US Senator Robert Menendez (D-NJ), along with Senators Kirsten Gillibrand (D-NY), Edward Kennedy (D-MA) and Charles Schumer (D-NY) introduced legislation last week to re-emphasize family unity in the US immigration system. The Reuniting Families Act would help legal immigrants reunite with their families and end decade-long waiting times for legal immigrant visas.

Senator Menendez said: "Family unity is a deeply-rooted American value, and it should continue to be a main ideal by which we draw our newest Americans. Strong, unified families help maintain stable communities and tend to work hard, pay taxes and start businesses that create jobs. We have clear societal and economic reasons to ensure that family reunification is at the core of our legal immigration system. As a nation with a history rooted in immigrants arriving here to reunite with their loved ones, this approach embodies our American values. Our family immigration system is broken - it has not been updated in 20 years and many families wait decades to immigrate legally to this country. This bill will help legal immigrants reunite with their families rather than forcing them to wait for years apart."

Senator Gillibrand said: "As a mother of two young boys, I know that every day away from your family is an eternity. Family is the cornerstone of our society. That's why I am honored to work with Senator Menendez and other colleagues in Congress to reform America's family-based immigration system to reunite loved ones, promote family stability and foster the economic growth that immigrant families have provided throughout our history."

What does the legislation do?

• It helps an estimated 322,000 spouses and children under the age of 21 of lawful permanent residents who are waiting in line to reunite with their families by reclassifying them as immediate relatives
• It addresses the decades-long backlogs for certain countries by raising the per-country immigration limits from 7 percent to 10 percent of total admissions
• It protects widows, widowers and orphans by allowing them to continue to wait in line for a visa after the death of the sponsoring relative.
• It utilizes an estimated 400,000 family-sponsored and employment-based visas that went unused between 1992 and 2007.
• It promotes family unity by allowing more people who are already eligible for an immigrant visa to efficiently use our legal family immigration system.
• It provides equal treatment for stepchildren and biological children by allowing stepchildren under the age of 21 to immigrate upon their parents' marriage (current age limit is 18).

If passed, this will help thousands of people waiting in line for permanent residency.  The million-dollar question is whether this will pass.  We sincerely hope so!

Stay tuned to www.bashyamspiro.com for additional updates.

Having been in the immigration law business for over a decade, our law firm has helped thousands of immigrants successfully immigrate to the United States.  During this time, we have heard many great stories about people's lives and why they wanted to come to this country.  Unfortunately, we have also heard the frustration of going through the complicated immigration process, or the inability of some to go through it at all because of legal bars.  We have listened to many a Human Resources manager whose company wants to hire a foreign worker with special skills but can't due to immigration laws.  We have listened to immigrants who have to wait many years just to bring their spouse to the United States. It's time for change.

In order for America to stay competitive, we must reform our immigration laws to keep up with our global economy.  In addition to providing incentives to keep the best and brightest from other countries in the U.S., we must also have a fair immigration system that strives to keep families together and not apart.  The entire immigration debate over the past number of years has focused on illegal immigration.  From our perspective, this debate has missed an entire demographic of immigrants.

What we need in this country is smart immigration reform, not rhetoric from politicians who pander to one group or another.  The best way to foster change is to make your voices heard.  For this reason, we started the Facebook and LinkedIn group People for Smart Immigration Reform.  On both sites, there is a discussion titled Tell Us Your Immigration Stories.  Please join the group and this discussion.  If you feel comfortable, tell us your immigration story or anything else you feel should be heard in the immigration debate. If you represent a company, tell us your immigration story as well.  Let's use this group to try to convince Congressional Representatives that change alone is sometimes not good, but that it's smart change that we need.

For the group's Facebook page, please click here.

For the group's LinkedIN page, please click here.

U.S. Citizenship and Immigration Services (USCIS) announced additional requirements for employers who receive funds through the Troubled Asset Relief Program (TARP) or under section 13 of the Federal Reserve Act (covered funding) before they may hire a foreign national to work in the H-1B specialty occupation category. 

The new “Employ American Workers Act,” (EAWA), signed into law by President Obama as part of the American Recovery and Reinvestment Act on Feb. 17, 2009, was enacted to ensure that companies receiving covered funding do not displace U.S. workers. Under this legislation any company that has received covered funding and seeks to hire new H-1B workers is considered an “H-1B dependent employer.” All H-1B dependent employers must make additional attestations to the U.S. Department of Labor (DOL) when filing the Labor Condition Application.

