Florida Employment Law Blog : Florida Employment Lawyer & Attorney : Epstein Becker Green Law Firm : Immigration, Discrimination, Labor, FLSA : Serving Miami, Fort Lauderdale, Florida

On Wednesday, July 8, 2009, the Senate approved several amendments dealing with immigration enforcement and benefits which were not included in the 2010 homeland security appropriations bill (H.R. 2892) passed previously by the House. An amendment introduced by Senator Jeff Sessions (R-Ala) dealing with E-Verify was passed by a voice vote after a motion by Sen. Schumer (D-NY) to table it was rejected 44 to 53. Sen. Sessions’ amendment is extremely important because it could make the voluntary E-Verify program, in its present form, permanent and mandatory for all federal contractors beginning September 8, 2009.

The final federal contractor’s rule, which extends the use of E-Verify to covered federal contractors and subcontractors, including those who receive American Recovery and Reinvestment Act funds, came as a result of Executive Order 12989. The rule was originally scheduled for roll-out last January 15, 2009, but had to be postponed because of a lawsuit filed by the U.S. Chamber of Commerce in the U.S. District Court for the District of Maryland challenging the legality of the rule.

The version of the bill passed previously by the House on June 24^th would extend the E-Verify program for only two years. Thus, the existing differences between the amended version passed by the Senate and the House bill will have to be reconciled and a final version will need to be agreed upon in conference before changes can take effect.

Secretary Napolitano announced early on July 8^th the department’s intention to rescind the controversial No-Match Rule in favor of the “more modern and effective” E-Verify. In a surprising but decisive response, the Senate also adopted an amendment from Senator David Vitter (R-LA) that would prohibit the U.S. Department of Homeland Security (“DHS”) from using any Fiscal Year 2010 appropriated funds to rescind the No-Match Rule.

Sen. Schumer, who led the effort to table Sen. Session’s amendment, stated that declarations made earlier by DHS Secretary Janet Napolitano that the Administration would support a regulation that requires employers to use E-Verify in order to be awarded federal contracts had rendered the amendment “moot.”

However, the real reason for Sen. Schumer’s opposition is that the present administration wants to enact immigration compliance laws that target employers and, Republicans, now the minority in the Senate, want to enact immigration compliance laws targeting employees. But in a surprising move, supported by a few Democrat senators, all amendments dealing with immigration enforcement offered by Republicans were approved.

More concerning for employers, however, is the apparent administration’s pursuance of a more capable and technologically advanced version of E-Verify. Sen. Schumer has stated repeatedly that E-Verify does not “go far enough” and made clear in several occasions that he favors a hi-tech employment verification system which employs biometric identifiers such as fingerprints, eye scans, and more. Similarly, Secretary Napolitano, who believes E-Verify is a “smart, simple and effective tool” has also made clear, in agreement with Sen. Schumer that “we need to continue to work to improve E-Verify, and we will.”

These declaration not only indicate that the Obama administration and key democratic leaders in Congress share the view that immigration compliance should target employers, but also, as it would appear, through the use of an “improved” or, in other words, a more capable and technologically advanced E-Verify that could include not only biometric identifiers, but also information sharing capabilities linked to other governmental agencies. 

The possibility of an “improved” version of E-Verify does not seem far-fetched when considered in light of present existing Memorandums of Understanding between governmental agencies which already allows for information sharing, past joint raids, and an appropriations bill which provides for $5.4 billion to fund DHS’s employment verification activities.

Further, such “improved” E-Verify, despite the potential tremendous governmental invasion into the workings of private institutions, could give the Obama administration a serious “footing” in dealing with millions of illegal immigrants, which can be “politically” cashed at a later time. 

So far it is unclear what immediate effects the Sessions and Vitter amendments would have if enacted. Both the federal contractor and No-Match Rules are currently suspended due to ongoing litigation.

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Recently the American Immigration Lawyers Association (“AILA”), organization of which I am a member, prepared a list of Frequently Asked Questions (“FAQ”) about the H-1B provisions of the American Recovery and Reinvestment Act of 2009 (ARRA or the "Stimulus Bill") and its impact on H-1B employers. For the benefit of our blog’s readership I am including portions of this list, however, some of the FAQs do not have clear answers:

What Provision of the American Recovery and Reinvestment Act of 2009 Affects H-1B Employers?

Section 1611 of the ARRA, called the Employ American Workers Act, was added to the stimulus bill by Senators Sanders (I-Vt.) and Grassley (R-Iowa) to limit certain banks and other financial institutions from hiring H-1B workers unless they had offered positions to equally- or better-qualified US workers, and to prevent banks from hiring H-1B workers in occupations in which they had laid off US workers.

What Companies Are Covered by the EAWA?

