Immigration Law

LIGHTER SANDERS H-1B PROVISION INCLUDED IN STIMULUS BILL

By Greg Siskind

Reports in some quarters that the Sanders Amendment was stripped from the stimulus were incorrect and the measure remains in the stimulus bill about to be voted on by both Houses of Congress.

The bar on all hiring of H-1Bs by banks receiving bailout funds was modified in the Senate and now allows the banks to hire H-1B workers but comply with the H-1B dependency rules. The rule will be in effect for two years. As I noted earlier in the week, this bill will only affect a few hundred workers as most of the recipients of TARP funds barely use the program.

Note that the dependency rules will apply regardless of whether the employer has fewer than 15% of employees in H-1B status and regardless of whether the employee makes greater than $60,000, two bases for exemptions in normal dependency situations. We believe, however, that the rule does not apply to extensions.

Banks receiving the funds will need to check the H-1B dependent box on the Labor Condition Application form and make the following attestations:

1. Hiring H-1B workers will not displace US workers in the employer's work force.
2. Hiring H-1B workers will not displace US workers in another employer's work force (secondary displacement).
3. The employer recruits and hires US workers that are equally or better qualified than the H-1B non-immigrant applicant.

The non-displacement rule bars employers from laying off workers in essentially equivalent positions and replacing them with H-1B non-immigrants. The lay off period covered is the 90 days before and ending after the filing date of the H-1B petition. As for what is "essentially equivalent" USCIS will look to job responsibilities, duties, qualifications, experience and area of employment.

To prove it has not violated the non-displacement rules, employer must retain all records relating to the termination of employees during the 180 day period. The regulations list a variety of items that must be retained including the terminated worker's job title and description, experience and qualifications, assignments, documents related to the departure of the employee, documentation relating to job performance, etc.

Dependent employers must also demonstrate that they have attempted to recruit US workers to fill the position that is the subject of the H-1B petition. Recruiting must meet industry-wide standards and offer salaries as high or higher than being offered to the H-1B worker.

Full post as published by Greg Siskind's Blog on February 13, 2009 (boomark / email).