Justice Dept. says replacing U.S. workers may bring lawsuit

Employers who use H-1B workers could face legal peril from Attorney General Jeff Sessions

H-1B Visa statue of liberty against american flag
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Critics of the H-1B program have little to celebrate, so far, from President Donald Trump. He promised reforms of the visa program during the campaign, but nothing has happened of consequence -- at least until Monday.

The U.S. Department of Justice (DOJ) issued a warning to H-1B employers not to use the visa program to discriminate against U.S. workers. And it promised to investigate and prosecute employers who do so.

By itself, the Justice Department notice may be a poor consolation prize to critics who wanted more. But if the DOJ files a lawsuit alleging discrimination against U.S. workers "because of their citizenship or national origin in hiring, firing and recruiting" it may be breaking ground.

The IEEE-USA, in particular, has long argued that it isdiscrimination to replace U.S. workers. It's not alone. When Southern California Edison laid off IT workers after hiring H-1B-using contractors, 10 U.S. senators signed a letter asking the Justice Department to look at the situation. Nothing happened.

Russell Harrison, director of government relations at the IEEE-USA, said Monday's notice might be important.

"We have them (DOJ) putting out a public statement suggesting that something bad is happening in the H-1B program," said Harrison. "But this isn't action."

The change in tone at the DOJ, which has previously limited itself to prosecuting H-1B fraud cases, may be the result of its new attorney general, former Sen. Jeff Sessions (R-Ala.). As a senator, he frequently attacked the visa program.

The Justice Department office that handled discrimination cases had long been called the Office of Special Counsel. It was since renamed by Sessions to the Immigrant and Employee Rights Section.

John Trasvina, who was special counsel from 1997 to 2001, said that even then "there was serious congressional concern about the danger of high-tech employers favoring H-1B holders over U.S. engineers.

"Little has changed over that period of time - the industry has grown dramatically in significant part because of the contributions of H-1B visa holders, employers maintain that they can't find U.S. engineers, and laid-off or older engineers say they are passed over for younger, cheaper and widely available engineers either trained in U.S. colleges or trained abroad," said Trasvina, who is dean of the University of San Francisco School of Law.

"U.S. engineers can and should make these claims and have them investigated by the Justice Department and adjudicated by immigration judges," he said.

It's not clear why the Justice Department didn't bring a discrimination case previously. IT workers may have been unaware that they can file complaints, and many workers are are fearful of jeopardizing severance or reemployment prospects. But over the past year, the IEEE-USA has been urging affected employees to file complaints if they believe they have been discriminated against.

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

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