The EAWA places new restrictions on H-1B petitions filed by any company that receives funding under title I of the Emergency Economic Stabilization Act of 2008 (Public Law 110-343, also known as the "TARP Bill") or that receives funding under Section 13 of the Federal Reserve Act (12 U.S.C. § 342 et seq., authorizing the Federal Reserve’s “Discount Window” for short-term, secured loans to financial institutions and other companies). Note that companies receiving funds under the AARA (the “stimulus bill”) itself, such as engineering companies that contract with states to build the transportation infrastructure funded by the bill, are NOT subject to any restrictions - only banks and other companies receiving TARP money, or credit directly from the Federal Reserve System, are covered.

How Do I Find Out Whether An Employer Has Received Funds Triggering Application of EAWA?

Recipients of funding under the TARP program are disclosed publicly by the US Treasury, and weekly reports are available on the Emergency Economic Stabilization Act page of the Treasury Department website. Recipients of funding through the Federal Reserve’s Discount Window program are not disclosed to the public, as explained at in the FAQs on the Federal Reserve Discount Window webpage. See question #9. Generally, any state or federally regulated financial institution is eligible for such funding, though under the Federal Reserve’s emergency authority, non-bank companies such as AIG have been allowed to access short term, low-interest loans through the Discount Window.

What Restrictions Are Placed On Covered Employers?

The EAWA provides that it will be unlawful for any recipient of funding to “hire” an H-1B nonimmigrant unless the recipient has complied with the extra Labor Condition Application attestations previously imposed on “H-1B dependent employers.” These extra attestations are:

that the employer has, prior to filing the H-1B petition, taken good-faith steps to recruit U.S. workers for the position for which the H-1B worker is sought, offering a wage that is at least as high as that required under law to be offered to the H-1B worker. The employer must also attest that, in connection with this recruitment, it has offered the job to any U.S. worker who applies and is equally or better qualified for the position.

that the employer has not laid off, and will not lay off, any U.S. worker in a job that is essentially equivalent to the H-1B position in the area of intended employment of the H-1B worker within the period beginning 90 days prior to the filing of the H-1B petition and ending 90 days after its filing.

Are “Exempt” H-1B Employees Covered By The New Restrictions?

All H-1B workers “hired” by a covered employer between February 17, 2009 and February 16, 2011 are covered by the EAWA. Even though the H-1B dependent employer rules provide an exemption from the extra attestations for H-1B workers who possess master’s degrees or who receive wages of at least $60,000, the EAWA makes this exemption unavailable to TARP recipients.

Are H-1B Extensions for Existing H-1B Employees of Covered Employers Subject to the New Restrictions?

The term “hire” is defined in the statute as permitting “a new employee to commence a period of employment.” Therefore, the new restrictions do not appear to apply to H-1B extension petitions filed on behalf of current H-1B employees of covered employers. However, neither USCIS nor DOL have issued implementation guidance or regulations yet, so it is not completely certain that they will take the same view.

Are H-1B Changes of Status for Existing Employees in Other Nonimmigrant Statuses (F-1, TN, L-1B) Subject to the New Restrictions?

As indicated above, the term “hire” is defined in the statute as permitting “a new employee to commence a period of employment.” Therefore, it would appear that the new restrictions do not apply to H-1B petitions filed on behalf of current employees of covered employers, if those employees are currently employed in another nonimmigrant status such as F-1, TN or L-1B. Furthermore, it should be noted that the I-9 Form is completed at the time the employee is hired, not at the time of any change in status. However as previously noted, neither USCIS nor DOL have issued implementation guidance or regulations yet, so it is not completely certain that they will take the same view.

Are H-1B Amendments or Extensions of Stay for New Hires Already in H-1B Status for Another Employer Subject to the New Restrictions?

This issue will need to be resolved by USCIS and DOL in implementing regulations or procedures; however, new employees seeking to transfer their H-1B from another employer to a covered employer will likely be considered to be a “new employee.”

When Does the Law Go into Effect, and How Long Is It Effective?

The Employ American Workers Act became effective upon the stimulus bill's enactment, February 17, 2009. It is important to note that the law will remain effective for only two years after its enactment. Thus, it will sunset on February 16, 2011.

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A provision in the $787 billion stimulus bill that would have required employers receiving federal stimulus money to use E-verify was dropped from the bill. This move is a victory for employers in the construction business receiving assistance from the stimulus bill.

A representative from the American Civil Liberties Union (“ACLU”) recently stated that E-Verify is "flawed" as an employment authorization verification system and that forcing employers to use it would have held Americans "hostage to bad government data and even worse government database systems."

Also eliminated from the final conference report is a provision that extended the E-Verify program beyond March 6, 2009, when it is set to expire. It is expected, however, that E-verify or a similar program could be established permanently by the Comprehensive Immigration Reform (CIR) sometime before the end of this year.
 

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On June 24, 2008, The House Appropriations Committee approved a U.S. Department of Homeland Security funding bill for $39.9 billion.  However, the bill also rejects an amendment to extend the federal electronic employment verification program or E-Verify.

The approved bill carries an increase of $2.2 billion from that of 2008. The amendment submitted by Rep. Ken Calvert (R-Calif.) extending the E-Verify program did not have enough votes at the committee level to pass. Without the extension, E-Verify is scheduled to expire November 30, 2008.

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