Making Things Worse

Sorry, everyone, but this will be another “Told ya so!” post, commentary on yesterday’s unanimous jury decision in favor of Tata Consultancy Services, finding that TCS does not discriminate against US workers.

I’ve long warned activist critics of the H-1B work visa program that they were shooting themselves in the foot with their obsession with the IT outsourcing firms such as TCS — what I term the “Intels Good, Infosyses Bad” syndrome (IGIB). Under IGIB, it is presumed that the outsourcing, “rent a programmer” firms like Infosys and Tata are the main abusers of H-1B, while the “Intels,” firms that hire H-1Bs from the foreign student populations at US universities, use the program responsibly.

I’ve explained numerous times that, not only is the IGIB premise incorrect — the Intels are highly culpable too — but also the activists’ emphasis on IGIB will be a political disaster. In the end, Congress will enact some mild sanctions on the Infosyses while rewarding the Intels, with an expanded H-1B program and a “staple a green card to their diplomas” act. In short, the activists’ IGIB strategy/mentality will make things worse, with MORE foreign workers than before.

Well, with the TCS verdict, now it’s happened, though in a slightly different manner. The jury unanimously sided with Tata, setting a (moral if not legal) precedent. Sorry, H-1B activists, but you have indeed made things worse for yourselves.

I’ve long held that cases like this one do not have a firm legal basis. More on that shortly, but first, how could the plaintiffs’ legal counsel possibly have chosen Oakland as a venue? This is one of the most liberal areas in the nation — large minority population, and very liberal whites — and as a liberal myself I say, good for them. But apparently the jury saw this in solidarity-with-People-of-Color, resist-Trump terms.

As reported by Bloomberg,

The trial casts a spotlight on work-visa programs that companies use to bring overseas workers to the U.S., a practice President Donald Trump has criticized in his protectionist push. TCS, Asia’s largest outsourcer, and rival Indian information technology staffing firms Infosys Ltd.and Wipro Ltd. have all been squeezed by the Trump administration…

Mumbai-based TCS denies any unlawful bias in its U.S. operations and says in court filings that the Caucasian American leading the lawsuit was removed from one of its projects and ultimately terminated over “performance concerns.”

Ah yes, Trump is working to protect lazy, incompetent whites against competition from Immigrants of Color. This would resonate with any upstanding progressive Oaklander. How could a juror show her face around Lake Merritt or the Temescal district after voting for the plaintiffs and thus failing to support minorities and quelle horreur, siding with Trump?

Suing TCS in Oakland? What was lead plaintiffs’ counsel Daniel Kotchen thinking?

Actually, I had warned Kotchen (he and I have served on a couple of panels together) that I’ve long believed that discrimination on the basis of national origin is the wrong grounds for a lawsuit, going way back to the Guy Santiglia case in 2002. Yes, there is discrimination involved, but NOT on the basis of national origin. Instead, it’s discrimination on the basis of immigration status (US citizens and green card holders vs. work visas)  He found my comment interesting but has proceeded anyway.

The H-1B-critic activists, notably including the immigration reform organizations, have viewed the Infosyses as the low-hanging fruit, the most obvious abusers. Now with this verdict endorsing TCS’ hiring practices, a JURY verdict mind you, the activists have shot themselves in the foot.

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39 thoughts on “Making Things Worse

    • I don’t know the answer to either of your legal questions, but again, I would emphasize that this was a JURY trial. It says that ordinary citizens do not sympathize with the H-1B critics. It encourages the politicians to ignore the critics. To me, this is huge.

      Liked by 1 person

      • amen.
        I’ve been saying for nearly a decade.

        As of 2015, 93,093,580 people have not been impacted by a h-1b, or any type of guest worker visa.
        The best paying jobs, totalling 42,034,730 are beginning to comprehend it, but they do not understand it.

        We have to educate the public.
        That is why I begged for donations for nearly a decade.

        We have to be fighting this battle on radio, tv, and printed news media.
        This takes money.
        We have the money between all of us.

        But very few of us have done anything other than complain.

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    • From the Bloomberg link,

      “U.S. District Judge Yvonne Gonzalez Rogers in Oakland scaled back the case to focus only on allegations about bias in firings, after concluding there was insufficient evidence to back up the claim that TCS discriminated against non-South Asian job applicants.”

      Wow!! The judge threw out the part about discriminating against non-South Asian job applicants!

