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H-1B Visas: Do Discriminations Still Exist in America’s Economy?

March 16th, 2018 by David Minces

The H-1B visa is a temporary work permit given to foreign workers in a specialty occupation. The process is highly political and has been subject to discussion in the most recent presidential election. Employers who discriminate against U.S. candidates in favor of those with H-1B visas are subject to prosecution by the Justice Department. But what about the other side? Could you be disadvantaged as a non-citizen because your employers knew they would have to go through the extra steps (and money) of setting up a visa? This question burdens many, including many of the foreign students studying in America hoping to find work here.

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Title VII protections

Under Title VII, enforced by the Equal Employment and Opportunity Commission on employers with 15 or more employees, employers are not allowed to discriminate based upon our national origins. These protections extended to employers with 4-14 employees under the Immigration and Nationality Act. This means that our potential employers with more than 4 employees cannot disqualify us as candidates based upon our place of births, our heritages, our associations with people of a different origins, and our statuses as citizens, permanent residents, temporary residents, asylees, or refugees. If we have an accent, we cannot be discriminated against unless our jobs require us to be able to communicate effectively in English, and this accent interferes with our ability to do so. Examples of jobs that would encompass this are teaching, sales, and telemarketing. We are also protected from hostile work environments that results from harassment due to your national origin. An employer would violate Title VII protections if the employer tolerated insults, taunting, or epithets that occurred as a result of one’s national origin.

Legal discriminations

However, companies are allowed to discriminate due to factors that are strongly associated with nationality, like citizenship requirements, height requirements, and others as long as these factors affect the performance of a worker.

Candidates who require employer sponsorship (generally through the H-1B visa program) are unfortunately in a particularly gray area due to the transition of political power. According to the EEOC, “Most employers should not ask whether or not a job applicant is a United States citizen before making an offer of employment.” We cannot be discriminated against simply for our statuses as citizens, permanent residents, temporary residents, asylees, or refugees. However, companies are not required to sponsor employees, a process that can take much time and money. During his campaign, President Trump criticized the current H-1B program and promised change. This puts employers in an awkward position because they do not know how rules regarding employment visas may be altered in the future. Many companies have already been averse to sponsoring workers due to the extra costs this takes. The process of sponsoring workers coupled with the uncertainties of how immigration laws may change in the future may be too much for a company’s risk appetite.

Trump’s actions are not without precedent. Employers in the past have abused the H-1B system to acquire foreign workers at cheaper wages by promising these workers the ability to live in the United States as an employment perk, despite the Department of Justice’s best efforts to prevent this. This problem occasionally arises to this day. However, in the struggle to find balance between fairness for American workers and acquiring the best talent abroad, many people, including those seeking work sponsorship, may be marginalized.

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What this means for those who need H-1B visas to work

In short, companies have the right to discriminate simply because of a candidate’s need for sponsorship. Because there are extra costs associated with hiring workers who need sponsorship, and because of the uncertainties about their abilities to work in the future, workers requiring sponsorship might be at a disadvantage when applying for jobs.

Options for students from foreign countries

A large portion of those who require company sponsorship to work are foreign students studying in American colleges. There are several ways these students can still get ahead though. By standing out as a stellar student, companies may be willing to overlook the extra costs related to sponsorship. This can mean achieving great grades and earning advanced, graduate-level degrees. Foreign students who like research might also consider the field, as the visa requirements there are generally less stringent. While these solutions might not seem fair, they might be the best advice under the current laws.

If you have experience with employment discrimination due to your national origin, due to your nationality being the United States or elsewhere, do not hesitate to contact us. Minces PLLC is dedicated to making sure that the most qualified candidate gets the job, wherever they hail from.

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