Discrimination by nationality? Jobs not published either

OK, I have been working at my company for the second run, after originally being laid off due to them choosing to have me train an H1 visa'd employee to do my job instead of me. For some reasons (perhaps I did a better job?) they actually hired me back 7 months later to do the same job, in a group of other people. This job is on an IT helpdesk, and we now have a certain percentage of employees, some consultants from the parent company (me being one of those), and a good number of these H1 visas, technically from another division of this parent company.

Now my issue, is that there has been history of new positions opening up a level above my current one, positions that I definitely would be interested in. Instead of selecting the best person for the job, they've been secretly priming one of these H1 persons for that position. Once that person has become up to speed, they just move them over, effectively promoting them. I have voiced concern, stating that I would want a position like that, and have definitely proven my worth.

They then did it again, this time, taking another H1 visa employee, one that had recently been FIRED. They rehired him since we were greatly understaffed. A few months later, while he was being trained behind the scenes, they moved him up to that same department. Now I want to know how this is OK to do. Besides this, I have not even received a cost of living raise, after working a full two years consecutively.

I look forward to hearing back from someone if possible.

1 answer  |  asked May 20, 2004 9:43 PM [EST]  |  applies to New York

Answers (1)

David M. Lira
H1B Visas

I am increasingly running into questions involving employees in the US on H1B visas. These employees are raising issues that are still relatively new to me, and I'm still learning.

The purpose of H1B Visas is to allow employers to bring to the US employees with skills that are hard to find in the US workforce. To bring an employee to the US on an H1B visa, the employer actaully has to enter into a contract guaranteeing that employee a job for a set period of time, at a set amount of pay.

H1B employees are not supposed to be hired to displace American employees. For this reason, V1B employees are supposed to be paid a prevailing rate. That is, employers are not supposed to bring in V1B employees because they are willing to work at lower pay rates than American employees. If an H1B employees is getting less than the prevailing rate, the H1B employee can actually bring a proceeding to force the employer to pay a prevailing rate. The Immigaration and Naturalization Service can also start an investigation to force an employer to pay a prevailing rate, even if an H1B employee does not complain. I don't know if the INS has a procedure by which an American employee can complain about a prevailing rate violation, but it might. The American employee probably wouldn't get anything out of making a prevailing rate violation, but there probably are anti-retaliation provisions that might protect the complaining American employee.

What I am seeing, despite what the law says, is employers bringing in H1B employees at rates much lower than the prevailing rate. To the V1B employee the rate still looks great, because it is higher than anything they can get at home. They also just want to come to the US. H1B visas are temporary, but a lot of employees coming over find ways to extend their stays, and they are finding ways to get green cards and eventually US citizenship. Because they want to stay in the US, these V1B employees hate rocking the boat. They are willing to tolerate a great deal of abuse.

It sounds like your employer is favoring the H1B employees because they will work longer and harder for a lot less. If this favoritism is illegal, it would be illegal only to the extent that the employer's behavior violates the laws and regulations governing H1B employees.

posted by David M. Lira  |  May 21, 2004 10:29 AM [EST]

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