Category Archives: immigration

Travel Ban Would Impact Many

Though President Trump’s travel ban has been frozen indefinitely, a decision made Thursday by the United States Court of Appeals for the Ninth Circuit, it’s still worth noting how many organizations would be affected should Trump proceed successfully in appealing the decision to the United States Supreme Court. He has vowed to do just this, according to the New York Times report linked above. (More recently, on Friday, he said he is now considering rewriting the immigration executive order in question.)

Whatever we end up with,  a survey of 261 companies by the Seattle-based Institute for Corporate Productivity (i4cp) — conducted just a few days after Trump signed the order restricting entry to the U.S. by travelers from seven majority Muslim countries — reveals more than a third (36 percent) of organizations would be impacted by the travel ban. Another 21 percent were still scrambling to make that determination at the time of the poll.

Within a week of the signing of the executive order, nearly 100 companies — including many of the largest global-tech organizations such as Intel, Microsoft, Apple, Netflix and Uber — responded by joining in the filing of a brief in support of a lawsuit against the travel ban filed by the state of Washington. It was that lawsuit that was at the heart of the Ninth Circuit Court of Appeals decision Thursday.

In its release about the survey, i4cp describes the responses as very mixed:

“While some respondents lauded the executive order for protecting the safety of employees, others drew attention to its potentially negative impact on the recruiting and motivation of a diverse, inclusive global workforce, a clear illustration of the polarization of views and reactions.”

Some respondents reported they are simply unsure of the impact of the travel restrictions because of a “lack of transparency in their global contract workforces, which are managed by vendors,” the release states.

Human resources, however, was the predominant responsible party (at 41 percent) for managing internally anyone affected by the ban, followed by legal, 7 percent; CEO, 6 percent; other senior executive, 5 percent; and security, 1 percent. (Other responses included don’t know, 10 percent, and other, 30 percent.) As i4cp states:

“Often, [HR’s lead] is in conjunction with legal teams responding to the needs of individual employees.”

In a few cases, companies reported having multifunctional “SWAT” teams in place responding to the situation. And nearly a third said they are providing legal assistance to affected employees and their families.

Of course, these were the actions in place when the ban was in place. No doubt things have returned to normal since the freeze and its being upheld in appeals court. But should Trump succeed at the Supreme Court level, these challenges would be back on employers’ plates immediately. Would be wise to stay poised to help these employees — and clearly, there are a lot of them — once again if need be.

So Where Are We on H-1B Visas?

Here we are one week ahead of the presidential election, and it’s still clear as mud what the result could mean for one issue of great interest to HR: the future of employment-based immigration.

Athinkstockphotos-523158854s I wrote in our Sept. 2 cover story, the prospects for employers are not especially positive either way. With trade agreements in the political crosshairs and rising concern about how foreign workers may put residents out of work, this is not a good year to promise companies more access to talent from abroad.

But both candidates have been elusive on the subject. This spring, for example, GOP  nominee Donald Trump appeared to stake out contradictory positions, first proposing a higher bar for companies sponsoring worker visas and later announcing that “I’m changing,” recognizing the need for skilled workers, particularly in the tech industry.

More recently, Politico’s Morning Shift blog points out, Alabama Sen. Jeff Sessions, a Trump surrogate, suggested in Iowa that a Trump administration might stop issuing H-1B visas entirely.

“We shouldn’t be bringing in people where we’ve got workers,” he said at a campaign event, according to the Des Moines Register. “I don’t think the republic would collapse if it was totally eliminated.”

Democratic nominee Hillary Clinton has kept a low profile on the issue, though she appears more open than her rival to supporting the tech industry’s need for workers. Her campaign, for example, promises a President Clinton would support “stapling” a green card to certain advanced degrees earned in the U.S. by foreign workers in STEM fields.

But neither candidate addressed the issue in the three presidential debates, leaving companies that depend on foreign workers left to guess what policies they might pursue.

As befits a story important to the tech industry, there is a way to use data to get a sense which candidate might be best for the industry. The data-heavy political blog 538 this week looked at contributions from Silicon Valley to the two campaigns.

With 95 percent of the money from these donors, Clinton outdistances Trump by a huge margin. That might signal optimism about her policies on employment-based immigration.

Or it could mean something else entirely. After all, Silicon Valley is in the heart of ultra-blue California.

The Democratic Party Platform: A Cheat Sheet

ThinkstockPhotos-476244660Turnabout is fair play — at least when it comes to politics in 2016. Last week I gave you a rundown on HR-related provisions in the Republican Party platform. Now it’s time for the Democrats.

