The law should be written that if you caught violating the terms and spirit of the h1-b visa program, you give up right to participate in h1-b sponsorships for x number of years. H1-B is oversubscribed and if you suspend someone like Tata, it will help alleviate that issue.
Agreed. I didn't realize the rules around H-1B's replacing American workers was so specific:
"The visas are meant for foreigners with specialized skills to fill discrete positions when Americans with those skills are not available. In the applications large companies must file for the visas, they have to confirm that no American workers will be displaced."
This case with Disney having US citizens train their H-1B replacements is a clear violation, and hopefully there are repercussions for Disney and Cognizant. (And more than just this: "Senator Bill Nelson, Democrat of Florida, has called for an investigation of the H-1B visa program.")
I think this is the core of the problem. If H-1B were actually being applied as the law is written, I don't think anyone would have a problem with it, at all. Unfortunately, it appears that the government is doing almost nothing to prevent abuse, probably because of lobbying from tech firms.
You are right, though, the practice of using the visa program to replace existing workers with lower cost alternatives which they must train is clearly not allowed.
It is interesting, because a couple of years ago, I was a hiring manager working through the H-1B process for one of my employees. I had to provide a wealth of documentation on what the needed skill set was, as well as documentation on the job advertisements we had made and interviews conducted.
Maybe on the government side it was all ignored, but the firm we worked with certainly led us through the process with detail and seriousness.
Its not the tech companies lobbying. Its the companies like verizon and disney. Tech companies are feeling the pain of h1-b being oversubscribed. If you need a very specific skill that has a very small talent pool, you're competing against these companies who are doing it just to get cheaper labor. When we look at machine learning with advanced degrees, that pool is probably at 100% employment in the US. Thats what h1b is designed to address. Not filling out an oracle DBA position for under market rates.
There's a common law principle called Sovereign Immunity that generally limits the ability of people to sue their government without the government's consent. Of course, in a lot of places governments have granted consent in some broad ways (the US for torts against employees or where the government had a contract with a private entity, apparently[1]). But IANAL.
A reality I've not seen discussed online, but obvious to Americans I worked with at Qualcomm, is that "not available" can mean "unwilling to relocate to California, because Americans largely realize it's unaffordable and rife with scams to exploit visa-bound foreigners with inflated prices". I got that explanation right from a Qualcomm senior director about 10 years ago, or more. And no American workers are displaced, as those capable of filling the jobs are, sensibly, unwilling to move to California to fill them.
So now the employer is obligated to come to the employees? There's a reason employers tend to be in populated areas with a larger pool of potential employees. You can setup an office in Cheyenne, Wyomong, but if there are only 2 potential people to employ there, it's not particularly efficient.
California has made its bed by continually passing regulations designed to decrease population density and push up the price of residential real-estate. Now the citizens and businesses of California must lie in that bed.
I think this is an example of why people often feel like they're talking "past" each other on this issue. You see this as a matter of employees making unreasonable demands on an employer and acting like they are entitled to a job where they get to dictate the conditions. I see this as an employer claiming that there is a desperate shortage of workers that can't be found at (any price?/market rate?) and needs a special government visa program where they get to bestow residency (and control residency) on would-be immigrants.
> The law should be written that if you caught violating the terms and spirit of the h1-b visa program, you give up right to participate in h1-b sponsorships for x number of years.
Let's go a step further. If you are in gross violation of the H1-B program terms, you lose the right to participate permanently.
Permanently is a long time. It would seem nonsensical to handcuff a company 20 years from now for violations made today. Not only could there have been complete turnover in the intervening years, but there could have been various mergers, acquisitions, and spin-offs.
Permanently is a long time. If you prefer not to hold the corporation responsible forever, I would be satisfied with holding corporate officers personally liable instead.
If the IRS and state labor government is able to purse corporate directors personally for payroll taxes that haven't been paid by a company in the event of insolvency, this would be no different (ie labor regulation).
We've tried the carrot, now its time to try the stick.
Tough. Many people were idiots when they were younger, and have found themselves saddled with criminal records. Most of these people are not the same person they were when they committed the crime. Yet they still find themselves paying for it. I fail to see why a company should have it any different.
If anything, this is an argument to stop giving people life sentences, not for giving companies "permanent" punishments. Basf, Siemens, Bayer - all used to work for the Nazis and used labor from concentration camps. Yet you can't possibly say that these companies are the same as they were 70 years ago.
