We have written quite a bit about using Department of Labor and USCIS tools to stand up to exploitative H-1B employers, but there is another agency that is also pursuing them: the Department of Justice.
The Department of Justice (DOJ) enforces immigration related anti-discrimination provisions of the Immigration and Nationality Act in the employment world. In the context of H-1B body shops, DOJ is pursuing employers who target H-1B and other temporary workers for hire and discriminate against U.S. citizens and permanent residents. These employers preferentially recruit H-1B and H-2 employees because they know they have control over their visas and their employment. Unlike with US citizens or green card holders, who can quit a job anytime and move to another employer, H-1B workers are tied to their petitioner. Some H-1B employers take advantage of their H-1B employees’ restricted status by underpaying them, benching them and threatening to fire them if the wrongdoing is reported. In addition, with the recent crackdown on H-1B program violators, we are now seeing employers focusing on OPT students who they can also control due to these workers’ desire to land a job that will then offer them an H-1B opportunity upon expiration of their OPT status.
The INA prohibits such recruiting and hiring discrimination and imposes penalties and remedial measures for the harmed employees, including reinstatement of those who are terminated in retaliation for complaining about an employer’s unlawful conduct. By compelling employers to treat all job candidates equal, the law’s aim is to reduce an employer’s ability to exploit H-1B and other foreign temporary workers.
This week, DOJ went after one such company for allegedly violating the anti-retaliation provisions of the INA law. Whiz International LLC, an IT staffing company based on Jersey City, NJ, is accused of firing its receptionist when she complained about the company’s alleged practice of selecting for job interviews H-1B and other temporary foreign workers, while rejecting US citizen and permanent resident candidates. DOJ’s lawsuit is seeking monetary damages for the terminated employee, financial penalties for the alleged violations, and a prohibition against future discrimination by the employer.
The procedure for filing a complaint and the handling of the complaint itself with the DOJ is different than the process used by DOL or USCIS. With DOJ, an aggrieved worker can file what is known as a “charge” directly or through a representative such as an attorney. DOJ will investigate the charge and decide whether to file a complaint with the Administrative Law Judge.
If DOJ declines to file a complaint, a worker may still pursue his or her complaint directly by filing it with the Administrative Law Judge. If you are an H-1B worker and are considering the filing of a DOJ complaint, or if you filed a DOJ complaint but DOJ has declined to pursue your complaint, before you act further, you should consider speaking with a competent attorney about your rights and options.
Information about the Whiz International lawsuit, as well as the DOJ complaint process, are available on the DOJ website here: http://www.justice.gov/crt/about/osc/
For more information about the legal services we offer H-1B workers, see our page here.