As previously reported, the American Recovery and Reinvestment Act of 2009 restricts companies that receive TARP funds (under the Emergency Economic Stabilization Act of 2008) or have received funding under Section 13 of the Federal Reserve Act (authorizing a discount window for short term secured loans to financial institutions) from hiring H-1B workers unless they can meet the standards of H-1B dependant employers. By contrast, companies receiving stimulus monies under the recently enacted Employ American Workers Act (enacted as  part of the American Recovery and Investment Act of 2009) are not subject to these restrictions. For subject employers, they are required, prior to filing a petition for H-1B employment,  to take good faith steps to recruit U.S. workers for the position for which the H-1B is sought. As part of the Labor Condition Application the covered employer must attest that it has endeavored to offer the H-1B position to an equally qualified or better qualified U.S. worker. The covered employer must also attest that it has not laid off and will not lay off a U.S. worker in a job that is essentially equivalent to the H-1B position in the area of H-1B intended employment for a period extending from 90 days prior to the H-1B filing to 90 days following filing.  For interested readers we provide a link to a FAQ posted by the American Immigration Lawyers Association on its website (see below) containing additional information on how the H-1B program has been impacted by the recent stimulus legislation.   

FAQ on Stimulus Bill As it relates to H-1B Program

The following is a verbatim excerpt from the “Round Up Report” posted by the American Immigration Lawyers Association on its website describing each piece of legislation intoduced in the U.S. House of Reprentatives and U.S. Senate last week:  

H.R. 182
Introduced by Rep. Serrano (D-NY) on 1/6/09
Summary: Amends the Immigration and Nationality Act, in the case of an alien subject to removal, deportation, or exclusion who is the parent of a U.S. citizen child, to authorize an immigration judge to decline to order such removal if the judge determines that such action is against the child’s best interests. States that such discretion shall not apply with respect to an alien whom the judge determines: (1) is excludable or deportable on security grounds; or (2) has engaged in sex trafficking or severe forms of trafficking in persons.

The Loophole Elimination and Verification Enforcement (LEAVE) Act (H.R. 994)
Introduced by Rep. Miller (R-CA) on 2/11/09
Summary: This bill aims to remove the incentives and loopholes that encourage illegal aliens to come to the United States to live and work, provide additional resources to local law enforcement and Federal border and immigration officers, and for other purposes.

English Language Unity Act of 2009 (H.R. 997)
Introduced by Rep King (R-IA) on 2/11/09
Summary: To declare English as the official language of the United States, to establish a uniform English language rule for naturalization, and to avoid misconstructions of the English language texts of the laws of the United States, pursuant to Congress’ powers to provide for the general welfare of the United States and to establish a uniform rule of naturalization under article I, section 8, of the Constitution.

Nursing Relief Act of 2009 (H.R. 1001)
Introduced by Rep. Shadegg (R-AZ) on 2/11/09
Summary: To create a new nonimmigrant visa category for registered nurses, and for other purposes.

Uniting American Families Act of 2009 (H.R. 1024/S.424)
Introduced by Rep. Nadler (D-NY) and Sen. Leahy (D-VT) on 2/12/09
Summary: A bill to amend the Immigration and Nationality Act to eliminate discrimination in the immigration laws by permitting permanent partners of United States citizens and lawful permanent residents to obtain lawful permanent resident status in the same manner as spouses of citizens and lawful permanent residents and to penalize immigration fraud in connection with permanent partnerships.

Electronic Employment Eligibility Verification and Illegal Immigration Control Act (H.R. 1096)
Introduced by Rep. Marshall (D-GA) on 2/13/09
Summary: A bill to create an electronic employment eligibility verification system to ensure that all workers in the United States are legally able to work, and for other purposes.

Note: Each week hundreds of bills are introduced into the House and Senate, and the likelihood of any particular bill moving is usually very small. The bills posted on this page represent all immigration-related legislation introduced this week, not legislation AILA believes is important or likely to succeed.

Stay tuned to AILA’s News from the Hill page for updates on pressing legislative activity.