Unfortunately, actual people generally only have one true identity and punishments and records stick to that identity. Companies on the other hand, especially those prone to skirting or breaking laws intentionally, come and go. The profit incentive for exploiting foreign workers (and many other criminal corporate activities) is much higher than the costs of creating a purpose-built fall-guy corporate veil. If you lay out permenant company specific bans, those companies will just disappear and a new hydra head will pop up in its place doing the exact same thing. The profit incentive to exploit cheap foreign labor is just too high.
Personally, I think if "companies are people", then the people (board of directors, owners, executives) in charge of that "person" should personally share in the company's legal punishments as accomplices or co-conspirators. Let the actual human people who made those illegal choices sit in jail for a few years and decide if that activity is worth pursuing again with a new company.
I would imagine permanent punishments would just cause companies to dissolve and reform through some paperwork acrobatics (similar to bankruptcy processes like New GM).
I'm glad someone pointed this out. Companies constantly change identities, in particular for employment, and if there was punishments imposed for an entity, they'd just split it into many smaller entities and let them get punished.
Make it so all managers involved in the decisions lose their ability to participate in the program. Make it an administrative judgement, not a punishment, so you don't have to worry about the whole 'being found guilty' bit.
In the Netherlands, similar visa have a minimum salary requirement. As a result, we have tech workers from all over the planet, but no herds of cheap labour from India. The Indians that are here are well paid experts.
If knowledge migrant visa are abused to import cheap labour, the problem is clearly in the word "cheap".
The H1-B visa program has a minimum salary requirement of $60K USD a year. Of course, that's almost entry level in the technology sector. Raising that to $100K-$150K/year would definitely help, and it would be hard to argue against it. If you're relying on talent from outside the country due to a skills shortage, paying a premium is the cost of doing business.
It's impossible to compare absolute numbers because the tax and benefits are so different, but the Dutch minimum is well above entry level.
In fact, it's well above what companies that don't value top talent are willing to pay for locals at senior level.
Because of this, there is no quota and very little in the way of formalities involved in becoming an accredited employer. If they're willing to pay top money for foreign talent, a business is free to bring them in.
It would hurt startups under a few conditions. Perhaps there could be an overall package, rather than pure salary (e.g., equity, etc.)? Or a gradient on the scale of the employer? It's difficult to find a set of rules that don't hamstring the small companies, don't misalign incentives for big companies, and aren't ridiculously complex.
I wouldn't be against taking equity into account, but in the end, cash salary is most important. Equity is almost always a lottery ticket, even if you're a founder. If you're a founder, you should be riding on a different US visa, not an H1-B.
Oh sure, but for example, a company that's doing a knowledge-app that's unexpectedly big in Japan, and they want to hire Japanese-fluent (also technically very high skilled) engineers here. Early on they may not have the cash-flow to hire "market-rate" (e.g. MicroGoogleBookZon) salaries, but is willing to put skin in the game with other resources.
Department of Labor also requires H1 applicants on the employer side to pay "prevalent" wage.
It does seem to make sense for Department of Labor to grant the visas to highest salary earners first. As US government taxes personal income, it's even in their self interest.
if there was a true shortage of skilled workers and there was political interest in fixing the shortage the minimum H1-B wage should be set at 5x of the "prevalent" wage, in order to provide an incentive towards actually developing these skilled workers.
If an H1-B costs me as much as 5 non-H1-Bs my incentive would be in hiring one H1-B short-term and using them to train/mentor normal employees and use as few H1-Bs as possible, laying off my employees to hire H1-Bs would not make sense in this case.
Also as many others have said, H1-B should be an 'exceptional' visa, which means that as a country there should be a strong interest in making these 'exceptional' individuals citizens as soon as possible, which should mean a guaranteed green card within 1-2 years, and no "lock" to the employee requesting the H1-B (because if there is a true shortage other employers could be interested too, the visa should be tied to the exceptional individual, not to the company hiring them).
We have one as well. However, we also don't have any kind of maximum work week, so many of these people who come over for companies like Tata find themselves working insane amounts of hours, and have no chance at raises, bonuses, or promotions. So they'll be working for 5 years at the same rate.
How would you avoid royally screwing over the people no H1-B sponserships? It seems that whenever visas are on the agenda no concern whatsoever is given for the fact that we are talking about humans, like you and me, who are only guilty of the crime of not being born in the US.
I fail to see how this screws them. The only people it screws are companies like Tata, who's entire business model relies on importing cheap labor, and squeezing as much as possible out of them before discarding their withered husks back to India.
Cut those people out, and let companies that will actually treat them as human beings employ them.
