rights Division said in a statement. “U.S. workers should not be placed in a disfavored status, and the department is wholeheartedly committed to investigating and vigorously prosecuting these claims.”

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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