C-G Immigration sets forth below the most recent statement from the Immigration Policy Center of the American Immigration Law Foundation concerning the concluding legislative conference on the Stimulus package: 

Statement from the Immigration Policy Center
 

An Immigration Two-Step:
House-Senate Conferees on Stimulus Bill Reject Expansion of E-Verify
But Limit Foreign Professionals on H-1Bs  
¼br> E-Verify
It appears that the conferees have wisely resisted rapid-fire expansion of the E-Verify program.  As a new fact sheet from the IPC explains, those who claim that E-Verify is the solution ignore the fact that the program does not effectively root out undocumented workers, harms American workers who will be ensnared by database errors, and forces American businesses to bear additional costs associated with the program. The U.S. Chamber of Commerce concluded that a federal rule that would have similarly expanded E-Verify would result in net societal costs of $10 billion a year.  Small businesses - which employ approximately 50% of the U.S. workforce - would be disproportionately affected. At a time when the U.S. economy is sinking deeper into recession and the ranks of the unemployed are growing with every passing day, expanding E-Verify before improving it would have been a costly and chaotic mistake.
 H1-B
Another immigration-related issue in the stimulus debate revolved around the H-1B program.  It appears that anyone receiving TARP money will be hard pressed to hire  foreign nationals for at least a two-year period. We can all agree on the importance of protecting American workers. Our immigration system can and should be an asset in that effort. However, protectionist-oriented policies will thwart progress and innovation in the U.S. and will hurt American workers in the long run. New York Times op-ed columnist Thomas L. Friedman opined on this action and its impact on the economy: “Protectionism did not cause the Great Depression, but it sure helped to make it ‘Great’.” As he notes, “in an age when attracting the first-round intellectual draft choices from around the world is the most important competitive advantage a knowledge economy can have, why would we add barriers against such brainpower - anywhere?”  Additionally, a recent study on the topic by researchers at the Harvard Business School and the University of Michigan concludes that the H-1B program plays “an important role in U.S. innovation” because of its role in bringing foreign-born scientists and engineers to the United States.  The House-Senate conferees may have been aiming to protect U.S. workers, but by limiting access to global brain power they may be squelching just the sort of stimulus America needs. 

Comprehensive Immigration Reform¼br> Immigration has become the perennial pothole into which some in Congress drive each and every legislative debate. We urgently need a comprehensive and workable solution to resolve our immigration problems. Until then, this issue will continue to thwart the progress and promise America’s future.
 ¼/p>

In a post on its website today, the American Immigration Lawyer’s Association (”AILA”)called attention to a Senate Amendment to the Stimulus Bill, which would, in effect, prohibit companies that accept TARP funds from hiring skilled foreign nationals (H-1Bs) for 1 year. The amendment would also prohibit companies that receive TARP funds from extending the visas of H-1Bs already in their employ. One does not have to waste energy commenting on such profound stupidity, it is obvious to anyone who owns a business in this nation. For interested readers, the AILA post has been set forth below:

Cite as “AILA InfoNet Doc. No. 09020666 (posted Feb. 6, 2009)”

FOR IMMEDIATE RELEASE:
Friday, February 6, 2009
CONTACT:
George Tzamaras
202-507-7649
gtzamaras@aila.org
WASHINGTON, DC - The American Immigration Lawyers Association (AILA) believes Congress took a disturbing step backwards today - to an era of employment protectionism. Adopting by voice vote an amendment by Senators Sanders (I-VT) and Grassley (R-IA) - who like to frame issues through an “us versus them” lens - the Senate caved to an old reactionary instinct: when times get tough, turn inward, put on the blinders, and hunker down. Unfortunately, we know empirically that this instinct is deeply counterproductive to economic growth and creates a climate of jingoistic divisiveness.

The Sanders-Grassley amendment that was originally filed made no pretense about the objective: it barred TARP fund recipients from hiring foreign workers under the H-1B program for one year. In part, we suspect, because of the ugly optics surrounding such a blatantly protectionist message, the amendment was subsequently dressed up with some qualifiers and legal niceties. But the net effect of the amendment that ultimately passed is the same: the financial institutions who receive funding under the program will be hard pressed to hire any foreign nationals (or extend the visas of currently employed foreign workers) for a 2-year period.

A March 2008 National Foundation for American Policy report (NFAP report) has shown that for every H-1B position requested by an S&P 500 U.S. technology company, overall employment at the company increased by five workers. The report also found that among companies in the study sample experiencing layoffs, for every H-1B position requested, total employment was estimated to be two workers more than it otherwise would have been.

