The headlines in the Indian press say that mighty Tata Consultancy Systems (TCS), which is among the five biggest users of H-1B workers in the U.S., faces a $210 million penalty in one lawsuit, and a $125 million loss in another. TCS in the U.S. is largely a labor broker; it plays other roles, major ones, in other countries.
The larger of the two penalties against TCS is because a Texas jury found that it had stolen trade secrets from DXC Technology, and the lesser one because its activities had injured another firm, Epic Systems.
Meanwhile, TCS sought 13,883 H-1B slots in FY 2022, and probably got some 4,600 workers or so in the H-1B lottery. In 2023, TCS sought 8,737 positions, likely netting some 2,900 of them.
Traditionally, the losing firm in these kinds of cases pays the winner millions of dollars, as compensation for the loser’s inappropriate conduct. In this situation all three firms use the H-1B program, although DXC and particularly Epic are much smaller users.
Why not take away a substantial number of slots (say 1,000 of the 2,900 from TCS) and give them to the victimized firms as partial compensation, with the understanding that they could legally sell them to other H-1B-using firms, with the further understanding that the slots could not be re-sold back to TCS.
This would not reduce the number of H-1B positions in the U.S. but it would send a firm message to Tata that it should behave better in the future, and possibly encourage that firm to hire some U.S. citizens.
Such a move would not conflict with the annual ceiling of 85,000 new H-1B workers.
Were this a federal case, in which Tata-like firms would be subject to federal fines, rather than compensation to the other firms, the seized slots would be simply erased and the empty positions would have to be filled by citizen and green card workers.
Someone creative would have to work around the loss-of-slots-and-the ceilings question, perhaps by saying that the H-1B places were used as part of a court ruling and thus they still counted against the 85,000.
My suspicion is that the threat of losing H-1B workers would be more of a threat than the loss of dollars, which might cause these business giants to avoid the practices that got them in court in the first place.
There are some problems, in real life, with this idea. Judges, not knowing much about the role of nonimmigrant workers in the labor market, might not appreciate the idea. Secondly, the pro-corporate Supreme Court might overrule the presiding judge if she or he took the suggested step. Third, someone would need to put a dollar value on the lost positions, and fourth, the winning company in the lawsuit would have to ask for the H-1B positions as partial recompense.
But all we need is one innovative federal judge to start the ball rolling.
