Job ads, lawsuit show US companies discriminating against Americans

Neil Munro White House Correspondent
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Some U.S.-based companies are discriminating against job-seeking American professionals and instead hiring job-hopping guest workers, including foreigners enrolled in colleges or holding H-1B visas.

The skewed hiring is visible in numerous online help-wanted ads, and in a legal settlement won this month by the Justice Department.

The ads use keywords — typically “OPT,” “CPT” or “H-1B” — to attract the attention of guest workers, while deterring applications by unemployed American professionals who normally search for conventional keywords, such as “software engineer,” “nurse,” “writer” or lawyer.”

“It’s discrimination,” said Donna Conroy, the executive director of Bright Future Jobs, a nonprofit trying to aid U.S. workers.

The underlying cause of the discrimination, she said, is that many U.S.-based immigrant entrepreneurs prefer to hire workers and foreign students from their home countries.

The problem is widespread, she said, because many of the discriminating companies are now doing work that was outsourced by the major companies that have laid off many Americans.

For more than a decade, companies such as Microsoft and Deloitte have been reducing full-time employees while outsourcing skilled work to so-called “body shops” that arrange short-term contracts with skilled experts.

Many of the “body shops” are owned by foreign companies or immigrant entrepreneurs. That’s a two-fer for big U.S. companies, who are also under pressure from federal diversity rules to steer work towards minorities, said Conroy.

The widespread discrimination by subcontractors will spur the growing controversy over the proposed immigration rewrite that is now being pushed by President Barack Obama, progressives and business groups.

Many business groups are lobbying to ensure the rewrite allows companies to hire additional guest workers for U.S.-based jobs.

But the economy has still not recovered from the government-boosted, decade-long real-estate bubble that burst in 2007. Many skilled professionals remain unemployed or have transferred to jobs that don’t use their skills.

Some politicians are responding.

“I support efforts to bring retain highly skilled entrepreneurs from around the world to spur growth,” Democratic Louisiana Sen. Mary Landrieu said, after the president used his State of the Union speech to call for more skilled immigration. But, she added, “I am focused on strengthening our homegrown workforce, so we have more PhDs, master’s degrees and innovators coming from Louisiana and across the country.”

Companies’ recruitment of foreign guest workers in lieu of Americans was highlighted this month by a federal lawsuit of Avant Healthcare Professionals, a Florida-based company.

“Hundreds of Avant Healthcare Professionals’ Internet-based job postings contained discriminatory language, impermissibly preferring foreign-trained individuals seeking permanent residence or H-1B visa sponsorship over U.S. workers,” said a Feb. 6 statement by the department.

The company paid $27,750 to settle the lawsuit, but did not admit any wrongdoing, said company CEO Shari Sandifer.

“Nothing has been proven — they had an accusation, we adamantly deny that accusation and we deny that any of our ads were discriminatory,” she told The Daily Caller. The legal settlement, she said, “supports our position that all we did was market to a segment of the market.”

The company hired overseas workers because it can’t find enough trained American workers, she said.

The segment of the market eyed by Sandifer consists of the many guest workers working in the United States.

The best-known category are foreigners holding H-1B visas, which allow them to work in the United States for up to six years.

There are numerous other categories for guest workers, including H-2 visas for agricultural workers, L visas for intra-company transfers, and O visas for people with “extraordinary ability or achievement.” The law also P visas for traveling entertainers, TN visas for workers from Mexico and Canada, and E-3 Visas for Australians.

The “Curricular Practical Training” category allows people enrolled in U.S. colleges to work up to 12 months for 40 hours per week.

Foreign graduates of U.S. colleges can also use the “Optional Practical Training” program to work up to 29 months in the country.

In 2008, President George W. Bush expanded the OPT program to allow foreign graduates of U.S. colleges to work for up to 29 months. Previously, the graduates could only work for 12 months.

In June 2012, amid high unemployment, President Obama expanded the OPT program to allow graduates to get jobs in 400 broad categories of work. One category is titled “computer and information sciences, other.” Other categories are forestry and behavioral sciences.

Numerous U.S. universities help arrange CPT and OPT jobs for their customers.