Reflecting the unusual character of this year’s race, the document — formally approved on Monday — contains many direct attacks on GOP candidate Donald J. Trump. In some cases the narrative has to stretch a bit to do so. In declaring the party’s support for small business, for example, the platform says:

“The Democratic Party will make it easier to start and grow a small business in America, unlike Donald Trump, who has often stiffed small businesses—nearly bankrupting some—with his deceptive and reckless corporate practices.”

Anyway. Back to HR. Following are the main provisions of interest.

Minimum Wage: Language in the platform on the federal minimum wage reflects some tension between the party and Hillary Clinton’s presidential campaign. Clinton favors a raise from $7.25 an hour today to $12, leaving states and cities to set higher minimums. Her now-vanquished rival, Bernie Sanders, pushed for $15. What emerged in final platform language was a compromise: $15 … “over time.” The party also calls for eliminating minimum-wage exemptions for tipped workers and those with disabilities.

“No one who works full time should have to raise a family in poverty. … We should raise the federal minimum wage to $15 an hour over time and index it [to inflation].”

Employer incentives: The party also favors federal support for employers who “provide their workers with a living wage, good benefits, and the opportunity to form a union without reprisal.” The language doesn’t specify the form of this support, but suggests such employers would get preference in existing programs.

“The one trillion dollars spent annually by the government on contracts, loans, and grants should be used to support good jobs that rebuild the middle class.”

‘Card Check’: The platform reiterates a long-held argument in favor of allowing unions to organize workplaces where a majority of workers have signed cards indicating approval — with no election. The idea, called “card check,” has been proposed in Congress for more than a decade, so far without success.

The provision is part of a larger argument the party makes in favor of stronger legislative and regulatory support for labor unions.

“A major factor in the 40-year decline in the middle class is that the rights of workers to bargain collectively for better wages and benefits have been under attack at all levels. … We oppose legislation and lawsuits that would strike down laws protecting the rights of teachers and other public employees. We will defend President Obama’s overtime rule, which protects of millions of workers by paying them fairly for their hard work.”

Mandatory Arbitration: Federal regulators have been going after companies that require workers to sign arbitration agreements that waive their rights to sue or join class-action suits. The topic got a big boost this month with news that former Fox News chairman Roger Ailes is citing such a clause in the contract of former Fox commentator Gretchen Carlson to keep her sexual-harassment lawsuit out of court.

The 2016 platform adds the cause to a list of labor measures.

“We will support efforts to limit the use of forced arbitration clauses in employment and service contracts, which unfairly strip consumers, workers, students, retirees, and investors of their right to their day in court.”

Paid leave: After a passing reference to the party’s support for gender-based pay equity, the Democratic Party platform gets more specific about laws that would mandate family and medical leave.

“Democrats will make sure that the United States finally enacts national paid family and medical leave by passing a family and medical leave act that would provide all workers at least 12 weeks of paid leave to care for a new child or address a personal or family member’s serious health issue. We will fight to allow workers the right to earn at least seven days of paid sick leave. We will also encourage employers to provide paid vacation.”

Profit-sharing: Suggesting a program that may appeal to some employers, the party also backs an unspecified government incentive to some that provide profit-sharing bonuses to employees.

“Corporate profits are at near-record highs, but workers have not shared through rising wages. … we will incentivize companies to share profits with their employees on top of wages and pay increases, while targeting the workers and businesses that need profit-sharing the most.”

International trade: Trade policy is a sore subject for both parties, with Trump and Sanders railing against NAFTA and the proposed Trans-Pacific Partnership. The Democratic Party platform walks a narrow line, calling for tougher bargaining — without shutting the door on the TPP.

“Trade agreements should crack down on the unfair and illegal subsidies other countries grant their businesses at the expense of ours. … These are the standards Democrats believe must be applied to all trade agreements, including the Trans-Pacific Partnership.”

Immigration: The 2016 party platform reaffirms longstanding calls for comprehensive immigration policy reform — but makes no mention of increasing employment-based visa allowances to help companies recruit talent abroad.

“Democrats believe we need to urgently fix our broken immigration system—which tears families apart and keeps workers in the shadows—and create a path to citizenship for law-abiding families who are here, making a better life for their families and contributing to their communities and our country.”

H-1B: Disney Retreats; DOL Investigates

The Walt Disney Co.’s Disney ABC Television Group appears to be backing off from a layoff announcement two weeks ago, in which it had told a group of approximately 35 of its IT workers that their jobs were being outsourced to Cognizant Technology Solutions, a New Jersey-based company with large overseas operations. But now, reports Computerworld, those IT workers have been told that the layoff has been canceled.

