Court slams displaced American worker
Court slams displaced American worker
Date: Tuesday, June 12, 2007 4:56 PM
<<<<< JOB DESTRUCTION NEWSLETTER No. 1707 -- 6/12/2007 >>>>>
"I know nothing!"
--- Sgt. Johann Sebastian Schultz, Hogan's Heroes
Not much surprises me anymore, but a statement made by circuit court judges
Michel, Lourie, and Rader, in a Federal Claims Court in Texas, has me shaking
my head in disbelief.
In brief, an American citizen named Mark Watson was replaced by an H-1B while
working at EDS. Finding a new job has been difficult because companies such as
IBM and Bank of America have shunned him in favor of H-1B visa holders.
Employers are kicking Watson while he is down.
Watson decided to fight back by filing a lawsuit and has continued the fight
in court for several years. He represents himself against a cabal of high-
priced corporate lawyers and hostile government bureaucrats.
Several legal documents for the Watson case have been archived at:
http://www.jobdestruction.info/ShameH1B/Library.htm
You can read the recent court decision at:
http://www.fedcir.gov/opinions/07-5051.pdf
In that fedcir document the judges had this to say about Watson's
complaint:
The district court dismissed Mr. Watson's case because 8 U.S.C.
' 1182(n) does not create a private cause of action on behalf
of an employee allegedly terminated in favor of an H-1B
nonimmigrant employee even if that status was obtained by the
means of a fraudulent application.
Did you catch that? Judges of a U.S. court actually said that American
citizens have no legal basis to file lawsuits when they are replaced by H-1B
visa holders -- even if the employer or the visa holder obtained the visa with
a fraudulent application.
In other words -- IF YOU ARE A U.S. CITIZEN AND YOU ARE REPLACED BY AN H-1B
YOU ARE SCREWED, DON'T EXPECT OUR LEGAL SYSTEM TO HELP YOU BECAUSE THE DECK OF
CARDS HAS BEEN STACKED TO INSURE YOU WILL LOSE -- ESPECIALLY IF "The
Department Against Labor" (DOL) IS INVOLVED!
The judges cite 8 U.S.C. ' 1182(n) in their decision. You have got to wonder
if they ever read the document because among other things it requires that
employers take "good faith steps" to find an American employee. Firing an
employee and rejecting a qualified American violates all pretense of "good
faith". If something like this doesn't warrant an investigation, just what
would?
8 U.S.C. ' 1182(n) can be found at this link, and the excerpt below totally
contradicts what the judges said:
http://149.101.1.32/crt/osc/ref/8usc1182n.htm
(G)(i) In the case of an application described in subparagraph
(E)(ii), subject to clause (ii), the employer, prior to filing the
application--
(I) has taken good faith steps to recruit, in the United
States using procedures that meet industry-wide standards and
offering compensation that is at least as great as that
required to be offered to H-1B nonimmigrants under
subparagraph (A),
United States workers for the job for which the nonimmigrant or
nonimmigrants is or are sought; and
(II) has offered the job to any United States worker who
applies and is equally or better qualified for the job for
which the nonimmigrant or nonimmigrants is or are sought.
In Watson's case there is credible evidence that these provisions were
violated by EDS, IBM, and Bank of America. So how did Michel, Lourie, and
Rader get away with this casual dismissal?
There are provisions in the law that on the surface appear to require that
investigations be done if there are legitimate complaints that employers
haven't made a "good faith" effort to hire American citizens. Certainly firing
a US citizen to replace him with an H-1B couldn't be construed as a "good
faith" effort. Of course the hitch is that somebody has to decide what
constitutes a valid complaint, and when investigations are to be done.
Keep in mind that investigations take time and effort, and that would mean DOL
officials would have to remove themselves from the golf course to actually do
some work.
(2)(A) Subject to paragraph (5)(A), the Secretary shall establish a
process for the receipt, investigation, and disposition of
complaints respecting a petitioner's failure to meet a condition
specified in an application submitted under paragraph (1) or a
petitioner's misrepresentation of material facts in such an
application. Complaints may be filed by any aggrieved person or
organization (including bargaining representatives).
The judges' contention that fraudulent applications would be an acceptable way
to replace Americans is just not supported by the law because fraud is a
deliberate "misrepresentation of material facts". Judges should have more
common sense than to say something so stupid.
If you have read this far you might be wondering what the DOL discovered when
they did an investigation of the case. The answer is ABSOLUTELY NOTHING!
Thanks to the DOL, no investigation took place so nothing was discovered.
The DOL administrator blew off the case simply by declaring that there was no
violation of the law. Without a violation they decided there was no need to
investigate, and therefore they didn't have to give Watson a hearing.
In all three complaints, the administrator of the Wage and Hour
Division of the DOL determined the complaints did not allege
reasonable cause to believe that a violation under the Act had
occurred. Without a sufficient complaint, the administrators
declined to give Mr. Watson a hearing.
If this is to be believed, the administrator has the power to make completely
arbitrary decisions about whether there is reasonable cause for the DOL to
take actions against employers. In the Watson case they simply said his case
has no merit so they will take no action. It's worth noting that the
"administrator" is a faceless person who isn't named in the document. It says:
the administrator of the Wage and Hour Division of the DOL has
complete discretion to determine if a complaint presents
reasonable cause to believe that a violation under the Act
occurred and if a complaint warrants investigation.
The DOL Administrator chose to "see no evil, hear no evil" by simply deciding
not to investigate the case. No investigation means no evidence, and no
evidence means no hearing. Sgt. Schultz would be proud of this convoluted
logic!
If the Administrator finds an investigation unwarranted, the Act
does not grant either a hearing or an appeal. Id.
The administrator decided that none of Mr. Watson's complaints
presented a reasonable cause to believe that a violation under the
Act occurred. Therefore, the trial court dismissed Mr. Watson's
complaint for want of Tucker Act jurisdiction. The administrator
also chose not to investigate Mr. Watson s complaints.
EPITAPH: Whether Watson has a valid complaint or not is immaterial because the
DOL decided that they didn't want to investigate it to find out the facts.
They chose to be blindfolded in order to ignore Watson's complaints.
Since no investigation was done the court was able to dismiss the case. The
circuit judges rejected all appeals so now Watson's only choice is to appeal
to a higher court. Watson's filed a Writ of Certiorari with the Supreme Court
on June 8, 2007.
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