EAWA applies to any Labor Condition Application (LCA) and/or H-1B petition filed on or after Feb. 17, 2009, involving any employment by a new employer, including concurrent employment and regardless of whether the beneficiary is already in H-1B status. The EAWA also applies to new hires based on a petition approved before Feb. 17, 2009, if the H-1B employee had not actually commenced employment before that date.

EAWA does not apply to H-1B petitions seeking to change the status of a beneficiary already working for the employer in another work-authorized category. It also does not apply to H-1B petitions seeking an extension of stay for a current employee with the same employer.

USCIS is revising Form I-129, Petition for Nonimmigrant Worker, to include a question asking whether the petitioner has received covered funding. USCIS is encouraging petitioners, whenever possible, to use the most up-to-date form.  However, USCIS will not require use of the revised form in time for the start of the filing period for fiscal year 2010. 

USCIS urges H-1B petitions who have already prepared packages for mailing using the previous Form I-129 (January 2009 version) to complete only the page in the revised version of the Form I-129 (March 2009) which has the new question on EAWA attestation requirements and to file this single page with the prepared package. The single page referenced is the first page on the H-1B Data Collection and Filing Fee Exemption Supplement.

On February 17, 2009, President Obama signed the American Recovery and Reinvestment Act of 2009, otherwise known as the Stimulus Bill.   The final version of the bill includes the Sanders H-1B amendment which severely restricts the ability of financial institutions that received funding under the US Department of Treasury's 700 billion "Troubled Assets Relief Program" (TARP) to hire employees under the H-1B program.   Any such institution is barred from hiring an H-1B employee for two years from the date of enactment of the Act unless the institution can attest that is has been unsuccessful in good faith attempts to recruit US workers and that the H-1B employee has not or will not displace a U.S. worker for a certain period of time.  The American Immigration Lawyers Association noted "The misguided signal [the amendment] sends is that immigrants are part of the problem rather than an integral part of the solution.   The stimulus bill looks helpful but is counterproductive when it restricts the financial industry's access to top-flight global talent who can help create jobs for U.S. workers.  In many ways this decision is at odds with President Obama's call that the stimulus legislation shouldn't be shaped by ideological factors, but by 'what works'."

Thankfully, the Kingston and Calvert E-Verify Amendment, which was also proposed, was removed from the final bill.   This measure involved E-Verify, a program in which employers can use an electronic database to confirm an employee's eligibility to work in the U.S.   The amendment would have made participation in E-Verify mandatory for recipients receiving stimulus funding.  Given the multitude of problems reported with E-Verify and the business costs of participation, this would have posed a greater burden to already overburdened employers.

To view the American Recovery and Reinvestment Act of 2009, click here.

According to the Department of Labor’s Bureau of Labor Statistics, North Carolina’s unemployment rate reached 8.7 percent in December. As our economy continues a period of slow growth, many employers are forced to cut costs to ride out the economic downturn. Unfortunately, just looking at labor statistics shows that many employers are making hard decisions such as reductions in workforce, pay, or hours worked by company employees. It’s certainly a difficult economy, but companies must be careful not to violate immigration laws when making tough decisions. For companies employing foreign workers, layoffs carry with them possible violations of immigration law.

So what potential immigration laws could a company violate under these circumstances?

Labor Condition Application Violations

Under the H-1B and E-3 professional visa programs, employers are required to pay their foreign employees a prevailing wage (or actual wage – whichever is higher) for the position. This prevailing wage is determined by the Department of Labor (DOL). These obligations are covered under the Labor Condition Application (LCA) that is filed by employers with the DOL prior to obtaining professional work status for foreign employees. The LCA governs what the employer must pay and the hours the employee must work under the H-1B and E-3 programs.

Employers should be mindful that reducing pay or work hours of foreign employees could result in a violation of the employer’s obligations under the LCA. Make sure that the salary does not fall below the wage listed in the LCA for the foreign employee. That could lead to DOL penalties. Reducing an employee’s status from full-time to part-time is possible, but an employer must first: 1) make sure that they are paying the higher of the actual or prevailing wage for that part-time position and 2) file an amended H-1B/E-3 application that contains a new LCA evidencing the part-time status of the employee. Furthermore, the DOL does not recognize ‘nonproductive work status’ (also referred to as ‘benching’). Employers will be required to make pro-rata payment of required wages even if a foreign worker is put on nonproductive work status.

