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Hiring and Retaining Talent in Tough Economic Times

July 14, 2009. Hiring and Retaining Talent in Tough Economic Times. Presenters. 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 Wheeler

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Hiring and Retaining Talent in Tough Economic Times

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  1. July 14, 2009 Hiring and Retaining Talent in Tough Economic Times

  2. Presenters 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 Wheeler Vice President, Human Resources Jones Lang LaSalle Americas, Inc.

  3. Agenda • Global Overview • Impact of Economic Downturn on Foreign Workers • Trends in Enforcement Actions • U.S. Legislative Update

  4. 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

  5. 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

  6. 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

  7. 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

  8. 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

  9. 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

  10. 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

  11. 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

  12. 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.

  13. 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

  14. 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 determinethe number of permanent and temporary workers allowed based on labor market demand

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

  16. 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

  17. Questions?

  18. THANK YOU!

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