Bill Would Ban Use of Foreign Labor After Mass Layoffs

Immigration stamp on a passportSenators Bernie Sanders (I-Vt.) and Charles Grassley (R-Iowa) have introduced legislation that would prevent large companies that conduct mass layoffs from hiring foreign labor through guest worker programs. The Employ America Act (S. 2804) (pdf) builds on similar prohibitions included in the American Recovery and Reinvestment Act (ARRA or “Economic Stimulus”), which prevents companies receiving funds through the Troubled Asset Relief Program (TARP) from replacing laid-off citizen workers with foreign labor. Under the terms of the Employ America Act, no guest worker visa petitions would be approved unless the employer provides written certification that it has not provided a notice of a mass layoff pursuant to the Worker Adjustment and Retraining Notification (WARN) Act in the past 12 months, and does not intend to do so. The provisions of the WARN Act apply to employers with more than 100 employees that lay off at least a third of their workforce and 50 or more workers. If such a large employer has instituted a mass layoff, any visa applications already approved would expire 60 days after the WARN notice is provided. An employer would be exempt from this requirement if it provides written certification that the total number of its citizen workers employed in the United States have not and would not be reduced as a result of the mass layoff.

In a statement, Sen. Sanders said: “With the unemployment rate still climbing and millions of people looking for work, we have a responsibility to ensure that companies do not use the temporary guest-worker program to replace American workers with cheaper labor from overseas.” Sen. Grassley echoed this statement, noting that “Our foreign guest worker programs are in place to fill employment needs where there is a shortage of American workers, not as a subterfuge to hire cheap labor.” According to this statement, the tech industry in particular has hired thousands of guest workers under the H-1B visa program, yet has laid off over 345,000 workers since August of 2008. The bill sponsors also claim that the construction industry – a major employer of H-2B guest workers – has laid off more than 1.5 million workers in the past two years.

This bill coincides with recently-announced efforts by the Department of Homeland Security to beef up its audits of employers that hire foreign workers. Last week, the United States Citizenship and Immigration Services (USCIS) issued over 1,000 Notices of Inspection (NOIs) to employers to verify the employment eligibility of their employees. In addition, according to an article in Computerworld, the USCIS plans to conduct 25,000 on-site inspections of companies hiring foreign workers under the H-1B guest worker program this coming fiscal year.

Photo credit: David Franklin

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.