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    Tech Visa Lawsuit Raises Questions About New Jersey Politicians
    By Jeff Nachtigal
    WashTech News


    A five-year wait for two software programmers who were granted federal class-action status in their lawsuit against a software company with ties to a U.S. Senator may be nearing a close.

    Sona Shah and Kai Barrett allege that Wilco Systems, Inc., a financial services company based in New York, discriminated against its employees based on their citizenship and immigration status.

    Shah and Barrett say they filed the lawsuit on behalf of U.S. workers who are discriminated against in favor of foreign workers, and on behalf of foreign H-1B visa workers who are paid less than the prevailing wage for U.S. workers with similar qualifications.

    Shah is a U.S. citizen. Barrett is British citizen who was transferred from Wilco's London office to work in New York in 1996 on an H-1B visa.

    The case also casts a shadow over four-term U.S. Senator Frank L. Lautenberg (D-NJ), founder and former board member of Advanced Data Processing, Inc., the parent company of Wilco. In 2002 ADP, Inc. reported over $7 billion in revenue.

    Sen. Lautenberg's alleged inaction on H-1B and L-1 visa issues, combined with the steady outsourcing of jobs to foreign countries from his state, have frustrated New Jersey IT workers, who have seen their state gutted by the outsourcing of high-tech jobs over the past five years.

    "I think it's one of the worst cases of visa abuse that I've ever seen by any single company," says Mike Gildea, executive director of the Department of Professional Services for the AFL-CIO.

    Gildea accompanied Shah and Barrett in October when they visited nine legislators' offices in Washington D.C. to explain their cases against Wilco and ask for support.

    "Wilco benched U.S. workers in favor of H-1B and L-1 visa workers, and then fired them, and now it outsources most of the stuff they do," Gildea said.

    "This is a poster child for what's wrong with guest worker programs."

    Certified in federal court with class-action status, Shah vs. Wilco is pending in New York Supreme Court under the New York City Human Rights Law.

    The case is unique because it pairs a U.S. worker and an H-1B visa worker, two groups that have traditionally stood on opposite sides of the workplace battle between domestic high-tech workers and corporations that recruit non-immigrant H-1B and L-1 visa workers to save on labor costs.

    "As soon as you allow one group to be treated in a particular way that marginalizes them," Barrett said, "it opens the door for everyone to be marginalized."

    Barrett, 29, earned a master's degree in information technology from the University of London and worked as a systems analyst for Wilco. He claims he was paid half the going wage because he was in the United States on an H-1B visa and had no leverage to demand a fair salary – similar to dozens of other H-1B visa holders working for Wilco.

    The visa culture treated workers like "a piece on a shuffleboard," Barrett said. "They would move you around as they saw fit. You weren't judged on merit, but on visa status."

    Shah, now 32, began working as a programmer at Wilco in 1996. She was sickened when the company used the phrase "Project Delhi Belly" to describe its plan to recruit Indian software programmers.

    The racially tinged insult – a derogatory term used by British officers to describe their diarrhea during their occupation of India – was one example of the repressive treatment that Wilco employees, most of whom were Indian, had to endure, Shah said.

    She said 30 to 40 U.S. workers were kept on staff as "window dressing" so Wilco would look as if it were complying with visa rules and hiring U.S. citizens. As an "H-1B dependent" company under federal visa regulations, no more than 15 percent of Wilco's employees could be H-1B visa workers.

    But Wilco employed as many as 400 programmers, many of them non-immigrant visa holders, Barrett said.

    While foreign programmers worked for substandard wages, U.S. workers sat around until they quit, or Wilco found minor infractions to justify firing them, Shah said.

    When Shah was fired in 1998, it was the third time that Wilco replaced her on a project with an H-1B visa worker. She was told she was fired because she encouraged other employees to leave by speaking out, but she believes the real reason was that the non-immigrant labor was cheaper, more submissive and easier to control, and more willing to work unpaid overtime than U.S. workers like herself.

    "We can't fully describe the atmosphere of fear, corruption and resentment that existed at this company," Shah said.

    When contacted in the New York branch office, an ADP/Wilco public relations employee declined to comment about the Sona vs. Wilco case other than to say, "It's got to that stage, hasn't it?"

    John Amman, a business representative for Local 600 of the International Alliance of Theatrical and Stage Employees (IATSE) out of New York, is familiar with the Shah case and thinks that if nothing else, the case will put a spotlight on corporations that have abused the current guest worker visa laws.

    Amman authored an article proposing that high-tech workers may be able to organize in a similar fashion to that of the motion picture unions, which have portable benefits, training, networking and job search help. The article, "Unions and the New Economy: Motion Picture and Television Unions Offer a Model for New Media Professionals," appeared in the in Fall 2002 issue of Working USA magazine.

    Referring to corporations that lobby for higher H-1B visa allotments, Amman said: "They've created the entire paradigm – creating the argument why they have to pay lower wages, which they have themselves created."

    Politics and Guest Worker Visas

    New Jersey Senator Frank L. Lautenberg represents a state in which high-tech workers have been particularly hard-hit by work visa abuses and outsourcing.

