The guidelines for the H-1B visa stipulate that its use does not adversely affect American workers. Companies that are not careful about their use of the document meant to attract foreign talent to the U.S. job market could find themselves at the wrong end of an expensive lawsuit.
Recent litigation, filed against Walt Disney World and two global consulting companies, claims that the defendants hired foreign individuals - mostly from India - to replace employees who were citizens of the U.S., according to The New York Times. The terminated Disney staff were not given the opportunity to find new jobs with the company, costing them their work at the expense of H-1B visa-holders, they allege, which is a violation of the rules guiding the work documents.
How the H-1B visa works
The H-1B visa is designed to give workers from other countries a chance to succeed in certain industries in the U.S. The idea of attracting foreign talent is designed to create opportunity for these individuals and further American ingenuity. Occupations that the visa covers include the following:
- Certain fashion models.
- IT employees.
- Life sciences professionals.
- Medicine and health experts.
- Financial services.
- Business management.
- Other specialty occupations.
Employers who breach the guidelines that apply to the H-1B visa by using it to hire unqualified individuals or displacing employees who are U.S. citizens, among other violations, are placed on a list held by the Department of Labor. The visas are reserved for employees with highly specialized skill sets, such as those of the IT workers terminated by Disney in favor of foreign individuals. The litigation has brought attention to not only the plight of individuals let go by Disney, but also numerous others in IT, administration and other fields who have been replaced with H-1B visa-holders.
"The DOL initiated an investigation into H-1B visa-holder hiring."
The class action against Disney and two consulting companies
For the first time in H-1B history, The New York Times explained that two individuals - Leo Perrero and Dena Moore, the former Disney employees displaced by foreign IT specialists - have filed a lawsuit against both their former employer and the consulting companies used to locate the non-citizen new hires. Perrero and Moore, along with over 200 more former Disney employees, were allegedly let go in favor of H-1B visa-holders, and they claim in their class action lawsuit that this is a violation of the rules guiding the visa.
"I don't have to be angry or cause drama," Moore, who was employed by Disney for 10 years, told the news outlet. "But they are just doing things to save a buck, and it's making Americans poor."
Following an uproar over the displacement of American workers, the DOL initiated an investigation into H-1B visa-holder hiring by Disney and Southern California Edison, a utility company that laid off employees in 2014.
Potential changes to the H-1B visa program coming
There have been numerous attempts to reshape the H-1B visa program to prevent situations such as those alleged by Moore and Perrero. For example, The New York Times reported that Congress renewed a fee that had previously lapsed, mandating larger companies pay $4,000 for each new visa. Additionally, moving an immigrant with one of the visas from one organization to another will also cost $4,000.
Senator Bill Nelson, a Florida Democrat, suggested downgrading the H-1B cap from 85,000 to 70,000 to lessen the potential negative effect of the visas on U.S. citizens. Numerous presidential candidates have also suggested making changes to the visas in an effort to encourage companies to look toward citizens. What the visa program looks like in the future is not certain, but what is definite is that employers should be sure to comply with guidelines to avoid the litigation Disney faces or a DOL investigation.
Lawsuits and investigations can be expensive, and Disney is facing these expensive due to the alleged negative effects experienced by U.S. citizens let go in favor of H-1B visa-holders. Employers should make every effort to ensure compliance regarding their hiring documents and visas. Whether it is the Form I-9 or their use of the H-1B visa in question, companies must understand the guidelines in place and make sure their hiring teams are well aware of them.
Concerning H-1B visas, there is little to do besides ensuring knowledge of the rules that apply to them. However, when it comes to the Form I-9 employers can integrate solutions into their hiring processes to mitigate mistakes and keep storage policies compliant. Otherwise, companies could find themselves in costly situations.