Employment Discrimination Based on Immigration Status: Recent Cases Involving H-1B Visas

The worldwide economic downturn has seen a reversal in previous trends toward offshore staffing and an increase in protectionism toward home country labor. However, employers in the U.S. face potential legal liability if they favor American citizens over authorized foreign guest workers in layoffs, pay decisions, and other such actions. Thus far, employers have succeeded in defending most discrimination claims involving citizenship or immigration status—which often are made by out-of-work plaintiffs unable to afford legal representation—on technical grounds such as faulty pleading, failure to exhaust administrative remedies, filing with the wrong administrative agency, or mischaracterizing immigration claims as ones involving national origin status. These results notwithstanding, a closer reading of the cases suggests that substantive liability may be a matter of growing concern as plaintiffs or their counsel learn to correct such errors. The issues are important to both sides of the employment relationship in today’s global labor market; foreign guest workers will want to better understand their responsibilities and rights, while businesses will want to better manage their legal risks. Because little if any scholarly research has addressed these matters, an exploratory case law review is presented in an effort to identify trends in fact patterns that have generated such issues. Based on the results, practical recommendations are offered for improving the management of U.S. employment relationships that involve foreign guest workers.