Some of the IT workers who were to be laid off were told by Disney/ABC managers they would have to train their replacements before leaving, Computerworld reports. This is, of course, reminiscent of the move by Disney’s Parks and Resorts division to outsource 250 IT jobs to workers allegedly brought in under the H-1B visa program and have many of those employees train their replacements in order to receive severance. The furor this created when it was reported recently by mainstream publications such as the New York Times may have led Disney to cancel the latest layoffs, a source told Computerworld.

“They [Disney officials] want this to go away — right now,” said the source, a Disney/ABC IT employee who asked not to be named.

A source at Disney confirmed to Computerworld that the layoff had been rescinded. Although Cognizant is a major user of H-1B visas, it is unclear whether any of the workers in the Disney/ABC project had been brought in under the program.

Other companies besides Disney have come under fire for replacing their IT workers with H-1B visa holders, including Southern California Edison. The Department of Labor has announced it will investigate two outsourcing companies, Infosys and Tata Consultancy Services, for possible violations of rules for H-1B visa holders in conjunction with work they did for Southern California Edison. Those two companies, along with several others, are the biggest recipients of H-1B visa allotments each year. Sen. Bill Nelson, D.-Fla., has also called for an investigation of the H-1B program.

The fracas continues to focus more negative attention on the H-1B program. In a post on his blog, longtime tech observer and consultant Robert X. Cringely labels the  H-1B program “a scam” and says the argument that it’s necessary due to a shortage of technical talent here in the United States is false. He quotes an anonymous source, identified as a former chief technology officer at several companies, who said that — throughout his career — H-1B visa holders were routinely brought in by companies as a cheaper alternative to hiring more-expensive American tech workers: “The reason of course was $$$.  The H1B’s cost approx. 1/3rd or 1/4th the cost of the comparable American in the same job.”

Learning the Language

EnglishEmployers with hopes of maintaining a skilled U.S. workforce in the future would be wise to initiate English-education programs in the present, according to a just-released report from the Brookings Institution’s Metropolitan Policy Program.

The study, which the Washington, D.C.-based think tank describes as “the first-ever metro-level analysis of limited English-proficient workers in U.S. metropolitan areas,” finds almost one in 10 adults of working age in the United States—19.2 million people between the ages of 16 and 64—lacks full proficiency in English.

Based on U.S. Census Bureau data culled from a 2012 survey, Brookings’ Investing in English Skills: The Limited English Proficient Workforce in U.S. Metropolitan Areas identified 89 of the most populous U.S. metro areas and ranked them for size and share of their population that is limited English-proficient (LEP) as well as for growth or decline in limited English-proficient population since 2000. The report also provides detailed characteristics of metro areas’ LEP workforce, including the languages they speak, the occupations and industries in which they work, employment rates, median income and educational attainment.

According to the study, metro areas with a high concentration of immigrants, especially metro areas in California and Texas, “dominate the list of metros with the highest share of their working-age populations that is LEP,” according to a Brookings statement. Among the top 10 metro areas studied, Miami is the only one not located in either California or Texas.

In addition to recommending increased funding from the Workforce Investing Act; targeted outreach and instructional innovation enabling LEP adults to access instruction at the worksite, online and by mobile device; the report urges employers to invest in English-education programs, particularly companies operating in industries with the highest numbers of LEP workers, such as manufacturing, food services, construction and the retail trade.

“English proficiency is the most essential means of opening doors to economic opportunity for immigrant workers in the United States,” says Jill H. Wilson, senior research analyst and associate fellow at the Brookings Institution, and author of the report, in a statement. “Yet access to acquiring these skills is persistently limited by a lack of resources and attention.”

In the same statement, Wilson theorizes that the price for failing to provide these workers with more opportunities to improve their English-speaking skills will only get steeper with time.

“Given the large number of LEP workers in the United States, and the fact that virtually all of the growth in the U.S. labor force over the next four decades is projected to come from immigrants and their children, it is in our collective interest to tackle this challenge head on.”

Employers’ ‘Scariest Issues’ in 2014

I don’t know how frightened you are by all these. I do know you’re aware of each and every one of them. But I thought I’d share them anyway.

