[logfromblammo]

The intent of the H1B is supposedly to provide foreign workers for labor categories where no American national can be found to perform the work. If there is any training going on there at all, that is proof of fraud. If the ones doing the training are American nationals, that just makes it more egregious.

Hadean justice would alter the H1B visa category such that the guest worker could perform no function for the company other than to train American nationals to perform adequately in the labor category that required the imported foreign worker.

Clearly, if it is advantageous to import a skill, it would be more advantageous to replicate it during the limited time that it is available.

[tyre]

> If there is any training going on there at all, that is proof of fraud.

This is not true.

Let's say you need someone with expertise in a very specific category, like embedding javascript into Postgres. You find the one person in the world who does that and hire them using an H1B. Your whole company uses Macs and she is used to Windows.

Is training that new employee to provision an OS X machine fraud?

No.

[logfromblammo]

If it is a job requirement to use Mac OS, and the guest worker does not know Mac OS, they are not qualified for the job. If they can meet the requirements by being trained in Mac OS, a local could also meet the requirements by being trained in javascript and Postgres.

Either the company is being deceptive by making the job requirements much narrower than is reasonable, or in claiming that no local could meet them.

Realistically, there are probably at least 18000 people worldwide (top 0.1% of software pros) who could hear that you want javascript embedded in Postgres, and--without any training from you whatsoever--be able to do that two weeks later, and at least 3500 of them are currently authorized to work in the US for any employer. But the people you can get without a visa will want at least $150k a year to do that for you, because they know they are elite software professionals in the US, whereas the person you import may only expect $90k.

Please note that the requirements you mentioned as an example are experience based requirements, not aptitude based requirement. Many of us on HN, given a sufficient lead time, can meet any aptitude based requirement that a company might care to advertise. But none of us can have 5 years of experience with a specific technology tool in less than 5 years.

The sort of requirements that might non-fraudulently require an H1B worker would include fluency in a natural language other than English, or knowledge of certain areas of computing, such as artificial vision, natural language processing, distributed network architecture, custom hardware interfaces, cryptography, and the like. When you need a cryptographer, you ask for someone with a proven aptitude in cryptography, not someone with 5 years of experience in AES, X.509, and "Bitcoin hacking". Structuring requirements that way is a means to intentionally disqualify everyone but the pre-selected applicant. And it is not limited to gaming the immigration system, either, but as a means to discriminate against protected classes. Someone with 30 years of C experience is undoubtedly an experienced software professional, but requiring five years of experience in Node.js is a great way to weed out that applicant for being too old, rather than being unable to do the job.

[prostoalex]

The entities are different. Disney moved the contract to an outsourcing company. 8The outsourcing company8 then could not find an American national to perform the work.

[logfromblammo]

And just never mind that the outsourcing company's entire business model revolves around convincing the client and the government that no person currently authorized to work in the US could possibly do the job.

Just as hiring someone to kill for you does not absolve you of the legal responsibility for murder, hiring someone to lie for you does not absolve you of the legal responsibility for fraud.

[prostoalex]

I am not questioning the moral aspect of it, but technically speaking three events happened.

1) Disney decided to outsource a project (a program? entire department?) to Cognizant.

2) Cognizant brought their own staffers onto the project, those staffers were brought into the US on an H1 program.

3) Disney included mandatory training of Cognizant employees into severance package of their departing employees.

Neither (1), (2) or (3) are illegal by themselves.

The outcome of 1+2+3 suggests there might have been fraud happening at stage 2, where Cognizant had to prove to US Department of Labor that they could not find an appropriate US resident to take the job and that they were paying the prevailing rate.

Considering Cognizant received an approval on H1 visas, they must've indeed advertised for the job paying prevailing wage and found no one. The loophole seemed to allow them to advertise for an opening in the city they're incorporated (Teaneck, NJ) for prevailing wage in Teaneck, NJ, which might (or might not) be the prevailing wage in Burbank, CA or Anaheim, CA.

What do you expect the court to do in this scenario? Forbid Disney (and related companies) from outsourcing anything in the future? Forbid New Jersey contractors from winning contracts in California and bringing their consultants on-site? Forbid Disney (and companies in similar situation) from including mandatory training into severance packages? Mandate H1 employees are bound not only to the employer in question but specific geographic location they were hired for, so a New Jersey employee is forbidden from working on a project in a different state?

Each one of those decisions has some unintended consequences when you look at the larger picture than Disney+Cognizant.

[logfromblammo]

I wouldn't have a problem forbidding all companies from requiring an employee terminated involuntarily and without cause to train their own replacement before they are tossed out on their ear. Actually, I wouldn't even mind forbidding any work duties that were not typical prior to the notice of termination.

But that doesn't need to be done by the government. It seems like the sort of situation that a good collective bargaining agreement could handle. Such an oddity might guarantee a minimum severance package that is not contingent upon the employees symbolically cutting their own throats.

I believe that immigration law already requires an LCA to be filed for each non-temporary work location. If Cognizant intended to employ workers in California longer than 10 days, it would have to pay the prevailing California wage, not the prevailing New Jersey wage.

H1B workers already are "bound" to the area of the LCA. If the company wants to move them permanently, it has to file another LCA for them.

None of those requirements prevented this from happening.

Disney had a duty, which could not reasonably be delegated, to ensure that its contractor would be obeying the laws that Disney is expected to obey. If such a duty did not exist, there would be a huge, obvious loophole in the law that would allow anyone to break any law at will, just by creating a throwaway corporation to do it, and paying the skeleton crew a scapegoat bonus.

[prostoalex]

> might guarantee a minimum severance package that is not contingent upon the employees symbolically cutting their own throats

Also known as unemployment benefits?