For example, Stratford University in Fall Church, Va., tells its foreign recruits that they can use the CPT program to do “up to 40-hours per week if you are in-status and enrolled in a full-time course load … OPT is limited to 12-months …. [but] OPT can be extended for an additional 17-months for degrees which fall under the Science, Technology, Engineering, and Mathematics (STEM) classification.”

Many U.S. companies recruit H-1B, OPT and CPT guest workers, and some job advertising sites are designed to serve the guest-workers.

For example, Desi-jobs.com posted hundreds of job for OPT and CPT holders, according a Feb. 21 check by TheDC. The site posted 13 such ads in February for multiple jobs at companies in Illinois, New Jersey, Georgia, Massachusetts and Virginia.

“Desi” is Indian slang for Indians living in the United States.

“Now Hiring CPT/OPT/GC IN NJ,” said one ad posted Feb. 19 by TriStar Consultancy, based in Iselin, N.J. The company is a so-called “body shop” that recruits people to work under contract at other firms.

The targeted ads also appear ins larger job-sites, such as Dice.com.

A Feb. 20 ad at Dice.com, for example, used Indian terms to offer U.S. sales jobs to students or graduates of Indian universities, including those without any work experience.

“Education : UG- Any graduate with excellent communication and verbal skills. MBA preferred (Fresher or college passout who willing to make a carrer in Sales),” said the ad, which also asked for “OPT / CPT / H1 transfer / F1 Candidates.” The ad was posted by a CCS Globaltech, based in Poway, California.

“Fresher” is a term for a first-year student in college. “UG” means undergraduate. “Passout” means graduate.

“I’ve thousands of ads like those in my collection,” said John Miano, a New Jersey lawyer former programmer and board member of the Programmers Guild, which lobbies on behalf of info-tech workers. In some outsourcing companies, he said, “almost every last one of their technical employes are on H-1B or other visas.”

One cause of this preference for foreign workers is that some immigrant entrepreneurs prefer to hire people from their home countries, said Conroy.

The entrepreneurs bring many home-country workers to the United Stats for training, and gradually increase the ability of the home-country workforce to execute transnational outsourcing contracts and boost the home country’s wealth, according to Conroy.

“It is all about avoiding Americans,” she said.

For example, said Conroy, Avant’s use of H-1B visas sharply increased 2006, when it hired a former nurse, Lesley Hamilton, from New Zealand to a VP of operations. Hamilton’s “international nursing career began in 1989 when she graduated in New Zealand and worked in Oncology before moving to Memphis, TN as an RN for her first US experience,” according to Avant’s website.

In the computer and software sector, most firms are part of an India-based “body shop“ system that recruits students in Indian for temporary work in the United States.

“In this practice, a group of consultants — body shops — in different countries works together to recruit IT [infotech] workers [and] then farm out workers to clients as project-based labor; and upon a project’s completion they either place the workers with a different client or ‘bench’ them to await the next placement,” said the summary of a 2006 book, “Global ‘Body Shopping: An Indian Labor System in the Information Technology Industry,” by a U.K.-based researcher, Biao Xiang.

The major body-shop firms include Tata Consulting and Wipro Technologies. In 2012, those two companies brought in 8,440 H-1B workers into the United States for work with major firms such as Microsoft, Oracle, Texas Instruments, IBM and Intel.

On its website, CCS touts its certification as a “Microsoft Gold Certified Partner,” which is often sought by companies looking to upgrade or change their Microsoft-developed software.

The guest workers are often paid at the same rate as U.S. workers, even though many are still students and need additional training, Conroy said. “Wages are not the central issue,” she said.

Employment discrimination law bars discrimination based on nationality, including American nationality, she said.

That’s why the companies use the visa-related codes to attract attention from job-seeking immigrants, while hiding opportunities from job-seeking Americans, she said.

One firm that recently posted an online ad seeking guest-workers is Surya Systems Inc., in Penrose, Pennsylvania.

When asked by TheDC about the ads, a person who identified himself as the company’s CEO and president, Ravindrana Hajeebu, said the company had already stopped using the CPT and OPT code works in want-ads.

“We stopped it long back … [but] I don’t know if my team has put up something I don’t know,” he told TheDC. “We would hire anyone.”

When asked if he employs any whites on the 20-person staff, the CEO said “at the moment, I don’t have anyone.”

“In the past, I did have some,” he added.

