March 2009 Immigration Update - Part I

Economic Stimulus Bill Includes H-1B Restrictions for TARP Recipients, Strips E-Verify Provisions...

Economic Stimulus Bill Includes H-1B Restrictions for TARP Recipients, Strips E-Verify Provisions; Fails To Extend EB-5 Regional Center Pilot
Section 1611 of the American Recovery and Reinvestment Act of 2009 (the "Stimulus Bill") includes H-1B restrictions for recipients of TARP (Troubled Assets Relief Program) funds. It specifies that, effective during the two-year period beginning on the date of enactment, February 17, 2009, any recipient of TARP funding (under title I of the Emergency Economic Stabilization Act of 2008 or section 13 of the Federal Reserve Act) is generally prohibited from hiring any H-1B nonimmigrant unless the recipient is in compliance with the requirements for an H-1B dependent employer.
An H-1B dependent employer has to comply with the following attestations:
• 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 to 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.
Although the H-1B dependent employer rule provides exemption from these attestations, if an H-1B worker either possesses a master's degree or who receives wages of $60,000, the new legislation does not allow recipients of TARP funding to claim these exemptions.
Only employers that receive funding under title I of the Emergency Economic Stabilization Act of 2008 (Public Law 110-343, also known as the "TARP Bill") or that received 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) are subject to these restrictions.  Companies that will receive funds under the recently enacted stimulus bill, American Recovery and Reinvestment Act of 2009, are not subject to these H-1B restrictions.
The term "hire" is defined in the statute as permitting "a new employee to commence a period of employment."  Therefore, the restriction should not apply to H-1B extension requests  filed on behalf of current H-1B employees of covered employers.  It also should not cover existing current employees who are in another status such as F, TN, L-1A and are seeking to change status to H-1B.  However, the new legislation will likely cover new employees seeking to transfer in H-1B status from another employer to a covered employer.  Note that neither USCIS nor DOL have implemented any regulations or guidance as yet.
The legislation deletes the E-Verify provisions that had been in the House of Representatives version. The final legislation also fails to extend the EB-5 regional center pilot program.
CBP Discusses Immigrant Intent for Trade NAFTA Applicants
A recently released letter sent on April 21, 2008, from Paul M. Morris, Executive Director, Admissibility and Passenger Programs, U.S. Customs and Border Protection (CBP), to Micron Technology, Inc., discusses immigrant intent for Trade NAFTA (TN) applicants whose spouses are the beneficiary of an I-140 petition. Morris states that CBP's determination is that "the mere filing or approval of an immigrant petition does not automatically constitute intent on the part of the beneficiary to abandon his or her foreign residence. This would hold for a TN principal who may be riding on a spouse's immigrant petition."
The letter notes that a TN applicant could have the intent to immigrate or adjust status at a future time, but as long as his or her intent at the time of filing the application for admission is to be in the U.S. for a temporary period under NAFTA and applicable regulations, he or she could be admitted. However, "once a TN files an application for an immigrant visa or adjustment of status, then the TN would no longer be eligible for admission or an extension of stay as a TN nonimmigrant. The NAFTA professional must establish that the intent of entry is not for permanent residence."
In an earlier letter, sent in 1996 from Yvonne M. LaFleur, Chief, Business and Trade Services Branch, to ABIL Member William Z. Reich, Ms. Fleur states that "[t]he fact that an alien is the beneficiary of an approved I-140 petition may not be, in and of itself, a reason to deny an application for admission, readmission, or extension of stay if the alien's intent is to remain in the United States temporarily. Nevertheless, because the Service must evaluate each application on a case-by-case basis with regard to the alien's intent, this factor may be taken into consideration along with other relevant factors every time that a TN nonimmigrant applies for admission, readmission or a new extension of stay. Therefore...if the inspecting officer determines that the individual has abandoned his or her temporary intent, that individual's application for admission as a TN nonimmigrant may be refused."
The new letter may be helpful in that it reaffirms the policy of allowing TNs, who may stay in the U.S. up to three years, to enter and extend their stay, assuming their intent is to remain only. Application of the law remains inconsistent across various ports of entry.  Many cases come down to proving that the individual is not entering the U.S. with the intent to establish permanent residence upon that entry.
(to be continued)