It seems like just yesterday dotcoms couldn't hire fast enough. Unable to find qualified employees stateside, many were hiring workers from overseas on H-1B visas, which allow "specialty" workers in occupations such as computer programming to enter the United States should demand in their fields exceed the available supply in the work force here. Demand was so great, the cap on the number of H-1B visas issued annually was raised in 2000.
But given the mass layoffs that have hit today's job market, employers of H-1B workers are coming under fire, facing accusations they're letting American employees go in order to hire applicants from other countries willing to work for less.
Because, in reality, H-1B workers must be paid at least the median wage in their field, the accusations seem to stem mostly from animosity. Vivek Wadhwa, founder and CEO of Relativity Technologies Inc. in Cary, North Carolina, had to downsize his software modernization company by 10 percent last year . The day before our interview, he laid off an American worker. "When deciding who should go, we were totally color-blind and visa-blind, and judged it on who was going to contribute the most to our economic health," says Wadhwa. "In the technology industry, we're so motivated by success and creating technology excellence, we can't afford to discriminate [based] on anything but competence."
Franklin Kury, a Harrisburg, Pennsylvania-based immigration lawyer, says the possibility of discrimination suits by American employees is slim to none, as H-1B is a law, free to be used. But whether it's the homegrown or H-1B employee you choose to let go, handle the case with the utmost sensitivity. Scour the employee's records and employment history to ensure there's valid evidence to provide reasoning for the termination. "You have to be able to show [the layoff] is justified on economic grounds and [has] nothing to do with their origin or ethnic background," says Kury. "Once [H-1B workers] are employed by an American corporation, they're subject to all the laws anybody else would be." And remember that H-1B workers have 10 days following the end of a job to leave the country, so try to give them enough advance notice that they'll have the opportunity to find other jobs.
- Reed Smith
(717) 257-3045, firstname.lastname@example.org
- Relativity Technologies Inc.
(919) 678-1500, www.relativity.com