Instead of seeing the current economic calamity as a global problem and immigrants as part of the collective solution, the Senate unwisely chose to restrict the financial industry’s access to top-flight global talent who can help create jobs for U.S. workers. In these difficult economic times, we cannot afford knee-jerk, fear driven policies that will stymie growth. Our nation’s capacity to funnel the world’s diverse talent pool into a highly productive economic engine is a central reason that we are the wealthiest nation in history.

AILA calls on Congress to adopt forward-looking policies that embrace our status as the preeminent landing spot for the world’s best and brightest. It is time to turn our back on short-sighted, insular policies, not on the world’s highest achievers who can help lift us from our economic malaise.

###

The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members.

For the benefit of readers interested in legislative developments in the immigration debate we provide below an excerpt from an on-line publication called the “Pulse”, which tracks legislative developments for the American Immigration Lawyers’ Association, the most significant association of immigration attorneys in the U.S.:

Director’s Corner

Inside Politics

Wow. It sure didn’t take long for immigration to explode on to the scene in the 111th Congress. No, not the comprehensive legislation the nation needs, but more small ball efforts by immigration restrictionists to make E-Verify mandatory and to deny legal permanent resident children and pregnant women access to health care.

Representatives Kingston (R-GA) and Calvert (R-CA) successfully added E-Verify amendments to the economic stimulus bill during a House Appropriations Committee markup last week. A House vote on the bill is expected tomorrow. The Calvert amendment is similar to an E-Verify reauthorization bill that passed the House overwhelmingly last year. The Kingston amendment is more pernicious, mandating that all entities receiving stimulus funding or benefits be enrolled in E-Verify. In other words, it is potentially far broader than the FAR regulation – currently in litigation - mandating federal contractor usage of E-Verify.

The Senate marked up related stimulus legislation today in the Finance and Appropriations Committees. While we appear to have succeeded in preventing similar E-Verify amendments from being added during committee consideration (score one for the good guys!), we expect E-Verify amendments to be filed when the full Senate takes up the bill next week.

Meanwhile, the Senate began Floor debate today on SCHIP, the State Children’s Health Insurance Program. Some Senate Republicans have targeted the ICHIA provisions in the bill for attack. ICHIA, the Immigrant Children’s Health Improvement Act, repeals the 5-year bar on receiving medical benefits for legal permanent resident children and pregnant women. The measure was adopted during Committee markup by a 12-7 bi-partisan vote. (The House passed SCHIP with the ICHIA provisions by a 289-139 margin.) A number of amendments seeking to strike or limit the reach of ICHIA are expected to be voted on as debate continues over the next two days.

While unfortunate, the current fire drill is instructive. Although anti-immigrant posturing has failed continuously in voting booths and in the court of public opinion, restrictionists in Congress haven’t changed their playbook. Their small-minded efforts to leverage fear and division for political gain will require our committed vigilance. As we rally to build momentum for CIR in the Fall, we must be on guard and at-the-ready to put out many small fires that may ignite along the way.

Tune in next week. Same Pulse time, same Pulse channel.

Marshall Fitz
Director, AILA Advocacy
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This Week in Congress

Economic Stimulus and SCHIP Dominate Congressional Debate; Some Immigration Amendments Likely

Representatives Kingston (R-GA) and Calvert (R-CA) successfully added E-Verify amendments to the economic stimulus bill during a House Appropriations Committee markup last week. A House vote on the bill is expected tomorrow.

The Senate marked up related stimulus legislation today in the Finance and Appropriations Committees. While we appear to have succeeded in preventing similar E-Verify amendments from being added during committee consideration, we expect E-Verify amendments to be filed when the full Senate takes up the bill next week.

The Senate began Floor debate today on SCHIP. Some Senate Republicans have targeted the ICHIA provisions in the bill for attack. ICHIA repeals the 5-year bar on receiving medical benefits for legal permanent resident children and pregnant women. The measure was adopted during Committee markup by a 12-7 bi-partisan vote. A number of amendments seeking to strike or limit the reach of ICHIA are expected to be voted on as debate continues over the next two days.

View the US House’s 2009 Schedule.

View the US Senate’s 2009 Schedule.