What Does 2017 Hold for Hiring H-1B Workers? - American Society of Employers - Anonym

What Does 2017 Hold for Hiring H-1B Workers?

Last month, 30 former Disney Corporation employees filed a lawsuit against the firm claiming they had been laid off for the purpose of being replaced with lower-cost foreign guest workers.  The complaint, originally placed with the EEOC, alleges that Disney made the decision to release the IT workers based specifically on their national origin and race, replacing them with Indian nationals who were all guest workers hired as temporary employees on H-1B visas.  The suit is the third of its kind against Disney, and follows a trend in the last several years of employees bringing actions against employers who replace them with work visa holders. 

 

The H-1B visa has been a primary vehicle for employers to fill vacancies in high tech skill areas with talent that comes from countries rich in STEM talent, such as India, on a non-immigrant basis (up to six years, with extensions).  The U.S. opens only 85,000 new H-1B visa slots per year, which are often claimed within a short period of time or awarded by a lottery system.  The visas have been a point of debate in Washington.  Proponents hold that they provide a way for employers to hire talent in disciplines that are both vital and scarce in the U.S. labor supply, such as in information technology or engineering.   Opponents argue that they take jobs that would otherwise be filled with U.S. workers and are used as a cost-saving device for employers, since foreign employees may be willing to work for wages below-market. 

 

The incoming presidential administration will likely bring a new dynamic to the H-1B oversight and enforcement process.  Jeff Sessions, the yet-to-be confirmed nominee for Attorney General, has been a strong opponent of hiring foreign guest employees over U.S. workers and has been a vocal critic of the H-1B system, claiming that it has been abused to the detriment of the American labor force.  Andrew Puzder, nominee for Secretary of Labor, appears to be supportive of guest workers, writing in a 2015 Wall Street Journal commentary that, “most studies conclude that immigration contributes to economic growth,” quoting one study which found that “temporary foreign workers…boost U.S. employment.”  President-elect Trump has been less consistent in his stance at various points in the election, but most recently released a statement that he “will end forever the use of the H-1B as a cheap labor program, and institute an absolute requirement to hire American workers first for every visa and immigration program.  No exceptions.” 

 

What ultimately transpires remains to be seen, but increased scrutiny is likely on the horizon. Regardless of the political climate, employers are well-advised to carefully follow Department of Labor requirements for hiring guest workers, as penalties can be steep and employee litigation becomes more frequent.  The H-1B visa, for example, has multiple requirements that must be met by employers to maintain compliance, including:

·       Informing U.S. workers of the employer’s intent to hire a foreign guest worker by posting notices or notifying a bargaining unit representative if the workforce is unionized. 

·       Paying the prevailing wage in that geographic area or the company’s actual wage for the position, whichever is higher. 

·       Ensuring that employees on H-1B’s receive the same benefits as other employees in that position.

·       Maintaining documentation and records of these and other related items. 

 

As the sponsorship process can be complex and expensive (typically $3,000 to $5,000), consulting with legal counsel is recommended, and immigration attorneys are often involved to help steer both employers and potential H-1B holders through the process.

 

The coming year promises to be an interesting one on a number of HR fronts. What’s likely to change the least in the foreseeable future will be employer challenges in filling difficult positions—whether those be with U.S. or foreign workers.       

 

 

Sources:  dol.gov; Foxnews.com; WorkForce.com; Wall Street Journal 

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