      According to one source, “Appeals …. are usually based on arguments that there were errors in the trial’s procedure or errors in the judge’s interpretation of the law.” It seems to me that the plaintiff can appeal the judge’s decision to throw out part of the lawsuit.

      It’s suspicious that the plaintiff did not have a right-to-sue letter from the EEOC. Perhaps the EEOC did not get involved in the case because the plaintiffs/class action members were not members of a protected class.

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      • Apparently this is standard procedure; if you’re suing because you were fired, you cannot claim discrimination in hiring. This is exactly what happened in a case in which I was serving as an expert.

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  1. I’m not sure I understand either the verdict or your argument. It has been patently obvious for decades that both American and Indian companies discriminate – egregiously – against Americans on the basis of national origin. The continued existence of the H1B programme represents dysfunction of American society, and this verdict represents dysfunction of the US judicial system.

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  2. I do not know the details of the case, but I am guessing the plaintiff was unable to grovel sufficiently for the low wages in the way that those with H-1B must. In the U.S. – the jury knows (often by personal experience) that an employer is entitled if they wish, to expect groveling, and if you don’t like it you leave. The real issue is that citizens would not be forced to consider working in those conditions for those wages, if there were not H-1B’s willing to do so.

    Liked by 1 person

  3. I don’t see what great power employers have over H-1B visa workers (L1_A and L1B, yes) given the ease a worker seems to have moving to other employer when a petition is denied.They even seem to change employers once they are in the green card queue. Why an employer would continue sponsorship after an employee leaves is beyond me. That the green carder-in waiting is allowed to retain a priority date when the petition for the worker is canceled by the employer and the worker does not have another active one at that time also makes no sense.

    I don’t understand why green card-in-waiting status continues when the petition for the job that the guest worker holds which is the basis for the green card filing is denied because the position is not a specialty occupation and/or there is not the proper employer-employee relationship and/or the worker does not have the necessary educational requirements for the H-1B job.. I would expect that a green card would have a higher level of compliance in these areas. If anyone has further information about this, I would appreciate the link to the resource.

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  4. So, Tata played the race card, and used deep political divisions in this country to win a lawsuit in one specific case.

    I am not sure that it is as significant as presented in the article.

    But it does show who is the “enemy of American people” and who is fighting for them.

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  5. Discrimination torts are among the hardest to prove especially when the defendants can show counter examples.

    That is unless the plaintiff is a member of a protected class.

    Apparently being a native born white displaced tech worker is not one.

    Most likely the plaintiffs lawyer was taking a payoff to make TCS look good.

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  6. I don’t blame the foreign workers, their employment agencies, or the companies that hire them. I blame our government for facilitating the decline of America. Steve Bannon says both parties are comfortable managing the decline of the American worker and he’s right.

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  7. Ditto, you’re absolutely right and I’ve always sided with you on this topic. In fact, what the h1b activists should be demanding is to not have any type of employer sponsored work visas at all, and if the US wants to have a guest worker visa program, give it to I individuals. On a diferent note, in fact the Indians and Indian companies love white / American employees and in the long run they might be more beneficial to Americans. It’s the corporate America that never had any regard for their nation or its people. Most of American companies park their profit abroad (Apple Google Microsoft) as also most of them outsource any and every job they can to a cheap labor locale. This has been the mantra of corporate America for a very long time. And what you should be teaching your audiences here is this reality and how to be self sustaining, not care about job and retire at 35 like Mr. Money Moustache!!!

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    • And this will never happen that is a free-form visa system because owning slaves is an old American virtue and a basic foundation on Which that country was built.

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  8. Not just that all the wealthy people from countries like India (similar to China, Brazil, Russia and others) make their money on the backs of poor people (steal) and eventually park their money on America or Europe and move their. It is this practice that you should aim to stop instead of your activism against hardworking 20 somethings that will do well no matter where they live! Yes

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  9. A fact related to my last point is the number of EB5 applications from China, who are now facing longer and longer wait time, not so far behind are the Indians and Vietnamese from this category.

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  10. Mr. Matloff, I read your arguments and I am completely on your side, as I do understand the ramifications and the ground situation.

    But if you do a quick google search “Staff Engineer Google Linkedin” you would easily see 50% of them are Indians. I am willing to hear your views on why this is so, that every major Tech company has Indians in very high positions ?

    I am really trying to understand that phenomenon, and what your learned opinion on that is.

