Agencies Investigate H-1B Outsourcing Firms; Layoffs Provoke Controversy

July 16, 2015

By Immigration Group

This article was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Laura Danielson is an active member.

We note that several companies have been in the spotlight recently due to hiring H-1B workers and laying off U.S. workers in similar positions.

According to reports, the Departments of Labor (DOL) and Justice (DOJ) are investigating several companies for possible labor and immigration law violations. The companies include several Indian outsourcing firms that provided H-1B workers to Southern California Edison (SCE), a power company. The latter company hired Infosys and Tata Consultancy Services to bring in H-1B workers and laid off hundreds of U.S. workers, some of whom said they had to train their replacements.

DOL sent a letter to Rep. Judy Chu (D-Cal.) on June 10, 2015, stating that the agency “has recently opened investigations related to Tata and Infosys’ provision of H-1B workers to SCE.” DOL also noted in the letter that it had “recently referred allegations concerning SCE and its contractor consultants to the Office of Special Counsel for Immigration-Related Unfair Employment Practices” at DOJ.

Meanwhile, U.S. Citizenship and Immigration Services (USCIS) sent a letter to Rep. Chu dated May 29, 2015, saying the agency was following up on concerns such as those Rep. Chu had raised “regarding [SCE] to ensure that petitions are entirely consistent with our legal framework.” The letter said USCIS would “work with the Department of Labor to review visa petitions and labor condition and certification applications, as appropriate.”

The labor condition application (LCA) instructions in ETA Form 9035CP state, among other things, “The employer attests that H-1B, H-1B1 or E-3 foreign workers in the named occupation will not adversely affect the working conditions of workers similarly employed. The employer further attests that nonimmigrants will be afforded working conditions on the same basis, and in accordance with the same criteria, as offered to U.S. workers.”

At Disney/ABC Television in New York and Burbank, California, where a reorganization included a plan to lay off U.S. workers and hire H-1B workers, according to reports, Disney subsequently canceled the layoffs. That followed on the heels of several hundred layoffs at Walt Disney World in Orlando, Florida. One laid-off IT worker complained that “[s]ome of these folks were literally flown in the day before to take over the exact same job I was doing.” He said he had trained his replacement.

Obviously, these tactics do not make for good press and can be harmful to the H-1B program and reputation. We urge you to contact us whenever any layoffs are anticipated that could impact H-1B employees.