Americans That Lose Their Job When An H-1B Worker Gets Hired
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Americans That Lose Their Job When An H-1B Worker Gets Hired

Foreign H-1B workers can fit in a successful American workforce. They can also give the employer an opportunity to take away an American's job.

There is a consequence to hiring a foreigner worker with a temporay H-1B visa. The opportunity to spend the money needed to hire the foreigner ends.

When that money was used to pay an American worker employed by the employer, the American can lose their job. The job loss is called displacement.

Giving The Job Guarantee to A Foreigner Instead of An American

The H-1B program was started to fill up open positions in American workforces with foreign workers that have the merit and skills uniquely fit for a select position. Replacing an American with a temporary foreign worker is not a just hire. Giving the foreigner that can come to the country, or stays here, an open door can not stop the employment of any person working in a position in the Amerian workforce the employer will take away to replace with the foreigner's position.

Adding a foreigner to the enterprise is considered a successful hire. Ending an American's opportunity is consisdered a loss.

The "Essentially Equivalent" Position

The positions do not have to be exactly the same. If the position passes the "essentially equivalent" test, the hire and lay off can be a suspect displacement. Giving a foreigner with comparable qualifications and experience an opportunity, that employers can agree withstands the same judgment, to fulfill the same core responsibilites in a position in the same commuting area the American worked in fits the displacement pattern. As long as the hired foreigner has what it takes to do the American's work, the hire stands in the way of the American's employment.

The "Lay Off"

The reason for the lay off does not have to be said to be to hire an H-1B worker, but it can not be the American employee's failure to follow rules or a disagreement with the employer. In all cases a lay off causes the loss of an American's job. There are several reasons that makes the end of employment not one that counts as a lay off that can get an meployer into trouble for violating the "no displacement" rule.

  • inadequate performance
  • violation of workplace rules
  • cause
  • voluntary departure
  • voluntary retirement
  • expiration of a grant
  • expiration of a contract

There is always an exchange of an American's position for the foreigner's position that the American does not have control over. When they are offered another position that is similar and pays the same or better pay and benefits as an option, the job loss is not considered a lay off. 

The Employers

Two types of employers can get a civil penalty for violating the "no displacement" rule. An employer that depends on H-1B workers to succeed, called an H-1B-dependent employer. And, an employer that violated the program rules in the past, called a willful violator employer.

Employers that send an H-1B worker to another employer to get hired have a responsibility to guard against a displacement of an American worker by the secondary employer. They have to ask the secondary employer if they have displaced or will displace an American.

Opportunity Taken Away

An open position is never the same as a position first filled by an American. Finding room for one more worker on the workforce adds to the opportunities found in America. Taking an American's job to give it away to a foreigner breaks down the country's guarantee of a work deal.

Source:

Wage and Hour Division, U.S. Labor Department, Fact Sheet #62L: What benefits mut be offered to H-1B workers? (2008).

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