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Iowa Company Accidentally Says No Americans Need Apply

Always proofread before your vendors act in your behalf

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BY Suzanne Lucas - 17 Jun 2017

Legal series

PHOTO CREDIT: Getty Images

Hiring in tech can be difficult, just like it can be in many fields, so why would you want to exclude the vast majority of people in the United States from your applications? American Technology Consulting ran a job posting on Zip Recruiter that had as it's headline, "Java Developer - (H1B Only)." It spread pretty quickly across the internet. I found this from a reader who sent me this tweet from Sara Blackwell, President of Protect US Workers:

 

Unfortunately, though, American Technology Consulting didn't write the ad. Tara Jose, President of ATC told me via email:

American Technology Consulting is committed to being inclusive in the recruiting of all of its consultants, employees, and candidates for any and all positions. Unfortunately a third-party vendor recently used language when posting an advertisement on our behalf that was inappropriate and absolutely unacceptable to American Technology Consulting. The concept of "H1B Only" is wholly contrary to our company's values and the way we operate our business.

To be clear, American Technology Consulting did not write, condone, or authorize this language in the ad. As soon as we became aware of the ad, we demanded it be changed, explained why it would never be something our company would represent, and then proceeded with auditing other advertisements tied to our recruiting efforts and relationships.

We will continue to work hard to help ATC clients find the talent they need to fuel the American economy - and we will do so committed to equal opportunity and the best working relationships for our clients and the hard working people we help to serve them."

It's bad enough when your company does something stupid and everyone finds out about it, but when your vendor does it and you get the blame, it can be a PR nightmare that you pay for.

And in case you're wondering what the problem is with the ad, it's that it violates one and possible two laws.

First Law: National Origin Discrimination

By definition, an H-1B visa holder is not a US citizen. If you advertise a job for H-1B visa holders only, you're saying, "American citizens are not welcome." ATC definitely didn't want to say this to the world. What should have been said is, "H-1B visa holders welcome to apply" along with language about being an equal opportunity employer.

Employment Attorney Jeanette K. Phelan from Constangy, Brooks, Smith & Prophete looked at the ad for me and verified that, as written the ad violates the law against national origin discrimination.

In the US the only question you can ask is if someone is legal to work in the United States or if they need sponsorship. Companies are not required to sponsor people who do not already have legal permits (such as a green card), but certainly, can sponsor such people. What the can't do is hire only US citizens, or in the case of this job posting, hire only non-citizens.

Second Law: H-1B Visa Regulations

The H-1B is a visa designed to allow companies to hire employees who are not currently authorized to work in the US (i.e. US citizens, Green Card Holders, or other work visa holders), but only after companies have been unable to find qualified candidates. Attorney Phelan described the restrictions for H-1B visas by describing the form required to hire such an applicant:

In this form, the question is asked: "Is the beneficiary an H-1B nonimmigrant exempt from the Department of Labor attestation requirements?" You can answer yes to this question if either of the following applies: (1) the person being sponsored is being paid at least $60,000; OR (2) the beneficiary holds a master's degree or higher degree in a specialty occupation related to the employment.

There are several USDOL attestation requirements with regard to H1B visas. The employer must attest to the following:

1. Wages. The nonimmigrant worker is being paid at least the local prevailing wage or the employer's actual wage, whichever is higher

2. Working conditions. Provide working conditions for nonimmigrants which will not adversely affect the working conditions of workers similarly employed.

3. Strike, Lockout, or Work Stoppage: There is no strike, lockout or work stoppage in the named occupation at the place of employment

4. Notice. If there is a union, notice must be provided to the union. If there is no union, then notice must be posted at the place of employment.

These requirements apply to ALL H-1B petitions.

However, if the employer has 50 or more employees and H-1B visa holders make up 15 percent of the company or the company has made willful violations in the past, then they are held to a higher standard and must prove that the H-1B visa application meets these qualifications:

1. Non-displacement of U.S. workers in employer's workforce

2. Non-displacement of U.S. workers in another employer's workforce;

3. Recruitment and hiring: In your recruitment you did not find U.S. workers who are equally or better qualified than the H-1B worker.

So, if the job does not meet the above qualifications, it would be illegal to hire someone on an H-1B visa.

Why Do Companies Want to Hire People on H-1B Visas?

CNN Tech spoke with H-1B and Outsourcing Expert Ronil Hira, an associate professor at Howard University who explained that H-1Bs aren't necessarily given to the best and the brightest, as there's a lottery involved, H-1B workers earn "substantially less than the average wage an American worker earns in those occupations in those locations," and startups are unfairly disadvantaged.

In other words, the big players can get employees for substantially less than they would have to pay an American (or Green Card holder), making it harder for legal residents to get jobs and harder for new companies to compete and harder for the worker to make ends meet.

To try to close some of these loopholes, California Congressman Zoe Lofgren is pushing for a new threshold: $130,000. While that might seem high, the $60,000 floor was set in 1989.

Additionally, the Department of Labor announced a crackdown earlier this year. In a press release, they stated:

The U.S. Department of Labor announced plans today to protect U.S. workers from H-1B program discrimination by providing greater transparency and oversight.

The program allows employers to hire highly skilled foreign workers in specialty occupations. The H-1B visa program authorizes the temporary employment of qualified individuals who are not otherwise authorized to work in the U.S. In recent years, some employers have used the H-1B program to hire foreign workers despite American workers being qualified and available for work or even to replace American workers.

The department fully supports the U.S. Department of Justice in cautioning employers who petition for H-1B visas not to discriminate against U.S. workers, as well as the U.S. Department of Homeland Security's measures to further deter and detect H-1B visa fraud and abuse.

H-1B visas are definitely a matter of controversy, but you can't say you'll only hire people with these visas, which American Technology Consulting knows, and now, so does its vendor .