February 11, 2009

The Senate Stimulus Package & U.S. Immigration Policy

On February 10th, the U.S. Senate passed its version of the stimulus plan that did not leave immigration and employment untouched. The Senate’s version of the Stimulus Bill contains a provision that automatically classifies employers receiving TARP funding and who utilize the H-1B visa program as “dependent” employers. While the provision sunsets two years after the enactment of the act, the damage such requirements are likely to cause will be far more lasting.

The H-1B provisions of the Stimulus Bill are found at Sec. 1610 and it states:

Sec. 1610. 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.

Unlike all other employers using the H-1B visa program, employers classified as “H-1B dependent”, are subject to the additional and extremely onerous attestations and liabilities which include the following:

1.  Displacement attestations - no U.S. workers have been or will be displaced as a result of the H-1B employee.
2. Recruitment attestations - provide documentation verifying that the employer has taken good faith steps to recruit U.S. workers and has offered the job to any U.S. worker who is qualified.
3. Continued liability for displacement of U.S. workers when an H-1B employee is placed at the worksite of a third party.

The language adding these restrictions to the use of the H-1B visa program are likely to remain in the final package given the political and public support behind the provisions. GT will continue to provide updates on these and other provisions.