465250769 -- frightenedWhat intrigued me about this free downloadable list of the 11 (not 10, mind you) Scariest Issues Employers Face in 2014 from XpertHR is how cleanly they’re all packaged. And the list itself seems pretty accurate as well: medical (and, yes, recreational) marijuana in the workplace, same-sex marriage, technology in the workplace, healthcare reform, immigration and Form I-9 compliance, misclassification of independent contractors, minimum wage and overtime violations, curtailing background checks, emerging protected classes and curbing workplace discrimination, employee leaves and reasonable accommodations, and expansion of “protected concerted activity.”

Whoever put this together knows a little something about HR leaders’ sleepless nights, I’m thinking.

I also like the way each topic is broken down into two parts: “The Issue” and “What an Employer Should Do.” Hey, those are certainly two of the most important points we need to cover in our features and news analyses here at HRE.

The same-sex-marriage section was especially helpful, laying out specifically how United States v. Windsor (in which the U.S. Supreme Court declared Section 3 of the Defense of Marriage Act unconstitutional) impacts employers:

Following this landmark decision, both the Internal Revenue Service and Department of Labor adopted a state of celebration rule, meaning that a valid same-sex marriage from another state must be recognized for federal tax purposes in all states. Thus, even if an employee resides in a state that does not recognize same-sex marriage, that employer must comply with IRS regulations regarding the tax treatment of employee benefits. The DOL has pronounced that in the wake of Windsor, same-sex spouses are now eligible for the same benefits and protections as opposite-sex spouses under employer health plans, retirement plans and other benefits covered under the Employee Retirement Income Security Act. Same-sex spouses are also entitled to leave under the Family and Medical Leave Act if living in a state recognizing same-sex marriages.”

Kind of wraps it up nicely. The advice to employers is what you’d expect, and what we’ve written about, but it’s still nice to see it packaged concisely as well:

Accordingly, employers should review their employee handbooks, policies and procedures — particularly pertaining to discrimination, benefits and leaves — and make any necessary revisions regarding the treatment of same-sex spouses. Further, employers should know what types of same-sex relationship their states recognize, the tax benefits provided to an employee’s same-sex spouse or partner, and whether the state follows or departs from federal law under Windsor.”

Also helpful, and in one place, is a chart listing where every state stands on legalized marijuana, same-sex-marriage recognition, minimum wage (with each state’s wage listed) and adoption of Ban-the-Box (criminal background) legislation.

Again, you may not learn anything startlingly new, but armed with brief rundowns and good advice on each of these “scary issues” might help alleviate some trepidation.

I know I plan to hang onto it for some handy frames of reference.

 

 

Sending IT Outsourcing Firms a Message

Corporations, particularly those seeking IT workers, have long complained about the limited number of H1-B visas available. You may recall the government ran out of these visas in less than a week in April. But the U.S. government would like employers in general — and IT outsourcing providers in particular — to know that if they’re thinking about getting around the system by obtaining visitor visas instead, they’d better think again.

119752726Bloomberg.com reports this morning that Bangalore, India-based Infosys has agreed to pay a $34 million penalty to the federal government over allegations that it was acquiring B-1 business visas in the place of H1-B visas, confirming that the Justice Department is serious about cracking down on employers attempting to get around the system. (The Wall Street Journal — subscription sitefirst reported yesterday that the settlement would be coming today.)

Infosys denies and disputes any claims of systemic visa fraud, misuse of visas for competitive advantage or immigration abuse. In a statement released this morning, it said …

Those claims are untrue and are assertions that remain unproven.  The company’s use of B-1 visas was for legitimate business purposes and not in any way intended to circumvent the requirements of the H-1B program. Only .02% of the days that Infosys employees worked on U.S. projects in 2012 were performed by B-1 visa holders.”

No criminal charges were filed against the company. Further, its eligibility for federal contracts and access to U.S. visa programs would not be affected by the settlement.

At $34 million, the settlement has no doubt gotten the attention of anyone considering getting around the system in this way.

Late yesterday I asked immigration attorney Carl Shusterman to share his thoughts …

“I’ve been doing immigration law for close to 35 years and I have not seen a company that has tried to bring people here on visitor visas and put them to work in this way,” he told me. “I’m sure there have been a few individual cases that have not come to my attention,” but a fine of this [magnitude suggests the federal government believed this was being routinely done].”

Shusterman adds that he’s surprised leaders of a company this size would think they could get away with something like this.

DHS Issues Post-Shutdown E-Verify Guidance

E VerifyOn the heels of its Oct. 17 announcement that E-Verify is again available for employers’ use, the Department of Homeland Security has released guidance and instructions to employers affected by the temporary shutdown of the employment eligibility verification program.