    Dozens of major companies that are actively outsourcing jobs have operations in New Jersey – including Amazon, AOL, Avis, AT&T, Chevron, Dell, Microsoft, Proctor and Gamble, Transworld, Verizon and Whirlpool.

    New Jersey CWA Political Director Don Rice described Sen. Lautenberg's labor record as "sterling."

    But Sen. Lautenberg's efforts to stem work visa abuse and outsourcing of IT jobs have been lackluster at best, according to New Jersey Programmers Guild members.

    Sen. Lautenberg's past connections to Wilco also raise the question about his support of IT jobs in New Jersey.

    Sen. Lautenberg's involvement in ADP, Inc. since being elected to his fourth senate term in 2002, and his financial stake in the company when Shah and Barrett initiated their cases against Wilco are not entirely clear.

    Sen. Lautenberg was an Honorary Director for ADP in 2001 and 2002, according to the company's Annual Reports – the same time Shah vs. Wilco was being litigated.

    When asked for comment about the Shah vs. Wilco case and visa worker abuse in New Jersey, a press secretary for the senator would only say that he had "severed all ties with ADP."

    Shah contacted Sen. Lautenberg's office six times to request a meeting with the Senator to plead her case. She had one conversation with an aide who listened to her story. Another aide suggested she should apply for a job at Barnes & Noble while she looked for a job.

    New Jersey programmer John DeMartinis attended a meeting in April with staff members of Sen. Lautenberg to raise concerns about declining IT jobs in New Jersey. He came away pleased with the office's response and expected something to happen. But, seven months later, DeMartinis says he is still waiting.

    "He hasn't done anything to save jobs and he hasn't done anything to hurt them," said DeMartinis, a member of the New Jersey Programmer's Guild. "He's more on the fence. I don't know why he's not stepping up."

    Programmers Guild Officer Sab Maglione thinks the Shah vs. Wilco case is a good first step towards raising the awareness of H-1B and L-1 visa abuse.

    After attending the April meeting at Sen. Lautenberg's office, he has his doubts about the senator's willingness to take actual steps toward real change in laws to support IT workers.

    "Every time we take a half step forward, they turn around and kick you in the teeth 10 steps back. The companies [that advocate for increased numbers for guest worker visas] have the manpower to turn around and make us look bad – first it was about labor shortages, now it's about efficiencies and globalism," Maglione said.

    Boris Galinsky also attended the meeting at Sen. Lautenberg's office.

    "In the end we didn't get anything -- a form letter, but nothing specific," said Galinksy, who is also a Programmers Guild member.

    In early January 2004 the group is scheduled for a face-to-face meeting with Sen. Lautenberg. Shah and Barrett, along with DeMartinis and several Programmer's Guild members will be in attendance to ask the senator, again, what he will do to help the IT workers in New Jersey.


    A System Ripe for Abuse

    John Miano, one of the founding members of the Programmers Guild, remembers when Sealand and AIG fired large numbers of U.S workers and replaced them with H-1B workers in 1994 – what he calls the beginning of large-scale H-1B abuse in New Jersey.

    "The problem is that the law isn't set up to handle H-1B violations – they were designed to be abused, so companies can abuse and it and be perfectly legal," said Miano, now a law student at Seton Hall University. "So a court case alleging discrimination violations comes down to indirectly showing that the company violated other laws."

    With H-1B visas coming under closer scrutiny, an emerging issue is that many companies are shifting to using L-1 visas.

    Gildea of the AFL-CIO's Department for Professional Employees says that with the H-1B cap lowered to 65,000 earlier this year, some companies are now using L-1 visas – which are intended to allow companies to transfer managers from foreign branches or subsidiary offices to the United States – to bring in large numbers of workers.

    In September Congress allowed the annual limit on new H-1B visas to drop from 195,000 to 65,000 per year.

    But the number of L-1 temporary visas granted has also risen steadily. L-1 visas allow workers to stay in the U.S. for up to seven years, longer than H-1B visas allow. L-1 visas rose nearly 40 percent to 57,700 in 2002 from 41,739 in 1999, according to The New York Times.

    "One after another, there is no overall congressional assessment of all these visa programs," Gildea said. "It's very severe for tech workers, it's bad enough to have to compete against each other, but then you throw in foreign workers who are being paid less than them."

    Gildea pointed out the group of Connecticut IT workers called The Organization for the Rights of American Workers that pressured Connecticut Representative Nancy Johnson (HR 2849) and Senator Christopher Dodd (S 1452) to introduce the USA Jobs Protection Act bill to put tighter restrictions on H-1B and L-1 visas.

    "They're self-started, angry tech workers, and they're the reason we got the DeLauro L-1 bill put in. That's the way you build critical mass in these fights," said Gildea, referring to Congresswoman Rosa DeLauro (D, CT), whose bill (HR 2702) limits L-1 visas.

    "People raising hell gets things done."

    Corporations have been telling politicians and Americans that the jobs shipped overseas are low-end remedial jobs that U.S. citizens don't want, and that higher paying jobs will increase, CWA Political Director Rice said.

    "But there's no evidence of that happening, and more and more people are flipping burgers," Rice said.
     

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