During several weeks of debate, the Senate Judiciary Committee considered a number of proposed amendments to the employment-based nonimmigrant and immigrant provisions of the comprehensive immigration reform bill known as the Border Security, Economic Opportunity, and Immigration Modernization Act. The Committee adopted several key amendments, including a proposal requiring employers to disclose their company name, address, and other details when posting H-1B positions to a mandatory recruitment website. A proposal to increase the proposed labor certification fee, from $500 to $1,000, was also passed. Defeated was a plan to require annual audits of at least one percent of all H-1B and L-1 employers (in addition to high-volume H and L employers, who are already subject to audits elsewhere in the bill), as was an amendment to eliminate the provision permitting employers to exempt "intending immigrants" from the calculations used for determining H-1B dependency and highvolume H-1B and L-1 usage.
On the employment eligibility verification provisions of the bill, the Committee voted down an amendment that would have required all employers to use E-Verify within 18 months of the bill's enactment instead of a phased-in five-year period required by the original bill. It also approved a plan requiring USCIS to report E-Verify non-confirmations to Immigration and Customs Enforcement (ICE) on a weekly basis, but a provision to require ICE to investigate every non-confirmation was defeated.
The Judiciary Committee approved the immigration bill by a vote of 13-5 on May 21, 2013, and the bill now moves to the full Senate. We expect the Senate to begin debating the bill during the week of June 10, 2013 or soon thereafter. We are also expecting the House of Representatives to soon introduce its own comprehensive immigration reform bill. We are continuing to closely monitor and participate in the ongoing debate on Capitol Hill, and will provide additional updates as they become available.
New York Court Holds H-1B Petition Establishes Employment Contract
A recent New York State Appellate Division decision has determined that an H-1B petition requesting a three-year period of services constitutes an employment contract binding the employer to employ the sponsored employee for the entire length of the requested petition validity. In that case, Kaushal v. Educational Products Information Exchange Institute, the New York State Supreme Court Appellate Division for the Second Department (which includes Brooklyn, Queens and Long Island) awarded back pay to an H-1B worker who was paid below the stated amount listed on the H-1B petition filing. While the results seem fair, and while the same remedy of back pay would have been ordered by the Department of Labor had the individual filed a complaint in that forum, this court decision does contain shocking language construing an H-1B petition to be a guaranteed employment contract.
We therefore recommend that all companies hiring H-1B employees should make clear, in a separate written document signed by both the employee and the employer, that the H-1B employee will at all times remain an "at will" employee, and further providing that the H-1B petition is not to be construed as a contract guaranteeing future employment. In addition, we remind our clients that if an H-1B employee is terminated, you must advise the individual in writing, offer to pay the return transportation costs, advise USCIS of the termination in writing, and withdraw the previously approved Labor Condition Application.