Thread: USCIS Does Right Thing with H-1B, Then Gets Sued

USCIS Does Right Thing with H-1B, Then Gets Sued – Some Speculation

By David North, June 14, 2010

USCIS has just been sued by an employer's group for doing the right thing with a segment of the H-1B nonimmigrant worker program, according to an AP story.
http://www.google.com/hostednews/ap/art ... wD9G7BPQO2

It had not been clear to me earlier this year that the policy memorandum on the use of the H-1B program by the so-called "body shops" (who play the same role as crew leaders in the harvest of farm crops) was very significant, but the court case suggests it was the right move.

The job shop corporations must be hurting, or fear future losses, or they would not have gone to the expense of the lawsuit.

As background, the H-1B program has two inherent flaws: 1) it is designed to allow U.S. corporations to avoid hiring U.S. high-tech workers and to replace them with less well-paid foreign workers; and 2) even within those unattractive parameters it (perhaps unconsciously) permits additional abuses and fraud.

The so-called Neufeld memo of January 8, discussed in an earlier blog of mine, at least nibbled at the second group of problems, raising the question of whether the job shops were, in fact, U.S. employers, who would be qualified to use the program, rather than middlemen who should not have access to it. The job shops complained at the time and there were reports of DHS airport inspectors turning back people with H-1B visas headed to job shops.
http://www.cis.org/north/new-h1b-memo

The news article quoted a leading IT spokesman saying, "The government by decree reversed a long-standing policy that allowed IT [information technology] staffing firms [i.e., job shops] access to the H-1B program." The government's response was that it was just clarifying the existing rules.

There are three possible scenarios as to what happens next, two common ones, and an obscure one.

One possibility is that the two sides will continue the fight to the courtroom, and let a judge decide.

Another possibility is that the two sides will conduct what I call an "adversarial negotiation" leading to a genuine compromise of some kind. Both sides will want to avoid the costs and uncertainty of a court decision; each side will worry that it may lose in court. As a result of these motivations a settlement would be pasted together.

The third possibility, which I hope is not in the cards in this instance, it what I term a "cozy negotiation."

I learned about this technique some decades ago when I was the assistant to the U.S. Secretary of Labor for farm labor. The department, in the period right after the exploitative Bracero Program for Mexican nonimmigrant farm workers had come to a well-deserved termination, had devised a new set of rules for a much smaller of influx of Mexican nationals into the California fields.

A poverty law firm, a really excellent one, called California Rural Legal Assistance (CRLA), sued the department over the new rules, saying that they were not friendly enough for U.S. farmworkers, and were too tolerant of grower abuse of Mexican nonimmigrant workers.

The next time I saw the secretary (the recently deceased W. Willard Wirtz), I protested that CRLA were friends of the administration, and why were they suing us?

He said "you're not a lawyer, are you David?" I agreed, and he explained that he was not upset by the CRLA suit.

I do not know what happened either before the suit or in the negotiations that followed, but I did pay attention to the results. The department and CRLA settled the case by tightening the regulations beyond their original shape; this was done in a way that annoyed the corporate growers and protected the workers. That settlement was then confirmed by a federal court judge. We in the department were pleased with the outcome.

Meanwhile, the Department of Justice lawyer who was assigned to the case let it be known that the department could have beaten the poverty law firm in court if it had wanted to do so, and the growers were furious.

That strikes me, in retrospect, as a case of a cozy negotiation. Let's hope that USCIS is not heading in that direction in H-1B job-shop case. USCIS, appropriately, is not discussing its legal strategies.

In the months ahead we will watching to see what happens with this bit of litigation.

http://www.cis.org/north/h1b-job-shop-lawsuit

David North's blog

The Center for Immigration Studies is an independent, non-partisan, non-profit research organization founded in 1985. It is the nation's only think tank devoted exclusively to research and policy analysis of the economic, social, demographic, fiscal, and other impacts of immigration on the United States.

You are so right … they are nothing more than "body shops" . With this flood of H1B's it makes the American youngster wonder if an IT job will be available of if they have to work for less money at a "body shops" .

Originally Posted by justme

You are so right … they are nothing more than "body shops" . With this flood of H1B's it makes the American youngster wonder if an IT job will be available of if they have to work for less money at a "body shops" .

I have seen IT salaries shrink from $24 an hour to $8 an hour for skilled, experienced work. Obama and his minions are extremely fanatical about using the guest-worker programs and their illegal use in body shops to throw Americans out of work as a way to "foreignize" the US. If you take the same principles he uses to protect American jobs and apply it to his handling of the Gulf Spill you will understand that he is acting that way on purpose because he wants the spill to damage the economy. That is the kind of person we have elected...

Yes, citizens might have to acquire false papers and an accent just to get a job - sick.

That is exactly what happened to my husband. He went through it all - having to train his replacement - to being offered $8 an hour - after reaching the top of his field as a Mexican descent citizen - in plastics. The ascent was difficult due to the prejudice but his minority status did not protect him or his wage once there.