The United States Citizenship and Immigration Services (USCIS) has issued a T-visa to a Filipino accountant who came to the U.S. on a H-1B visa and eventually became a victim of human trafficking.
Jacqueline Aguirre was hired as a staff accountant at Best Care Agency in Floral Park under the H-1B visa program that allows American companies to hire non-citizens to make up for skilled labor shortages in a given industry. Upon coming to the United States, Aguiree was promised to be paid $19 an hour for a 40-hour work week by the agency. Quickly, things changed and she was paid roughly half of her promised wage. The agency said that she would not be paid the full wage until she received a green card and that if she refused the lower wage they would discontinue her sponsorship and she could face deportation.
Best Care Agency promised to help her with the green card process and said they had the financial means to pay her the prevailing wage upon completion. Aguirre agreed to the terms to spare herself deportation. Eight years later her green card request was denied as the USCIS found that Best Care Agency did not have the financial capability to pay her the promised wage. She was placed into removal proceedings.
With the help of the National Alliance for Filipino Concerns (Nafcon) a lawsuit was filed on her behalf and, recently, the Eastern District Court of New York ordered Best Care Agency to pay nearly $300,000 in back wages, according to attorney Felix Vinluan, the immigration lawyer who handled Aguirre’s case:
“Aside from applying for T-visa, we also filed a federal complaint against Aguirre’s former employers for violating the Trafficking Victims Protection Reauthorization Act (TVPRA), forced labor, involuntary servitude, fraudulent inducement and negligent misrepresentation.
We are seeking compensatory damages by way of overdue wage adjustments worth at least $300,000, plus moral damages related to the abuse of Aguirre by her employers, as well as the suffering she had to undergo for having been put in removal proceedings,” he added.
T-Visas are issued for a period of four years to victims of human trafficking. Best Care Agency has been charged with knowingly luring Aguirre to work for a substandard wage with promises that they could not keep. Like many victims of H-1B visa abuse, the threat of deportation is used to create a scenario of servitude. T-Visas are often used to keep victims legally in the United States to help with ongoing investigations.
Since its inception in 1990, the H-1B visa has suffered from abuses. Unfortunately, the negative effects go beyond the victims themselves. Qualified individuals in the U.S. lose job opportunities and see their industry’s wages suppressed through this malevolence. Lobbied for in Congress by Bill Gates in 1990 to deal with what he saw as a “shortage of skilled workers,” H-1B visas are commonly used in Information Technology (IT). However, in the past 20 years they have been used by unscrupulous employers in a wide array of industries.
In a recent article about H-1B visas, writer Robert Cringely noted that the shortage of skilled workers is a myth and that the visas are used to cut labor costs:
A key argument for H-1B has always been that there’s a shortage of technical talent in US IT. This has been taken as a given by both major political parties. But it’s wrong. Here are six rigorous studies (1, 2, 3, 4, 5, 6) that show there is no shortage of STEM workers in the United States nor the likelihood of such a shortage in years to come.
You may recall a recent column where the IT community in Memphis, TN proved there was no labor shortage in that technology hotbed.
The whole labor shortage argument is total hogwash. Yes, there is a labor shortage at substandard wages.
Can all of this be just about money? Yes.
Often times, companies intentionally lower wages on job descriptions to force out qualified U.S. citizens, Cringley suggests:
It’s not hard to suppose from this information that an influx of H-1B workers representing an average 20 percent of the local technical work force (those 500,000 H-1Bs against a 2.5 million body labor pool) would push down local wages. There’s plenty of anecdotal evidence that it does, too, but most of the more rigorous academic studies don’t show this because there is no easily available data.
What data is available comes from the initial employer applications for H-1B slots These Labor Condition Applications, called LCAs, include employer estimates of prevailing wages. Because there are always more H-1B applications than there are H-1B visas granted, every employer seeking an H-1B may file 3-5 LCAs per slot, each of which can use a different prevailing wage. But when the visa application is approved, it is my understanding that sponsoring companies can choose which LCA they really mean and apply that prevailing wage number to the hire.
Because the visa has already been granted of course they’ll tend to take the lowest prevailing wage number, because that’s the number against which they match the local labor market.
Remember that part of this business of getting H-1Bs is there must not be a US citizen with comparable skills available at the local prevailing wage. If we consider that exercise using the data from Charlotte, above, a company would probably be seeking a programmer expecting $73,965 or above (after all, they are trying to attract talent, right?) but offering $50,170 or below (the multiple LCA trick). No wonder they can’t get a qualified citizen to take the job.
Based solely on approved LCAs, 51 percent of recently granted H-1B visas were in the 25th percentile for pay or below. That’s statistically impossible under the intent of the program.
We have no clear way of knowing what companies actually pay their H-1Bs beyond the LCAs, because that information isn’t typically gathered, but remember that whatever level it is won’t include benefits that can add another 30-40 percent to a US citizen’s wage.
Like other victims of H-1B visa abuse, Jacqueline Aguirre was forced to work for a low wage to avoid deportation. She was not able to find work elsewhere as her immigration status was tied to her employer. The hope is that her backpay victory, though rare, may spark interest enough in this issue to deter future abuses.
“I am so happy,” she told reporters following the decision, “This is proof that victories can be achieved if we fight for it.”