And after reading your post, words "trolling" and "easily offended for no reason" come to mind. H1-B visa clearly stipulates that no American workers can be displaced in order to hire H1-B workers. That's the law. If a company breaks the law, an appropriate punishment would be to bar that company from hiring H1-B visa workers again, at least temporarily - just like you take away the driver licence of someone who is caught driving while drunk.
> H1-B visa clearly stipulates that no American workers can be displaced in order to hire H1-B workers. That's the law.
I have no opinion on whether this requirement makes sense. However, I don't see how "that's the law" is a defense against "that requirement looks racist, or at least causes disparate impact" ( https://en.wikipedia.org/wiki/Disparate_impact ). It's entirely possible for a law to harm particular groups of people more than others.
Will current law work? Disney won't be punished because it's just outsourcing some business. Tata won't be punished because Tata didn't displace American workers in Tata company (all from H-1 I guess?). So company avoid punishment anyway?
I am not against preventing the company from hiring new workers if they misuse the H1-B visa. I am against forcing them to fire the current employees, who may have houses, friends, etc.
You punish the drunk driver, you don't deport his employees.
This entire problem would be moot if you, rather than not renewed their visa, upgraded it to a greencard. The entire HB-1 abuse would be pointless if the US had a reasonable system in place for legally acquiring visas. As it is now the only way to legally get in (other than a few specialities or people with US spouses) is the HB-1 visa.
This really is the worst way to treat your employees, if I was one of the lucky people who was told to continue as if nothing had happened I would do everything I could to get another job somewhere else asap.
Corporations need to show more respect to their employees, outsourcing to india and then forcing the current employees to train the people replacing them is no way to treat people.
My best friend works at Cargill, and they're doing the same thing.
They get around the "outsourcing" rule by creating a Cargill office in India and then sending all the "business" to those offices instead of here. It's semantics, but its still outsourcing any way you look at it.
She's heartbroken because she's in the process of finalizing people's year-end reviews who are going to be laid off within the next few months. Cargill also makes it a policy you have to train your replacement or else you lose your severance. So here she is, writing up year end reviews that have no value at all, while training a new team that will replace her entire team here in in the US.
The only way out of this is for everyone to stand up and say they won't train their replacements, even if it means losing their severance. That's the only way. Sounds like....unions?
Because companies have no obligation to provide severance, they often offer it as part of a larger exit agreement that contains other terms. This really limits the laid off employee's ability to negotiate because the company can basically say "take it or leave it" since they know how valuable severance is to someone in that situation. That is how they get away of forcing people to sign non-disparagement agreements and to give up their right to sue.
I genuinely wonder what the quality of the training was. If I was being fired so the company could give my job to someone cheaper, and I had to provide training under threat of monetary loss, you'd better believe that I might forget a few key lessons.
This is Disney/ABC which is canceling the tech worker layoffs, which impacted 35 workers. Looks like the Disney World story which resulted in over 250 layoffs to bring in H1-B workers hasn't changed.
I don't think we've heard the last of this from Disney. They have an objective, maybe it's to reduce domestic workforce to save on benefits, or reduce overhead. Regardless, that goal is still out there. They'll find another way to do it, and it will probably be another round of layoffs sans training replacements.
If it weren't for the forced humiliation of training their replacements, I doubt we would have ever heard about this. People would have been (or will be soon) laid off, and the foreign workers brought in, trained by a contractor, and no one is the wiser.
American corporations do not value the American workforce, and neither does our government.
> “We were told our jobs were continuing and we should consider it as if nothing had happened until further notice.”
While technically that's basically what most people's work situation is - you're an employee with work to do, unless you get fired or the company goes out of business, in which case you'll definitely be given some notice - but it sounds so much more ominous in this case.
>The tech employees he knew who had been required to train foreign replacements had “routinely sacrificed personal time and freedoms to help make your experience what it was” in the theme parks, he wrote.
This quote right here pretty much helps to explain why company loyalty is a ridiculous notion. Employment is a business transaction. If the company deems your position unnecessary or that you're too expensive, they will eliminate that issue. Unless your job is threatened, it's never worth it to sacrifice your personal time for your employer.
Also reminiscent of the old Dutch East India Company -Citigroup sabal park campus in Tampa, Florida rents out floors from nearby Hyatt Place hotel for h1bs. There are roughly 5 h1bs per room.
One strategy Disney may apply is to retain the workers for some limited time, offer them an option to continue on with a bonus, but force them to sign an NDA of some kind in the process. Once the term is complete, they can lay off the workers without the press hearing a single word about it.
A contract to do something illegal isn't enforceable. You can't make a contract that says you can't go to the police (or other authorities) to report someone breaking the law.
