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The H-1B catch-22

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Here's an interesting aspect of the H-1B question.

The H-1B catch-22 [NL][NL]By Michelle Zelsman [NL]June 8, 2001	
	WITH THE SLOWER ECONOMY and major companies regularly announcing
layoffs, what's happening to the oft-touted solution to the IT labor
shortage: the H-1B worker? To find the answer, one must look below the
job-market's surface for conflicting ideas about what's really happening to
the members of this immigrant population.[NL][NL]One theory arises from the
practicalities of being on a work visa. Murali Krishna Devarakonda, an IT
H-1B worker employed as a principal consultant for Shaktisoft, an IT
services company in Fremont, Calif., and a board member of the Immigrants
Support Network, says that when the H-1B worker loses his or her job, "It's
a double and triple whammy -- you lose your job, your legal status, and your
home.[NL][NL]"If I'm out of status, I won't say so because the INS
[Immigration and Naturalization Service] will deport me. But I may be able
to find another employer and hopefully, INS will be lenient and approve a
new H-1B petition for me," Devarakonda says. Often, he says, the laid-off
H-1B worker can keep a low profile from the INS until a new employment
opportunity, complete with sponsorship, comes along.[NL][NL]Benching a
layoff[NL][NL]There's another question being investigated by the AFL-CIO and
the Department of Justice: Are H-1B workers being laid off as frequently as
their American counterparts? The answer, sources say, stems from the
definition of layoff.[NL][NL]A layoff isn't always what it appears to be. It
is neither a termination for cause nor a voluntary separation of employment.
This is especially important to H-1B workers, under the benching provisions
of the American Competitiveness and Workforce Improvement Act of 1998, says
Charity Wilson, senior policy analyst at the AFL-CIO, in
Washington.[NL][NL]"If an H-1B worker has a lapse in work for a reason other
than that caused by the H-1B worker, he must continue to be paid at the fair
market rate," says Wilson of the benching provision. The AFL-CIO believes
that "rather than benching or laying off the temporary worker whom they will
have to continue to pay anyway, companies will lay off the U.S. worker
first."[NL][NL]Another problem arises. To lay off a comparable American
employee before an H-1B employee may be in violation of 8 USC Section 1324b
of the Immigration Reform and Control Act (IRCA) of 1986, says John
Trasvina, special council for immigration related unfair employment
practices at the Department of Justice. This citizenship status law, as the
IRCA is sometimes referred to, states that except in limited circumstances,
employment decisions cannot be made based upon citizenship. In other words,
employers cannot recruit, hire, or terminate a person based upon their
protected status -- U.S. citizens, nationals, permanent residents, temporary
residents, refugees, and those granted asylum. H-1B employees are
nonimmigrants and therefore not in the protected status.[NL][NL]"On all
sides, this is a new issue," says Trasvina, one that was not on the horizon
just a year ago. "Layoffs were not an issue that concerned Congress as it
debated the [H-1B visa] increases last summer," he says. In October, the
number of H-1B nonimmigrant visas available for approval in FY2001 rose to
195,000 from 107,500.[NL][NL]"We are aware of the potential for these
violations," Trasvina says of how benching and layoffs intersect and affect
application of the citizenship status law. "If one consequence is that an
employee [in protected status] is out of a job, that's tragic. But that's
it. On the other hand, another employee is in jeopardy of being kicked out
of the country. It's not beyond the stretch of the imagination that the
employer would more strongly consider and be sympathetic to the potential
consequences of the H-1B worker," he says.

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