What happens if an employer terminates an H-1B or E-3 professional workers? An employer must pay for the reasonable costs of transportation for the H1B employee back to his/her home country. This means the cost of a plane ticket home. The obligation covers the foreign national worker, but not their family. The same legal obligation does not exist for workers holding E-3 status.

Some employers will be considered ‘H1B dependent’ if a certain percentage of their workforce consists of H-1B workers. If an employer is H-1B dependent, it must monitor layoffs within its workforce. After an LCA is certified for a position, an employer must make certain that it has not laid off a U.S. worker from an equivalent position within 90 days preceding and 90 days after the filing of an H-1B petition. Employers must be careful to monitor layoffs of U.S. workers under these conditions.

PERM Labor Certification Violations

The PERM labor certification application is the first step of most employer-sponsored permanent residency applications filed on behalf of foreign employees. The purpose of PERM is to prevent the displacement of qualified U.S. workers for the foreign employee’s position. Layoffs of U.S. workers in positions similar to the foreign worker, if they occur within the six-month period preceding the filing of a PERM labor certification, will impact an employer’s recruitment obligations and their ability to file the labor certification application. In this situation, employers will be required to consider the U.S. workers who have been laid off for the position specified in the labor certification. Therefore, it is important that employers monitor layoffs not only in the context of workers in H-1B or E-3 status, but for workers who are going through the permanent residency process as well.

Is it a tough economy? Yes. Will tough decisions need to be made? Perhaps. But be careful not to violate immigration laws while implementing cost cutting measures.

This article gives a unique perspective on the role immigrants can play in helping America through the economic recession.

Op-Ed Columnist

The Open-Door Bailout

By THOMAS L. FRIEDMAN

Published: February 10, 2009

Bangalore, India

Thomas L. Friedman

Leave it to a brainy Indian to come up with the cheapest and surest way to stimulate our economy: immigration.

“All you need to do is grant visas to two million Indians, Chinese and Koreans,” said Shekhar Gupta, editor of The Indian Express newspaper. “We will buy up all the subprime homes. We will work 18 hours a day to pay for them. We will immediately improve your savings rate — no Indian bank today has more than 2 percent nonperforming loans because not paying your mortgage is considered shameful here. And we will start new companies to create our own jobs and jobs for more Americans.”

While his tongue was slightly in cheek, Gupta and many other Indian business people I spoke to this week were trying to make a point that sometimes non-Americans can make best: “Dear America, please remember how you got to be the wealthiest country in history. It wasn’t through protectionism, or state-owned banks or fearing free trade. No, the formula was very simple: build this really flexible, really open economy, tolerate creative destruction so dead capital is quickly redeployed to better ideas and companies, pour into it the most diverse, smart and energetic immigrants from every corner of the world and then stir and repeat, stir and repeat, stir and repeat, stir and repeat.”

While I think President Obama has been doing his best to keep the worst protectionist impulses in Congress out of his stimulus plan, the U.S. Senate unfortunately voted on Feb. 6 to restrict banks and other financial institutions that receive taxpayer bailout money from hiring high-skilled immigrants on temporary work permits known as H-1B visas.

Bad signal. 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? That’s called “Old Europe.” That’s spelled: S-T-U-P-I-D.

“If you do this, it will be one of the best things for India and one of the worst for Americans, [because] Indians will be forced to innovate at home,” said Subhash B. Dhar, a member of the executive council that runs Infosys, the well-known Indian technology company that sends Indian workers to the U.S. to support a wide range of firms. “We protected our jobs for many years and look where it got us. Do you know that for an Indian company, it is still easier to do business with a company in the U.S. than it is to do business today with another Indian state?”

Each Indian state tries to protect its little economy with its own rules. America should not be trying to copy that. “Your attitude,” said Dhar, should be “ ‘whoever can make us competitive and dominant, let’s bring them in.’ ”

If there is one thing we know for absolute certain, it’s this: Protectionism did not cause the Great Depression, but it sure helped to make it “Great.” From 1929 to 1934, world trade plunged by more than 60 percent — and we were all worse off.

We live in a technological age where every study shows that the more knowledge you have as a worker and the more knowledge workers you have as an economy, the faster your incomes will rise. Therefore, the centerpiece of our stimulus, the core driving principle, should be to stimulate everything that makes us smarter and attracts more smart people to our shores. That is the best way to create good jobs.

