Friday, October 14, 2016
Federal Court Dismisses Claim That Disney Violated H1-B Visa Law
According to published reports, the lawsuit claimed that two American IT workers were laid off and forced to train foreign replacements with H1-B temporary visas after Disney and two contractors, Cognizant Technology Solutions and HCL America, allegedly colluded to make false statements when they applied for the temporary visas. However, a federal judge rejected this assertion, finding that none of the statements put at issue in the complaint were adequate to sustain the former workers’ cause of action.
As discussed in a previous blog outlining the different temporary visas that the United States makes available to non-immigrant workers, a H1-B visa allows domestic companies to employ foreign workers in specialty occupations that require technical expertise in specialized fields such as in architecture, engineering, mathematics, other sciences, and medicine. It is highly-sought by businesses, with limited visas available and many applications filed annually.
The plaintiffs pinned their case on the argument that the companies had violated clauses of the visa law requiring employers to show that hiring H1-B workers “will not adversely affect the working conditions” of other workers in similar jobs. The law requires large outsourcing companies that employ many H1-B workers to certify that incoming workers will not displace any similarly employed U.S. worker within six months of the visa application.
The outsourcing companies successfully argued that the law did not apply to them because the plaintiffs who were displaced were not originally their employees. While the Court accepted the defendants' argument, it granted the plaintiffs an opportunity to re-plead an amended lawsuit. However, whether plaintiffs have an alternative legal theory to base their claims remains in doubt.
The effects of the decision may have a negative effect on the American workforce, particularly in the IT field, where H1-B workers are highly sought. It is now theoretically confirmed that an outsourcing company can effectively supplant American workers of a company it services without concern for H1-B visa laws protecting those native workers.
*Gene Berardelli may be contacted at: GeneBerardelli@ipglegal.com.
Gene is a New York street-smart attorney with an extreme passion for success. Gene specializes in litigation, arbitration and general corporate law for New York-based and international clients. He, also, is the host of a popular New York talk radio program.