News Update - February 14, 2009Employers that lay off workers and/or take TARP funds and their ability to sponsor new H-1B's
It appears that most large organizations which are laying off U.S.
workers may still continue to hire H-1Bs if they are willing to
brook public pressure not to do so. H-1B rules allow non-dependent
employers to keep sponsoring even if they have had layoffs. A dependent
employer is one that has up to 25 full-time employees and at least
8 H-1B's; 26 to 50 employees and at least 13 H-1B's; or over 50
employees and at least 15% H-1B's. Dependent employers must attest
that they will not lay off U.S. workers in the same or essentially
equivalent job for 90 days before or after the date of H-1B filing.
They must also go through the stricter recruitment standard for
dependent employers, which consists of the employer taking steps
to recruit U.S. workers for the positions by using procedures meeting
industry wide standards and offering compensation as great as that
to be offered to the H-1B nonimmigrants. The standard for hiring
U.S. workers is whether the U.S. worker is equally or better qualified.
In the just passed stimulus package, Congress decreed as part of
the bill that organizations which receive TARP (Troubled Asset Relief
Program) funds cannot hire new H-1B personnel unless they comply
with the dependent employer standard. The provision is applicable
to cases in which the pay is higher than $60,000 or the alien has
a master's or equivalent decree. The TARP companies must also attest
to the Department of Labor that they have not and will not displace
a U.S. worker within the 90 day period before or after filing the
H-1B petition. † The author is a 26+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004. ‡ This article © 2009 Alan Lee, Esq.
|
Copyright © 2003-2012 Alan Lee,
Esq. |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |