Industry group TechServe Alliance, the American Staffing Association and three staffing companies specializing in H-1B visa holder candidates are pursuing a lawsuit in federal court to protest a ruling that they claim is killing business. At the heart of the matter is the government’s effort to weed out fraud and abuse while making sure employers have daily supervision over H-1B visa workers.
Earlier this year a document from USCIS that has widely come to be known as Neufeld memo (pdf) was released, that documented the somewhat complex definition of an employer-employee relationship, in reference to H1-B consultants working for ‘third party’ companies.
This memo outlined the details as to what exactly constituted an employer-employee relationship, which in effect put thousands of H1-B visa holders and their employment status in jeopardy, or at best left it to the whim of immigration officials wielding power at the ports of entry.
Whateva
This was done apparently to prevent the rampant abuse of H1-B staffing companies, while the effectiveness of this memo is not verifiable at this time, there was a surge of postings online (immigration lawyers’ blogs and websites) about how H1-B visa holders returning from a vacation trip abroad were deported expeditiously from the port of entry (they were most likely coming through the Newark airport in New Jersey,) as soon as it was clear that they were H1-B holders working for ‘third party’ clients.
USCIS also swooped down and apparently verified employment status of employees of random H1B staffing companies ( this is from reliable personal sources). Awarding heavy fines to companies not maintaining their payrolls and other employent records satisfactorily.
Though this should have been done long ago (monitoring consultancies involved in cash making by exploitation), before the h1-b consultancy model became a ’successful’ IT model, it did little to help H1-B consultants under the grip of their employers who routinely exploit the H1-B workers themselves, by ‘taking care’ of their legal status but severely underpaying them, pushing them into complex projects they were not trained to do, having them fake their resumes by as much as 7-8 years of experience (for a fresh university graduate hardly 24-25 yrs of age), holding a tight grip over changes in their career (change of employers, especially being hired by a client company that they were contracting for) and benefiting shamelessly by controlling their legally complex and costly process of H1-B to Green Card.
For most desi consultancies (based in USA, and not including major tech players like Wipro/TCS), their ‘consultants’ are like geese laying golden eggs, and they can seldom change employers or advance in their career without running into legal obstacles, what the bill should have addressed was in fact heavy penalty to consultancies financially exploiting fresh graduates or undergraduates , by luring them with a visa status. Not only this bill does nothing to help this form of exploited labor, but adds more to the burden of ordinary techies, trying to make their dreams come true in the US of A.
While this side of the story can span across multiple posts on UD, the point that has to be made is that there are obviously employers who have completely legal companies hiring H1-B staff that are also in trouble because of the memo. A few such companies (disclaimer – we are not endorsing any of the companies responsible for filing the lawsuit, no conflicts of interest for any UD authors that we know of) are filing a lawsuit against USCIS and Dept. of Homeland Security (DHS).
Three companies that filed suit June 8, along with business-technology advocacy organization TechServe Alliance (PDF) and staffing advocacy group American Staffing Association, say they believe the government is overstepping its mandate and burdening these specialists with an intrusive and costly ruling that they estimate will cost more than $100 million. The three companies are Broadgate, Logic Planet and DVR Softek. Broadgate is located in Troy, Mich., while Logic Planet and DVR Softek are both in Edison, N.J.
David Leopold, of the American Immigration lawyers association has this to say on the AILA blog (the post dated February, this year) :
How have we come to a point in time where the H-1B category in and of itself is so disdained and mistrusted? Of course I’m aware that instances of fraud have cast this category in a bad light. But I think that vehemence of the administrative attack on the H-1B category is so disproportionate to the actual statistics about fraud. And interestingly, the disproportionate heavy-handed administrative reaction comes not from the agency specifically tasked with H-1B enforcement—the Department of Labor—but from CIS, CBP and State. Sometimes I just have to shake my head and ask myself what makes people so darn angry about a visa category that, at bottom, is designed to bring in relatively tiny number of really smart people to work in U.S. businesses of any size. It has to be a reaction against something else.
To me, this is a valid question that is legally and politically correct. The motive of the US govt., however is clear. Stopping H1-B workers in the hope that the jobs will be awarded to Americans. The technically feasibility of this can be debated for a long time to come, but at best it does appease folks demanding protectionism, and to some limited extent gives valid hope to American workers laid off from IT jobs.
We will continue to follow the responses to this lawsuit and keep our readers posted of updates, but in the meanwhile fire away some civil and clean comments about your views on H1-B visa process and consultancy companies. Please do not mention particular companies/persons by name – this is probably not the appropriate place for it anyway.
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