hiring and retaining talent in tough economic times july 14, 2009

Hiring and Retaining Talent in Tough Economic Times

July 14, 2009

Copyright © 2009 Fragomen, Del Rey, Bernsen & Loewy, LLP

Michael F. Turansick, Esq.Cheri Peterson-Ross, Esq.

Fragomen, Del Rey, Bernsen & Loewy, LLP

Diane Padilla, Esq.Executive Director & Assistant General Counsel

JPMorgan Chase

Robyn WheelerVice President, Human ResourcesJones Lang LaSalle Americas, Inc.

PresentersPresenters


AgendaAgenda

- Global Overview

- Impact of Economic Downturn on Foreign Workers

- Trends in Enforcement Actions

- U.S. Legislative Update


Global Overview

•Continued friction between short-term and long-term immigration policies- Short-term issue: Labor Market Protection

• U.K.: increase in educational and prior earnings requirements for highly skilled migrant program

• Australia: Reduce skilled worker quota by 14% in 2009

• Canada: Job Bank posting for 14 days or use recruitment practices that are normal with occupation during preceding 3 months


Global Overview

•Continued friction between short-term and long-term immigration policies- Long-term issue: Demographic trends and Global Competition for Talent• EU: Blue Card - Allows qualifying, highly-skilled non-EU

nationals to reside and work for up to 4 years (renewable) in any EU member state, except for the United Kingdom, Ireland and Denmark.

• France: “Skills and Talents” permit – Allows foreign professionals, particularly in the IT sector, to work for 3 years (renewable)

• Philippines: Created “Special Visa for Employment Generation” to allow those creating 10 jobs to remain indefinitely


Impact of Economic Downturn on Foreign National Workforce

•Industry Perspectives•Review of impact on workforce

• Past hiring practices and hiring projections?

• On-going efforts to attract global talent?

• Retention efforts?

•Steps taken to manage impact on foreign national workers


Impact of Economic Downturn on Foreign National Workforce – Reductions in Force

•Consequences to Nonimmigrant and Immigrant Sponsorship Process• Retaining Nonimmigrant Workers During RIF• Practical and Legal Considerations in Conducting PERM

Recruitment Following a RIF

• Salary Reductions and Other Cost-Saving Measures

•Hiring Foreign Nationals – H-1B Cap Overview• Significance of decreased demand

• Adjudication trends


RIFs: Increased Federal Scrutiny

• Employee complaint driven system• Interested Federal Agencies

- Department of Labor • Wage and Hour Division

- Equal Employment Opportunity Commission• Employment discrimination claims

- Immigration and Customs Enforcement • Form I-9 Audits

• Civil Litigation


Trends in Worksite Enforcement

• Secretary Napolitano announced new guidelines for workplace immigration enforcement.

• Target employers for arrest and prosecution rather than employees.

• February 24th raid of Yamato auto part plant in Bellingham, Washington

27 of 28 employees released Ongoing investigation of employer

• Assistant Secretary John Morton (ICE) announced renewed focus on civil I-9 sanctions

- 652 audit notices in June (more than 2008 total)

• USCIS Director Mayorkas indicated intent to enhance fraud detection and prevention efforts

• DOL: enhanced focus on H-1B/H-2B wage issues


Trends in Worksite Enforcement: E-Verify and Federal Contractors

•Federal Contractors will need to use E-Verify system to confirm that all new hires and existing employees directly working on federal contracts are authorized to work in the United States as of September 8, 2009

•2 categories of employees must be verified:- New Hires- All new employees, following completion of the Employment

Eligibility Verification Form I-9- Existing employees working on the contract- hired after Nov. 6, 1986

• Employees directly performing work in the U.S. under a contract that includes the clause committing the contractor to use E-Verify

• Does not include employees who normally perform support work, such as indirect or overhead functions, and who do not perform any substantial duties under the contract

• Amendment to DHS Appropriations Bill (7/8/09) would make E-Verify mandatory for all employees of federal contractors - No exemptions


E-Verify: Timing of the Rule

•Federal contractors and subcontractors will be required to begin using E-Verify system starting Sept. 8, 2009- Applies to federal contracts awarded after Sept. 8, 2009 - DOD/GSA/NASA will include a clause committing government contractors

to use E-Verify

•Companies awarded a contract with the federal government will be required to enroll in E-Verify within 30 days of the contract award date- Will have to sign MOU - Will have to take E-Verify tutorial


E-Verify: How to Prepare

•Do you have any qualifying federal government contracts or subcontracts?

•Determine who will be responsible for identifying and verifying existing employees assigned to contracts.

•Assess whether your I-9 Forms are in order and consider conducting an audit to determine whether new I-9 Forms will be needed or if should be updated.

•Determine who will be responsible for overseeing compliance and handling tentative non-confirmations.


E-Verify: How to Prepare

•Remember: you cannot begin to E-Verify existing employees prior to contractual obligation taking effect and registration in E-Verify as federal contractor

•Federal contractor rule obligations flow from the contract- Must wait until existing contracts are modified to include the

language- Or until new contracts are entered into that contain the

language


GOOD: Return of Comprehensive Immigration Reform

•Comprehensive reform endorsed by President Obama- Item 3 or 4 on national agenda (Healthcare, Energy and

Supreme Court nomination)- “Immigration Summit” held on June 25, 2009- Current focus on legalization program for undocumented

workers- Other aspects: temporary workers; family/employer based visa

reform; and enhanced border and worksite enforcement- Labor Union support of immigration reform

• Legalization of the status of illegal immigrants;• Opposition to temporary or guest-worker programs;• Establishment of national commission to determine the number of

permanent and temporary workers allowed based on labor market demand


• Employers that receive funds under the Troubled Asset Relief Program (TARP) or Section 13 of the Federal Reserve Act (FRA) subject to newly-enacted hiring requirements for H-1Bs- Good faith recruitment

- Non-displacement of U.S. workers

• Does not apply to employees currently working for the employer in H-1B status or another nonimmigrant classification

BAD: Impact of Economic Stimulus on H-1B Provisions


UGLY: H-1B and L-1 Visa Reform Act (a/k/a “Durbin-Grassley” Bill)

•Significant Changes to L-1 and H-1B nonimmigrant visa categories

•L-1 Category- New wage requirements for all

- Limitations on placement of L-1 workers at secondary worksites

- Additional requirements for “new office” L-1 petitions

•H-1B Category- Labor market test and non-displacement requirements for all

- Increased wage requirements

- Limitations on placement at secondary worksites

•Enhanced Enforcement Authority


Questions?


THANK YOU!

hiring and retaining talent in tough economic times july 14, 2009

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