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    • The “Infosyses” (outsourcing firms that directly import H-1Bs from abroad) are almost all-Indian. The “Intels” (firms that hire H-1Bs from the foreign student pools at US universities) also tend to be heavily Indian, especially as you point out, at the management level — why is that?

      The Chinese engineers would say it’s due to the Indians having better English, but that is not really the issue. Instead, the Indians tend to have better communications skills in general; good verbal and writing skills are valued among the Indian educated class, whereas this is not the case in China.

      That said, you seem to have badly misunderstood my posting. I never said the Infosyses are not culpable; I merely said that (a) the Intels are ALSO culpable and (b) the H-1B critic-activists are making things worse, not better, by focusing on the Infosyses.

      Liked by 1 person

      • China and India: We are looking at 2 cultures where cultural nepotism is expected. They will have hell to pay in their internal circles for not hiring at least one of the hundreds on their request list.

        And I am working out of an east coast city.
        What corporate IT office will we lose next?
        You are relatively safe in a major state U, but even some colleges are becoming like this.

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  11. As a gray haired American programmer I saw contractor wages stay level or begin to drop. Switching to project management and business analysis, hourly contractor rates have gone up some, but not much. After interviewing with Indians for multiple jobs, all at Silicon Valley companies, all with no success, I am getting the impression that Indians in hiring positions have an anti-age and possibly an anti-white American bias. As a contractor looking for jobs, the ratio of Indians to Americans in employment agencies is at a minimum, 10 to 1.

    At this point I don’t look at contracts at companies south of San Francisco, since it ends up being a waste of time.

    Given the trend since the early 90’s, it’s obvious corporate interests have influenced Congress to enact favorable laws for employing foreign workers. We could blame globalism and buy the Trump/Bannon blather, but we have more existential problems in that our political infrastructure has allowed financial interests and a conservative minority to dominate our governmental policy generation. This is to the detriment of American workers. What we need is a balance between globalism and protection of American workers. But given this example of liberal excess, and what we’ve seen of Trump anti-immigranr hysteria, it’s questionable that we can arrive at anything that protects Americans and takes afvantage of globalism.

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  12. People who have skills that are truly unique (not ordinary programmers) are welcome and should be able to move freely for competitive wages, not be tied to an employer. This would not have such a severe impact on suppressing wages for U.S. technical workers.

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  13. Would like to add 20 something “Indians” as most other Asians and Europeans of this age group want to come to America it’s very very easy for them. As your headline says, don’t single out Indians. Let’s not forget what happened in Iran in 1979, there are 5 humongous US consulates in India, many many high stake Us assets in the country, thousands of non-indian Americans (i say non-Indian because Indian Americans are third class and belong no where) visit/work in country!!!

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  14. >> Would like to add 20 something “Indians” as most other Asians and Europeans
    >> of this age group want to come to America

    Right. I am sure there are 100 million people in east Asia and Europe who would like to come and live and work in northern California; however, I don’t think there is room for all of them.

    The question I have is this: If H1Bs are truly rare worker top talent why do they have to come here to found their Fortune 500 companies or patent the “next big thing”?

    If they are that rare and talented they shouldn’t they be able to do it in their home country?

    That would be a win-win. They could stay in their country of birth and build wealth there.

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  15. My EEOC H-1B complaint was decided:

    “American is not a national origin group as defined by Title VII of the Civil Rights Act, as amended.”

    Citizens are not a protected group. The attorney should have known this. He probably did know this and was working for the other side.

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  16. I googled ‘Staff Engineer Google LinkedIn’ and I found at the most 10% Indians. Everyone should test out the claim someone made on this blog. Someone over here is consistently trying to convey the wrong impression about Indians in US Tech companies.

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  17. “In the end, Congress will enact some mild sanctions on the Infosyses while rewarding the Intels, with an expanded H-1B program and a “staple a green card to their diplomas” act.”

    Yup, the president tweeted on Friday, Jan 11. “H1-B [sic] holders in the United States can rest assured that changes are soon coming which will bring both simplicity and certainty to your stay, including a potential path to citizenship,”

    CBS news wondered, “what prompted Mr. Trump’s tweet.” I guess the Higher Education Lobby is a likely suspect. There has been a decline in the number of international students.

    CBS news wrote, “H-1B visa holders can apply for a green card to obtain permanent residency — but even a green card does not equate to citizenship.”

    Google, h1b citizenship trump, to find stuff on the Trump tweet.

    Like

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