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February 2009
Newsletter February 20, 2009 DEAR CLIENTS AND FRIENDS: I wish through this brief Newsletter to inform you of the immigration-related provisions that appear in the American Recovery and Reinvestment Act of 2009, or as it is more commonly known, the Economic Stimulus Bill. As you know, this initiative represents the U.S. government’s financial stimulus program to jump-start the U.S. economy largely through substantial infusions of federal funds into infrastructure development. Specifically, the main foci of this Act are on various federal tax cuts, an expansion of unemployment benefits and other social welfare provisions, and enhanced domestic spending in such areas as education, healthcare, and capital improvements, including the energy sector. We are obviously living through challenging and in many ways unprecedented times, and the ultimate efficacy of this initiative both to U.S. domestic interests and well as to the global economy – and even the international political framework – will probably not be known for years to come. Two immigration-related proposals emerged in the course of the Congressional debate – one of which was passed and the other of which was defeated. First, Rep. Ken Calvert (R-CA) and Rep. Jack Kingston (R-GA) had proposed that any company receiving stimulus money would be required to use the E-Verify system. E-Verify is an electronically-based system through which companies can access U.S. government databases (specifically, those maintained by the Social Security Administration and the Department of Homeland Security) to confirm the employment and immigration eligibility of new-hires and individuals working directly on U.S. government contracts. Under the federal legislation, the E-Verify system is at present voluntary, although a few states have made it to varying extents mandatory. Aside from constituting an additional burden in the hiring process, a major concern is that there is an unacceptably high error rate in the database information so as to potentially lead to erroneous determinations of employment ineligibility. This proposal was defeated, largely owing to the uncertainty of compelling companies to use an imperfect verification system that would in many instances inject an additional, unnecessary measure of uncertainty into the hiring process and instability in the labor market. What was passed and signed into law was a proposal that creates some major disincentives to H-1B sponsorship by any company that receives funding under the Troubled Assets Relief Program (TARP). Normally, a company seeking to hire a H-1B foreign national needs to show its intention to hire a foreign national under acceptable and competitive wage and working conditions, and no recruitment efforts need to be undertaken. But for the next two-year period of time running through February 17, 2011, a TARP recipient company would need to make a good-faith recruitment and advertising effort to hire a U.S. worker and to make certain, special attestations that its employment of an H-1B foreign national will not displace or lay-off a U.S. worker “in an equivalent job” either within its own workforce or another company with which it contracts (i.e., the job shop situation). This is a complex, time-consuming process that in essence will eliminate that ability of affected companies to sponsor foreign professionals for H-1B coverage. There are five (5) points worth noting in this regard: 1. This restrictive
prohibition applies only to the employment of foreign nationals
in H-1B status, and does not extend to the
employment of foreign nationals in any other temporary, nonimmigrant
visa classification;
As always, please feel free to distribute this Newsletter to other interested recipients and by all means, please bring any questions or comments to our attention. It is always a pleasure to hear from those whom we serve. Cordially, ROBERT D. ARONSON This memorandum is one of a series of communications prepared as a general public service to our clients and friends. The information herein presented is not intended nor should it be utilized as legal advice on any specific situation. Furthermore, given the rapid pace of change, the veracity of this information is constantly subject to modification and/or reversal. Rather, this piece represents a good faith attempt to orient clients and other interested parties served byAronson& Associates to current immigration developments. This piece in no manner supercedes the need to seek competent legal advice when engaged in activities carrying possible immigration-related consequences. |
Aronson & Associates,
P.A. |