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Tuesday, November, 17, 2009

Tired, Poor, Huddled Masses Yearning To Breathe Free From Rough Economy, As Well: H-1B And PERM In A Down Economy

Toolbox's all-time, favorite scene in a movie (for sheer, unintended comic genius) remains the one in The Day After Tomorrow where Americans race across the Rio Grande into Mexico to avoid the coming ice age. Toolbox watched that movie with an immigrant, who after guffawing, said (and Toolbox paraphrases a much more colorful utterance here), "Well, sometimes it's necessary to walk in someone else's shoes." As news reports filter in about declining illegal immigration, it's important to note that times are tough all around. During a recession, legal immigrants and employers seeking to hire them are kind of in a co-dependent Catch-22. The more the unemployment rate rises (10.2% at last official report), the more calls come for restricting immigration. But restricting immigration can hinder economic recovery in industries like technology and health care. See Business Week, "Immigration Amid a Recession." And what happens when a company lays off immigrant workers? For employers with H1-B workers and PERM obligations, a rough economy simply adds burdens.

To get a handle on the Catch-22, check out The Effects of the Recession on H-1B Visa Holders and PERM Applications, by Deborah J. Notkin (Barst & Mukamal LLP). In a nutshell, the article examines "the legal obligations employers have as H-1B petitioners [, which] often require them to take additional measures in dealing with their H-1B employees," and looks at the "profound impact" the economy has had on the PERM process "required to obtain employment based permanent residence for foreign employees." Notkin reviews the issues presented by potential layoffs, changes in wages and hours and labor certification issues. Just as an example, Toolbox learned that "in the case of H-1B workers, the involuntary absence of wages created by a layoff will generally force an employer to permanently terminate an H-1B worker for the purpose of the current H-1B petition." Once an employer notifies USCIS that an H1-B employee has been laid off, the worker technically loses status and has to leave the country, and the employer has to pay for the trip home. "Many employers try to mitigate the devasting impact on H-1B aliens by informing them of the layoff in advance so that they remain employed and on the payroll for a period of time which allows them to look for another position, if they so desire, in order to have the possibility of another employer filing an H-1B petition to maintain their status." So those huddled masses who are tired and poor on the way in may just become tired and disgusted on the way out. And that's just the beginning of this helpful and enlightening article.

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