His website claims that he has supplied workers for major U.S. infotech firms, including Microsoft, IBM, Cisco, Northrop Grumman and Oracle, as well as for the state governments of New York, Ohio and Colorado.

Tristar’s owner declined to give his name, but told TheDC that his company does hire Americans and non-minorities. “Yes, of course …. [but] every company has their own policy,” he said.

When asked by TheDC for a breakdown of employees’ citizenship or race, Tata’’s flack evaded the question.

Tata “complies with all applicable federal, state or local laws … employment and advancement [decisions] are made on the basis of an individual’s qualifications,” said a statement from company representative Michael McCabe.

Despite the problems, there’s little public or government recognition of the domestic market for foreign workers.

For example, during the current debate over immigration, several legislators have proposed legislation to let foreign students work in the United States, even though the CPT program exists for that purpose.

Some legislators say that the current programs are too small, and don’t disadvantage U.S. workers.

But the H-1B program visa rules allow companies to annually import large numbers of guest-workers under the H-1B program, even if many Americans are ready and willing to do the same work.

“The H-1B program does not require employers to provide evidence that they have first ‘tested’ the U.S. labor market by trying to hire a U.S. worker,” said the GAO report.

If employers wants to get a permanent Green Card for an employee, such as a family member, they have to go through a legal obstacle course. However, some immigration lawyers specialize in the task and have developed workarounds to the federal rules.

In fiscal year 2012, Obama’s deputies provided 134,780 H-1Bs to U.S.-based companies, up from 99,591 in 2011, according to the industry magazine, Computerworld.

In 2012, Accenture, Microsoft, IBM and Deloitte imported a total of 8,000 H-1B workers. Three Indian-owned body shops won 17,400 visas. The leading H-1B winner was Cognizant, a spin-off of Dunn & Bradstreet, which used 9,281 H-1Bs, according to a February report in Computerworld.

The number of foreigners working under CPT and OPT rules is not public, but a June 2012 report in ComputerWorld calculated that at least 8,000 foreigners had won OPT extensions to work for 29 months, and another 5,000 people were seeking the extensions.

Companies are increasingly using OPT and CPT workers because they can switch jobs easier, and because they don’t have to pay Medicare or Social Security taxes, said Conroy.

There’s much more data available about the better-known and very controversial H-1B program, which provides work permits for perhaps 650,000 people in the United States.

Although touted as a program for high-skill immigration, companies use the H-1B visas to recruit many mid-skilled people.

For example, in 2011, 114,000 H-1B visas or extensions were given to companies hiring people with bachelors’ degrees or less, according to a March 2012 report by the Department of Homeland Security

Companies only sought H-1B visas for 14,129 Ph.D.-holders among the 269,597 foreigners approved in 2011, according to the report, titled “Characteristics of H-1B Speciality Occupation Workers.” That amounts to 11 percent of the guest workers.

Another 140,000 recipients had professional degrees.

Each visa or extension lasts three years, so the data suggests that the United States has more than 650,000 guest-workers under the H-1B program, said Miano. That number provides roughly 10 percent of the nation’s infotech workforce, and is enough to force down salaries nationwide, Miano said.

The government does not reveal how many foreigners are working in the United States under the OPT and CPT rules, Miano said.

Each year, the United States accepts roughly 1 million new immigrants. (RELATED: Obama’s economy helps immigrants)

The DHS report says roughly half of the H-1B guest-workers are in the computer and software industries. Approximately 10 percent work in architecture, engineering or surveying, and 10 percent in health care.

The remaining 30 percent work in the culture sector, management, social sciences, law and other non-technical fields.

Roughly 8 percent work in education. For 2011, the State Department document says three-year H-1B visas or extensions were awarded to 943 writers, 761 fashion models, 202 librarians and museum experts, 3,013 art-related employees, and 4,928 under “occupations in social sciences.”

The report also said that 58 percent of the guest workers were from India, that half earned more than $70,000 in 2011 and that 26 percent were older than 35.

Unless the government changes the rules to aid American students and graduates who want to work in the high-tech sectors, “American technology workers will just be wiped out,” said Miano.

However, Congress hasn’t done anything to curb the abuses, and may soon pass an immigration bill that will worsen the problem, he told TheDC.

“We’re up against the wall here. Congress just treats us like garbage.”

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Neil Munro