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Greg Siskind on Immigration Law and Policy

LIGHTER SANDERS H-1B PROVISION INCLUDED IN STIMULUS BILL

Rating: 2 votes, 5.00 average.

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.

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Comments

  1. George Chell's Avatar
    Actually this may benefit the tech companies..they may get a few hundred extra workers.
  2. George Chell's Avatar
    "The employer recruits and hires US workers that are equally or better qualified than the H-1B non-immigrant applicant."

    Does this mean better GPA or is it experience?
  3. sa's Avatar
    Well , I think in general the climate is hostile to H1Bs .. I am on H1B and have an underwater mortgage .. I decided not to make that extra payment that I used to .. I would not be very sad to go back, if I am forced to leave this country. This country gave me enough confidence that I can succeed anywhere . Its hard to live as a gay man in south asia but I guess I belong where I was born...

    I can only imagine what people would have gone thru when they were forced to leave because all of them belong to a certain religion ...
  4. badnaam's Avatar
    with this provision taking place , body shoppers being arrested , freeze in recruitment's , lack of IT projects for indian companies , i wonder if the H1B will even be reached this year
  5. Another voice's Avatar
    Protectionism is not good, but then again this amendment was Sen.Sanders the self described Independent/socialist of the US Senate. Hopefully they do not start going down this road on other things....
  6. sa's Avatar
    "with this provision taking place , body shoppers being arrested , freeze in recruitment's , lack of IT projects for indian companies , i wonder if the H1B will even be reached this year"


    I dont think so but it would be interesting to see which company has audacity to file for maximum number of H1s..
  7. Legal and no longer waiting's Avatar
    sa, I never understood the concept of "belong where I was born". Some do, and some don't. Also, I would not worry too much about people persecuted for religious reasons. Only a small percentage of those who claim it are truly persecuted to a point where they have to fear for their life - majority belong to relatively wealthy religious groups, and use the perceived possibility of persecution to their advantage, thus, getting preferential treatment under the US immigration law. Much more preferential than, for example, gays, who can't use marriage based immigration even if they are legally married to a US citizen (that's a travesty, in my opinion, and I am straight!). I'd say you are definitely getting a rotten deal compared to the majority of refugees, at least the ones I met from my own country. Now Canadian PR is something probably worth looking into for you - not only the immigration system makes more sense, but the country is definitely more gay-friendly. It may be a win-win.
  8. JoeF's Avatar
    "with this provision taking place , body shoppers being arrested , freeze in recruitment's , lack of IT projects for indian companies , i wonder if the H1B will even be reached this year"

    If at all, only after a couple of months.
    And btw, the only body shoppers being arrested are the ones who committed blatant fraud. These are the id**ts who give the H1 a bad name.
  9. George Chell's Avatar
    "I dont think so but it would be interesting to see which company has audacity to file for maximum number of H1s.."

    Which company has audacity to file for maximum number of H1s?

    Answer: (a) Warner Brothers; and (b) Sony. In other words, Hollywood. From what I saw two years ago, about 6,000 visas every year at least including actors, producers, show hosts, etc. After that CNBC, CNN International and Bloomberg for various positions in their different units including anchormen and women. In the end there will be only 25,000 computer programmers on H1Bs max, and these may not be just programmers but engineers as well. I will bet anything all 65,000 visas would be used up well before October. Among the 20,000 requiring Master's degree, it may be a slightly different story. But, there also I bet, that the visas get used up very soon. Banking Corporations will not be hiring many H1Bs if at all. If they need a foreign skill they will just send the job to Singapore or Canada instead of going through all the loops in the Sanders-Grassley amendment.
  10. JoeF's Avatar
    "From what I saw two years ago, about 6,000 visas every year at least including actors, producers, show hosts, etc."

    Are you sure?
    I don't think acting requires a college degree...
    The only exception in the H1 law I know is for fashion models.
    The P or O category are more geared towards entertainers.
  11. Greg Siskind's Avatar
    Fashion models only use about 700 H-1Bs a year and most entertainment visas are in the O and P categories. George - I know you get upset about visas in the entertainment industry, but the numbers are really, really small in comparison to other industries. And O-1 visas are much tougher to procure than H-1B visas.
  12. George Chell's Avatar
    Greg and Joef:

    Thanks for the information. Sorry for not knowing this in advance. I am not upset about entertainers getting visas. I am upset about the antis not making that an issue while they attack consumer programmers from India and China. After all, even with 700 fashion models, there are far fewer jobs in acting and fashion modeling than in computer programming. I learn something every day.
  13. Anonymous's Avatar
    Friends,

    To report any suspicious activity or to make a confidential reporting of immigration or customs violations, please call 1-866-DHS-2-ICE (1-866-347-2423).

    Please make the call. This is the right time to make the call. These days immigrations dept. is raiding companies for illegal activities.

    Remember the 5 firms that ICE raided in regards to H1B visa fraud last week. 11 of them are under arrest and they may serve up to 15 to 20 years of prison time.

    Its not just the employer who is breaking the law, employees are supporting them too. As far as L1 visa interview goes, they know from the forum what questions they are asked and they know what to answer even if it is not the right answer.

    For L1 visa they have to say they are working on a proprietary tool and have specialized skills to get the visa even if they don't have those skills. This is fraud and they need to go to jail.

    Remember the only way to stop these guys is by putting not 11 but atleast 1100 in jail. They can afford to pay as mush fine as required without any issues and still continue the same old unethical practice. It's only the jail time that they are scared off and which will make them stop.

    So guys if you are suspicious of any illegal activities on H1 or L1 please call ICE. You can call from public phone and don't have to reveal your identity.

    Please make the call. For those you already have a job, you may be the next one to get fired.

    Please spread the word and let your friends, family, relatives know about this. Email this content to everybody that you know.

    Please help.


  14. Anonymous's Avatar
    Friends,

    To report any suspicious activity or to make a confidential reporting of immigration or customs violations, please call 1-866-DHS-2-ICE (1-866-347-2423).

    Please make the call. This is the right time to make the call. These days immigrations dept. is raiding companies for illegal activities.

    Remember the 5 firms that ICE raided in regards to H1B visa fraud last week. 11 of them are under arrest and they may serve up to 15 to 20 years of prison time.

    Its not just the employer who is breaking the law, employees are supporting them too. As far as L1 visa interview goes, they know from the forum what questions they are asked and they know what to answer even if it is not the right answer.

    For L1 visa they have to say they are working on a proprietary tool and have specialized skills to get the visa even if they don't have those skills. This is fraud and they need to go to jail.

    Remember the only way to stop these guys is by putting not 11 but atleast 1100 in jail. They can afford to pay as mush fine as required without any issues and still continue the same old unethical practice. It's only the jail time that they are scared off and which will make them stop.

    So guys if you are suspicious of any illegal activities on H1 or L1 please call ICE. You can call from public phone and don't have to reveal your identity.

    Please make the call. For those you already have a job, you may be the next one to get fired.

    Please spread the word and let your friends, family, relatives know about this. Email this content to everybody that you know.

    Please help.


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