For instance, DHS has extended the usual three-day time period that employers are given, from the date of hire, to create an E-Verify case for new employees. According to DHS, employers have until Nov. 5, 2013 to create E-Verify cases for any employees hired during the shutdown. The agency has also directed employers to choose the “other” option from the drop-down list and enter “federal government shutdown” in the text field.

In addition, DHS has clarified that employers should add 12 federal business days to the date printed on any tentative non-confirmation referral letters generated for employees who received a TNC between Sept. 17, 2013 and Sept. 30, 2013, and were unable to resolve the tentative non-confirmation with either DHS or the Social Security Administration as a result of the shutdown.

With regard to employees who received final non-confirmations or no-shows because of the shutdown, DHS advises employers to close the case and select either “The employee continues to work for the employer after receiving a Final Non-Confirmation result,” or “The employee continues to work for the employer after receiving a No-Show result.” Employers should then enter a new case in E-Verify for that individual employee, reinstating the TNC process.

Finally, DHS directs federal contractors that missed E-Verify deadlines to follow the above instructions for resolving outstanding issues, and to communicate with their contracting officers regarding these instructions.

New Immigration Bill Proposes Big Changes

Capitol buildingAfter months of negotiation, the Gang of Eight has finally emerged to introduce its long-awaited plan to revamp U.S. immigration laws.

On April 16, the bi-partisan group of eight U.S. senators unveiled The Border Security, Economic Opportunity and Immigration Modernization Act of 2013, which traces a 13-year path to citizenship for many of the 11 million individuals currently in the United States illegally, earmarks billions of dollars for border security and, of course, includes provisions with significant ramifications for the workplace.

First and foremost, the legislation contains stipulations that “would serve to increase employers’ access to authorized workers,” says Leigh Ganchan, a Houston-based attorney with Ogletree, Deakins, Nash, Smoak & Stewart.

For example, the Senate bill mandates that all employers use the E-Verify system to check the immigration status of new employees. Employers with less than 5,000 employees must phase in the system over a five-year time frame, while those with more than 5,000 must do so within two years.

The E-Verify program itself could be in for an overhaul as well, with proposed enhancements including a photo-matching tool and capabilities for employees to essentially lock their Social Security numbers in the system to prevent misuse. Non-citizens would be required to carry biometric work authorization cards, with pictures that employers would have to certify as matching with photos in the E-Verify system.

The bill also proposes increasing the cap on the number of H-1B visas from 85,000 to 205,000, and creates up to 200,000 “W visas” per year, issued for individuals to work in retail, construction, hospitality and janitorial jobs.

Immediate reaction to the bill—which the U.S. Senate could act on as early as this June—has been mixed. Opponents say the bill’s passage would add to an already crowded pool of candidates for American jobs. Business and labor groups such as the U.S. Chamber of Commerce and the AFL-CIO, however, have thrown their support behind proposed efforts to usher in new visa programs for low- and high-skilled workers. President Obama, who on Tuesday described the legislation as a “compromise,” but containing “common-sense steps that the majority of Americans support,” has urged Congress to move swiftly.

The legislation’s fate remains to be seen, but its prospects for passage “seem very good,” according to Ganchan.

“With heavy hitters in the Senate such as Senator Leahy (D-VT), chair of the Judiciary Committee, and Senator Reid (D-NV), Senate majority leader, committed to making time to get the immigration bill debated and voted on, the outlook is more favorable than we’ve seen in years,” she says. “Moreover, House leaders such as House Judiciary Committee Chair Rep. Goodlatte (R-VA) have signaled their readiness to engage in meaningful debate. With both parties and both sides of Congress working together, we might see results sooner than later.”

 

The Costs of Coming to America

As unions and business groups squabble over the number of H-1B visas, the fee of those visas have increased about 600 percent, according to news reports.

To pay for border security, a bill signed by President Barack Obama last week increases the H-1B visa fee from $320 to $2,320.

The fees seem to offend just about every constituency. The business community, especially Silicon Valley firms, say it will hurt their organizations’ ability to recruit top talent, according to the Wall Street Journal.

Indian outsourcing companies say the law specifically discriminates against them as “the carefully crafted criteria” in the bill seems to target them.

Outraged companies may bring a suit before the World Trade Organization, contending the fees are protectionist, while other experts say that, instead of being protectionist, the fees will actually lead to more outsourcing of jobs overseas.

The increased fees are designed to raise about $200 million a year. “The money raised is insigificant and the damage [to America’s reputation] is huge,” Vivek Wadhwa, an immigrations expert and professor, told the WSJ.