Note

Fissures in the Valley: Searching for a Remedy for U.S. Tech Workers Indirectly Displaced by H-1B Visa Outsourcing Firms

Kenneth M. Geisler II

“If I could just change one law,” lamented Bill Gates, “it would be this.” What law provokes the ire of the Silicon Valley titan and co-chairman of the world’s largest philanthropic organization? Hint: it was at the center of a publicity maelstrom that struck the happiest place on earth—Walt Disney World—as well as one of California’s largest power utilities, Southern California Edison (SCE). In 2015, reporters revealed that Disney and SCE laid off  hundreds of their U.S. technology workers and replaced them with foreign visa workers supplied by outsourcing firms in an effort to cut IT (information technology) labor costs. Rather than denying the allegations, Disney and SCE argued that they had followed the letter of the law. Unfortunately, the law is on their side. At issue was section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (INA), a law that facilitates the country’s most commonly utilized and most contentious, highly-skilled foreign worker program—the H-1B visa.

Virtually all previous scholarship on the H-1B program has been devoted to proposing reforms to its legislative labyrinth. But a lack of data has only fueled heated debates that have shed little light on the dollars-and-cents of the H-1B visa. This Note instead takes the distinct approach of analyzing potential remedies for U.S. tech workers who allege their U.S. employer replaced them in favor of H-1B workers supplied by outsourcing firms.

Part I explains how the H-1B program’s protections—specifically, the labor condition application process (LCA) and its administrative remedies—have failed to hold employers accountable for discriminating against their U.S. tech employees. Part I concludes that the failures of the visa’s statutory regime necessitate a discussion of alternative remedies.

Part II analyzes the viability of claims brought under federal statutes: namely, the civil provisions of the Racketeer and Influenced Corrupt Organization Act (civil RICO), the Immigration Reform and Control Act of 1986 (IRCA), Title VII of the Civil Rights Act of 1964 (Title VII), and section 1981 of the Civil Rights Act of 1866 (§ 1981). Part II concludes that among these alternatives, Title VII and § 1981 offer the most promise for displaced U.S. tech workers.

However, it is still unclear whether these federal anti-discrimination statutes can effectively address H-1B discrimination. Part III argues that tech workers will ultimately achieve the greatest job security through reforming the H-1B statutory scheme. But rather than recommend the content of those reforms, Part III proposes the catalyst—a sustained campaign of litigation, unionization, and education—all with the aim of exposing the corporate exploitation of American and foreign tech workers.