According to research by Vivek Wadhwa, a senior research associate at the Labor and Worklife Program at Harvard Law School, more than half of Silicon Valley start-ups were founded by immigrants over the last decade. These immigrant-founded tech companies employed 450,000 workers and had sales of $52 billion in 2005, said Wadhwa in an essay published this week on BusinessWeek.com.

He also cited a recent study by William R. Kerr of Harvard Business School and William F. Lincoln of the University of Michigan that “found that in periods when H-1B visa numbers went down, so did patent applications filed by immigrants [in the U.S.]. And when H-1B visa numbers went up, patent applications followed suit.”

We don’t want to come out of this crisis with just inflation, a mountain of debt and more shovel-ready jobs. We want to — we have to — come out of it with a new Intel, Google, Microsoft and Apple. I would have loved to have seen the stimulus package include a government-funded venture capital bank to help finance all the start-ups that are clearly not starting up today — in the clean-energy space they’re dying like flies — because of a lack of liquidity from traditional lending sources.

Newsweek had an essay this week that began: “Could Silicon Valley become another Detroit?” Well, yes, it could. When the best brains in the world are on sale, you don’t shut them out. You open your doors wider. We need to attack this financial crisis with green cards not just greenbacks, and with start-ups not just bailouts. One Detroit is enough.

A version of this article appeared in print on February 11, 2009, on page A31 of the New York edition.

Computer World Magazine online has an article explaining why President-elect Obama might increase the H-1B cap and immigrant visa numbers, this despite our economic problems.   

Obama has been a proponent of the H-1B visa program.  Although he supports reform of the program, he has also made it clear that he supports an increase of the H-1B visa cap.  Furthermore, the U.S. should want to encourage foreign students and employees to stay, live and work in the United States.  Studies have shown that a vast number of entrepreneurs are immigrants.  If there is one thing that will help the U.S. recover from this economic crisis, it's entrepreneurism and the entrepreneurial spirit.

We will soon find out what Obama's priorities will be when it comes to immigration.  But we at Bashyam Spiro believe that his first two moves should be to: 1) increase the H-1B cap and 2) make it easier for foreign workers and foreign students with advanced U.S. degrees to get permanent resident status.

To read the entire article in Computer World online, please go to THIS LINK.

After a historic election, we now know who will be the 44^th President of the United States - President Elect Barack Obama.  With the election of Senator Obama, the focus now turns to what he will do with the economy, health care reform, and the war in Iraq.  But what will he do about immigration reform?  After years of ‘near misses’ on this issue, will President Elect propose legislation that will end immigrant visa backlogs, provide a path for undocumented aliens to obtain citizenship, and reform a system that needs to keep up with our global economy?

Our prediction is that he will.   

To get an idea of Senator Obama’s position on immigration reform, one only has to listen to what he actually says on the issue.  In response to the U.S. Senate’s failure to move on the DREAM Act, a bill he sponsored, Senator Obama said the following in October 2007. 

“We need comprehensive immigration reform in this country – reform that promotes our national and economic security and creates a pathway to earned citizenship for the 12 million undocumented immigrants in this country. We should not punish undocumented children who were brought to this country illegally through no choice of their own by keeping them in the shadows. The DREAM Act would have given these young people the opportunity to earn a degree or serve in our military, and eventually become legalized citizens. Failing to pass the DREAM Act only compounds the immigration crisis by continuing to drive thousands of young people every year into hiding.” 

“Today is another missed opportunity in the battle to solve the immigration crisis in this country. The immigration debate has been wrought with the politics of division and fear, and been exploited by some politicians, blocking the real reform we need. Today's vote proves that we need to do more to transcend these divisions – especially to provide solutions to help the most vulnerable in our society. I will continue to work with Senators Durbin, Hagel, Lugar and Kennedy on this issue, and will fight to bring this legislation back for another vote as soon as possible.”  

It is clear that immigration reform is essential.  Companies must be able to hire the workers that they need to stay competitive.  A person should not have to wait 6-12 years to obtain permanent residency, and a lawful permanent resident should not have to wait 4-5 years to bring their spouse to the United States. Furthermore, something has to be done to bring illegal aliens ‘out of the shadows’.  Any workable solution must ultimately balance fair immigration reform with immigration enforcement.    

President Elect Obama will have many issues to tackle during his first year as President.  But because immigration is so important to so many people and businesses in the United States, we hope that he makes positive immigration reform one of his top priorities.