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The
Economic Stimulus Package Mandates Strict Regulations for
Hiring H-1B Workers
On Feb. 17, 2009, President Obama signed the American
Recovery and Reinvestment Act, paving the way for $787
billion to revive the tattered U.S. economy. Unfortunately,
the measure as finally approved by Congress, included the
Sanders H-1B amendment which burdens stimulus fund recipient
companies with strict regulations for hiring foreign workers
under the H-1B program.
In short, the Sanders H-1B provision restricts the hiring of
H-1B guest workers at bailed-out banks or any other firms
that receive funds from the stimulus bill or from other
emergency loans made by the Federal Reserve. The provision,
known in the text of the bill as the “Employ American
Workers Act”, would require companies receiving stimulus
funds to comply with hiring rules set for "H-1B dependent"
firms -- those with more than 15 percent of their workers on
H-1B visas. Any company receiving stimulus funds will be
automatically considered H-1B dependent, regardless of the
percentage of H-1B workers on the payroll.
As a result, these companies will be required to hire only
American workers for two years unless the company can prove
they are not replacing laid-off Americans with guest
workers. Many groups have expressed disappointment, arguing
that the provision’s difficult requirements will prevent
affected U.S. companies from hiring the best available
global talent. The text of the provision is as follows:
SEC. 1611. HIRING AMERICAN WORKERS IN COMPANIES RECEIVING
TARP FUNDING. (a) SHORT TITLE.—This section may be cited as
the ‘‘Employ American Workers Act’’. (b) PROHIBITION.— (1)
IN GENERAL.—Notwithstanding any other provision of law, it
shall be unlawful for any recipient of funding under title I
of the Emergency Economic Stabilization Act of 2008 (Public
Law 110–343) or section 13 of the Federal Reserve Act (12
U.S.C. 342 et seq.) to hire any nonimmigrant described in
section 101(a)(15)(h)(i)(b) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(15)(h)(i)(b)) unless the
recipient is in compliance with the requirements for an H–1B
dependent employer (as defined in section
212(n)(3) of such Act (8 U.S.C. 1182(n)(3))), except that
the second sentence of section
212(n)(1)(E)(ii) of such Act shall not apply. (2) DEFINED
TERM.—In this subsection, the
term ‘‘hire’’ means to permit a new employee to commence a
period of employment.
(c) SUNSET PROVISION.—This section shall be effective during
the 2-year period beginning on the date of the enactment of
this Act.
USCIS
Delays New I-9 Rule
On Jan. 30, 2009, the U.S. Citizenship and Immigration
Services (USCIS) announced that the implementation of the
new Form I-9, Employment Eligibility Verification and the
list of identity and employment authorization documents
acceptable for completion of the form. The rule was supposed
to take effect on February 2, 2009, but will be delayed
until April 3, 2009. Employers should continue to use the
June 5, 2007 version of Form I-9 until the USCIS releases
the new form.
The I-9 rule was to allow the Department of Homeland
Security (DHS) more time for consideration over the
specifics of the rule. In addition, this time will allow the
new administration to review the rules and regulations
proposed by the Bush administration. As a part of this
review suggested by the White House to all federal agencies,
the public will be allowed an additional 30 days, until
March 4, 2009, to make any comments on the I-9 rule.
During the hiring process, employers are required to verify
the identity and the employment eligibility of all new
employees by submitting the I-9 form. Employers are required
to prove that all newly-hired employees present
documentation verifying their identity and legal
authorization to accept employment in the United States. The
I-9 form assists in this process and must be filled out by
an employee at the time of hire. The employee must also
present a document, or a combination of documents that
establishes both identity and legal authorization to work in
the United States. Employers need to oversee this process to
ensure it is carried out correctly and in a timely manner.
DOL Updates PERM
Processing Times, Filing Statistics for Early 2009
In January 2009, the U.S. Department of Labor (DOL)
released a report updating current processing times for PERM
applications and offering selected statistics for filings
made in the first quarter of Fiscal Year 2009, which began
on Oct. 1, 2009.
As of late January 2009, DOL is processing cases with
priority filing dates in June 2008, an advance from March
2008 during the prior quarter. Processing of cases in the
audit queue has moved by only one month, from July 2007 to
August 2007, and cases in the appeal queue moved from
December 2006 to April 2007. “Clear DOL error” appeals
remain current.
During the first quarter of FY 2009, between October 1 and
December 1, 2009, a total of 20,752 PERM cases were filed.
During that same period of time, only 4,571 cases have been
processed: 3,074 were certified; 1,328 were denied; and 169
were withdrawn. 53,200 cases remain active as of December
31, 2008. Of the active cases, 67 percent are at the “final
review” stage; 26 percent are in the audit queue; 5 percent
are in the appeal queue, and 2 percent are awaiting
sponsorship verification.
The DOL attributes the Fall 2008 processing slowdown to
litigation over the contract for additional review staff.
The Atlanta Processing Center has only 40 federal employees,
and the new contract staff has only been in place since
September. The DOL noted that while only 4,571 cases were
processed in the first quarter of FY 2009, approximately
3,500 applications were completed in the month of January
2009 alone. However, they warn that the processing rate will
likely level off or slow down even further due to the
limited number of federal employees available to review the
contractors’ work.
March 2009 Visa Bulletin Released
The Department of State (DOS) has recently released the
March 2009 Visa Bulletin. While there has been advancement
in the employment-based second (EB-2) preference workers for
Indian and Chinese nationals, the current priority dates for
those individuals from other countries remains stagnant.
The lack of movement in the Visa Bulletin is due to the high
demand for the limited supply of annual immigrant visas, as
mandated by U.S. immigration law. The March Visa Bulletin
does not provide any insight into the backlog nor does it
offer any predictions for future bulletins. Unfortunately,
we can expect movement to continue to be slow in the coming
months given the prior statement by the DOS regarding the
large number of pending applications for permanent residency
with priority dates earlier than the posted Visa Bulletin
dates.
Employment-Based Visa Bulletin for March 2009
|
Employment-Based |
All Other Countries |
China (mainland born) |
India |
Mexico |
Philippines |
|
1st |
C |
C |
C |
C |
C |
|
2nd |
C |
2/15/2005 |
2/15/2004 |
C |
C |
|
3rd |
5/1/2005 |
10/22/2002 |
10/15/2001 |
8/15/2003 |
5/1/2005 |
|
Other Workers |
3/15/2003 |
10/22/2002 |
10/15/2001 |
3/15/2003 |
3/15/2003 |
|
4th |
C |
C |
C |
C |
C |
|
Certain Religious Workers |
C |
C |
C |
C |
C |
|
5th |
C |
C |
C |
C |
C |
|
Targeted Employment Areas/Regional
Centers |
C |
C |
C |
C |
C |
Re-adjudication of Eligibility of L-1B Cases
on Extension
In the last few months, U.S. Citizenship
and Immigration Services (USCIS) has issued
extensive Requests for Evidence (RFE) for L-1B
extension petitions. The Vermont Service Center, one
of two centers adjudicating L-1 petitions, stated
that it does not routinely re-adjudicate a
previously approved L-1B petition when an extension
is filed unless the initial L-1B approval was
obviously erroneous or new factors are presented to
the adjudicating officer when the extension is being
adjudicated. When an officer encounters an obvious
error committed by USCIS in approving the first L-1B
or if new factors are presented that throw the first
approval into question, the officer must either:
-
Issue an RFE referencing the material error in
the first adjudication or the new material
information forming the basis of the
re-adjudication; or
-
Issue a denial decision referencing the material
error, changed circumstance, or new material
information that is the basis of the
re-adjudication.
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