United States: New Proposal Would Limit Nonimmigrant Hiring in the Event of Employer Mass Layoffs
United States: New Proposal Would Limit Nonimmigrant Hiring in the Event of Employer Mass Layoffs
Under a new proposed bill, employers that conduct mass layoffs would be restricted from sponsoring and employing foreign nationals in temporary visa categories.
Senators Bernard Sanders (I-VT) and Charles Grassley (R-IA) have announced that they will introduce a bill to restrict the ability of employers to hire nonimmigrant workers if the employer conducts “mass layoffs” under the Worker Adjustment and Retraining Notification (WARN) Act. The new bill, titled the Employ America Act (EAA), will be introduced in the U.S. Senate soon.
About the Employ America Act
EAA would require employers filing temporary worker petitions to attest that they have not had a “mass layoff” in the 12 months immediately preceding the foreign worker’s proposed hire date and that they do not intend to have a mass layoff in the future. In addition, if an employer does conduct a mass layoff, all existing visas approved in the 12 months before the employer issued a “WARN Notice” would expire 60 days after the notice. Affected foreign nationals would be required to leave the United States within the 60-day period.
An employer would be exempt from the requirements of EAA only if it could show that the total number of its U.S. citizen workers would not be reduced as a result of the mass layoff.
About the WARN Act
The WARN Act generally defines a mass layoff as a reduction in force that will result in employment loss at a single employment site during any 30-day period of (1) at least 500 employees, not including part-time employees; or (2) 50 to 499 employees, excluding part-time employees, if the laid-off employees constitute at least 33% of the employees at the site, also not including part-time employees. For purposes of WARN, an employment loss is (1) an employment termination, other than a discharge for cause, a voluntary departure or retirement; (2) a layoff that exceeds six months; or (3) a reduction in an employee’s work hours of more than 50% in each month of any six-month period. However, certain transfers to other employment sites are not considered to be employment losses. An employer is not required to issue a WARN Notice if a mass layoff is the result of the completion of a particular project or undertaking, if the workers were hired with the understanding that their employment would be of a temporary duration.
Fragomen’s Perspective
The Employ America Act is the latest proposal from Senators Grassley and Sanders, who are the strongest advocates in the Senate for more limits on foreign workers. Their bill restricting H-1B sponsorship by recipients of funds under the Troubled Asset Relief Program (TARP) and certain provisions of the Federal Reserve Act became law earlier this year. Most significantly, this latest proposal would terminate the existing employment authorization and legal status of current employees, and is therefore even more disruptive to employers than restrictions on future temporary worker petitions.
Fortunately, with comprehensive immigration reform on stand-by until at least 2010, EAA is unlikely to move forward soon. Congressional leaders have said generally that immigration legislation should wait until the immigration system can be addressed more broadly. However, the proposal could gain traction and advance as part of some other economy-focused legislation. Fragomen, along with advocacy allies, will work to voice the concerns of the business immigration community about this new proposal.
If you have any questions about the bill or wish to be involved in advocacy efforts, please contact your designated Fragomen professional.
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