Saturday, February 14, 2009

Stimulus bill restricts H-1B new hires.

The economic stimulus bill passed by Congress yesterday contains restrictions on hiring of H-1B workers by financial institutions. Under a provision in the bill, any firm receiving TARP (Troubled Asset Relief Program) funds will be automatically considered H-1B dependent, regardless of the percentage of H-1B workers on the payroll. Normally, H-1B dependent companies are those with over 15% of their workers on H-1B visas.

The H-1B dependent designation subjects employers to a number of provisions, including a good faith effort to hire US workers first. Under the stimulus bill, any new H-1B hires by companies receiving funding would by subject to the H-1B dependent rules. These rules include attesting to actively recruiting American workers; not displacing American workers with H-1B visa holders; and not replacing laid off American workers with foreign workers.

These provisions could be elaborated in conference, and it remains to be seen how the provisions will affect new H-1B hires subject to the H-1B cap.

Monday, February 9, 2009

Can I "reactivate" an old green card?

People often wonder if they can enter the United States to work, using a permanent resident card (green card) that they got when they last lived here many years ago. These people have usually been outside the US, in their home countries, for years and are now considering returning to the US. Permanent residence is granted to a person on the basis, not surprisingly, that they intend to reside in the US.

If a permanent resident is going to work outside the US for 6 months or longer, we recommend that they apply for a re-entry permit. This is a document requesting permission to re-enter the US after an extended absence. Requesting a re-entry permit notified CIS in advance that you plan a protracted stay, however that you don't intend to abandon permanent residence.

A person who has returned to their home country for years and now wants to "reactivate" their green card is unlikely to have been filing for re-entry permits. In those situations, it is unlikely that immigration at the airport (CBP) will admit the person as a permanent resident. If CBP questions the traveller and finds out that the traveller has been living outside the US for years, CBP will almost certainly revoke permanent residence and confiscate the card. This is not an unreasonable action if a former permanent resident really has shown the intention of abandoning their US residence.
It is likely that the CBP officer who revoke permanent residence will allow the traveller to "withdraw" their application for admission to the US. However, in the worst case scenario, the officer could conclude that the traveller had committed fraud in attempting to enter as a permanent resident. A finding of fraud means a permanent bar to ever entering the US, so this possibility, even if unlikely, should be considered very seriously.