Immigration Legislation for Employers to Watch

April 28, 2009

Employers in Maine should follow a couple of important pieces of immigration legislation currently introduced in the U.S. Senate.

H-1B and L-1 Visa Reform Act of 2009

Although the text of this bill is not yet available, it is expected to make both the H-1B and L-1 visa programs more onerous for employers.  Similar legislation was introduced last year, which seeks to:

• Require all employers who want to hire an H-1B worker to first make a good-faith attempt to recruit a qualified  American worker. Employers would be prohibited from using H-1B visa holders to displace qualified American workers. 
• Prohibit employers from hiring additional H-1B and L-1 guest-workers if more than 50% of their employees are H-1B and L-1 visa holders.
 
Currently, recruitment of U.S. workers is a prerequisite to the most common green card process through employment, but not for the H-1B program.  Many Maine employers who use the H-1B program are health care institutions where there is already a demonstrated shortage of qualified U.S. physicians and therefore an obvious need for the H-1B professionals’ services.  Moreover, the current lack of nationwide demand for H-1B visas should highlight the fact that the demand for H-1B visa numbers goes up and down with the economy.  Accordingly, the current need for this legislation is unclear.  Regardless, according to Senator Durbin’s website, the bill would also authorize investigations by the USDOL of employers using the H-1B and L-1 programs in the absence of a complaint. 

Many Canadian businesses use the L-1 visa to start operations in the U.S. and transfer essential personnel here to oversee those operations.  As these companies typically employ a number of L-1s when setting up shop in the U.S., depending on how it applies, the 50% restriction could be an issue in the initial stages of U.S. operation.  Both types of employers should watch this legislation closely.

Conrad State 30 Improvement Act

S. 628 is a bill sponsored by the Conrad 30 program’s namesake, Senator Kent Conrad of North Dakota, and co- sponsored by Maine’s Senator Susan Collins.  For health care employers in underserved areas, S. 628 is a potentially important piece of legislation, and the American Hospital Association has applauded the bill.  

Since 1994, the Conrad 30 program has been what amounts to something fairly unusual in the immigration world – an unmitigated success.  It allows doctors educated abroad who train in the U.S. on J-1 visas to obtain a waiver of the requirement that they return to their home countries for two years.  In exchange for that waiver, the foreign physicians agree to work in health professional shortage areas or medically underserved areas for three years.  It has been a win-win for foreign physicians wishing to remain in the U.S. and for areas desperately in need of qualified medical professionals.

Currently, the Conrad 30 program must be reauthorized by Congress every few years. S. 628 would make the program permanent, and also make the following changes:

• Open up the Conrad 30 program to H-1B visa holders, who, in exchange for working in an underserved
area for 3 years, would be exempt from:

° The annual H-1B cap;
° The 6-year limit on H-1B status; and
° Green card caps.

• Potentially increase the per state waiver allotments based on waiver usage.
 
Each state currently gets 30 waiver slots per fiscal year.  Should this bill go through as currently written, it will be interesting to see what effect it will have on Maine’s Conrad 30 program.  Maine typically does not use all of its allotted 30 waiver slots each year.  By opening the program up to H-1B visa holders, and given the current backlog of immigrant visas for many foreign physicians from India, demand for the 30 slots will likely increase, and Maine may see foreign physicians who are now working in other states seek out Maine for employment opportunities.  The 30 slots may be exhausted more quickly, although that achieves the intended benefit.  While the legislation provides for an automatic increase in the number of per-state waivers if the usage of waivers increases to a certain level, it is unclear whether this increase will be sufficient to meet potentially increased demand.  

Exempting participants from the immigrant visa/green card caps will be welcome relief to many physicians who are Indian nationals and who have been waiting years in some cases for a green card. While targeted immigration reform has been held up recently by the push for comprehensive immigration reform, both pieces of legislation are worth following.

This document was prepared by Matthew S. Raynes. For further information, contact Matthew S. Raynes at mraynes@eatonpeabody.com.

This paper is provided as general information, and is not a substitute for legal or other professional advice.