The U.S. government, at least the part that is fighting H-1B visa fraud, is looking to prove a point about the program: that fraud in H-1B visa program and the number of visa holders in U.S. tech jobs are putting current struggling American technology workers out of work.
Unemployment for the technology industry is up, just as every industry's numbers are up. But are companies going out of their way to replace Americans with H-1B workers? That's what the feds appear to be out to prove.
The company that sparked the debate, according to a Computerworld article, is New Jersey-based Vision Systems Group, which is accused of paying wages for H-1B visa holders working in New Jersey based on Iowa rates (since the company had an office there). Salaries for technology workers in those two states are very different, and so fraud has been charged and criminal arrests have taken place. The government also claims Vision only hired H-1B holders for IT positions.
Vision Systems isn't the only case of alleged fraud and abuse. Now, the feds are trying to broaden their argument by looking at IT unemployment as a whole and connecting the dots to the H-1B visa program.
From the Computerworld article:
"The U.S. said it is "prepared to demonstrate to the court the manner in which the defendant's schemes, along with similar schemes by similar companies have substantially deprived U.S. citizens of employment." The government then points out that "in January of 2009, the total number of workers employed in the information technology occupation under the H-1B program substantially exceeded the 241,000 unemployed U.S. citizen workers within the same occupation.""
The problem is that while there appears to be a strong case for fraud and abuse relating to the visa program, it is harder to substantiate the full impact on American workers and all the layoffs and unemployment occurring. The two are not dependent on each other. Layoffs would be happening regardless of whether there was an H-1B visa program or not.
As the Computerworld article points out, the "U.S. government's brief doesn't explain to what extent fraud is responsible for tech worker unemployment, or cite sources for its data."
That's an issue the courts will undoubtedly need to examine more closely.