Compliance April 4, 2007

U.S. Senators Propose High-Skill Worker Visa Reform Measure

April 4, 2007 (PLANSPONSOR.com) - Two prominent U.S. Senators have introduced a bill they say would overhaul specialized visa programs to give priority to highly skilled Americans and battle employers who illegally keep U.S. citizens out of the specialized jobs.
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Senators Dick Durbin (D-Illinois) and Chuck Grassley (R-Iowa) introduced The H-1B and L-1 Visa Fraud and Abuse Prevention Act of 2007, according to a  joint news release from the two lawmakers.

Dating back to 1990, the H-1B program allows foreigners with at least a bachelor’s degree in their area of expertise to be legally employed in U.S. for up to six years with an annual allotment of 100,000 including visas granted to those with advance college degrees from American universities.

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The H-1B visa program applies to those in a job category that is considered by the U.S. Citizenship & Immigration Services to be a “specialty occupation.” The L-1 visa program allows companies to transfer certain employees from their foreign facilities to their U.S. facilities for up to seven years.

“Our immigration policy should seek to complement our U.S. workforce, not replace it,” Durbin said, in the news release. “This bill will set up safeguards for American workers, and provide much-needed oversight and enforcement of employers who fail to abide by the law.”

According to the announcement, the proposal:

  • would require all employers seeking to hire an H-1B visa holder to pledge that they have made a good-faith effort to hire American workers first and that the H-1B visa holder will not displace an American worker. Under current law, only employers that employ H-1B visa holders as a large percentage of their U.S. workforce are required to make that pledge.
  • requires that before an employer may submit an H-1B application, the employer must first advertise the job opening for 30 days on a Department of Labor (DoL) Web site. DoL would also be required to post summaries of all H-1B applications on its Web site.
  • would require that H-1B employers may not advertise a job as available only for H-1B visa holders or recruit only H-1B visa holders for a job.
  • would prohibit employers from hiring H-1B employees who are then outsourced to other companies. This is a method that some companies use to evade restrictions on hiring H-1Bs.
  • would prohibit companies from hiring H-1B employees if they employ more than 50 people and more than 50% of their employees are H-1B visa holders.
  • would give DoL the ability to conduct random audits of any company that uses the H-1B program and would require DoL to conduct annual audits of companies with more than 100 employees that have 15% or more of those workers on H-1B visas.
  • would give DoL authority to review employers’ H-1B applications for “clear indicators of fraud or misrepresentation of material fact.” Currently, DoL is only authorized to review applications for “completeness and obvious inaccuracies.”
  • would strengthen existing whistleblower protections for the H-1B program and establish whistleblower protections for the L-1 program.
  • would require H-1B and L-1 employers to pay employees the prevailing wage to ensure employers are not undercutting American workers by paying substandard wages to foreign workers.
Compliance April 3, 2007

Disability Finding in Sick Building Case Upheld

April 3, 2007 (PLANSPONSOR.com) - A Denver attorney whose office building apparently made her sick was entitled to disability payments, an appellate court has ruled.
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The 10 th  U.S. Circuit Court of Appeals upheld a ruling by U.S. District Judge William F. Downes of the U.S. District Court for the District of Colorado that attorney Pamela Ray’s headaches, congestion and fatigue disabled her from her work in complex real estate transactions.

In writing for the court, Circuit Judge Mary Beck Bricoe said the record showed that Ray could not work from home or a remote location because her practice was not easily transferable to another firm and equivalent employment would be very difficult to find. Even if she could locate another job, Briscoe asserted, it would most likely be in a large office building because her practice required the resources of a large firm.

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Bricoe found  Downes did not err in holding that working in a large office building was a material duty of Ray’s occupation, and thus she was disabled from performing her job as a real estate attorney.

According to court documents, Ray was a partner at Gibson, Dunn & Crutcher specializing in major real estate deals and oil, gas, and mining transactions. She was a participant in a long-term disability benefit plan administered by UNUM Life Insurance Co. of America. In 1993, the court documents said Ray began to experience symptoms including cough, dizziness, fatigue, sinus pressure and pain, and chest congestion.

A year later, Ray filed a claim for benefits listing severe fatigue, headaches, dizziness, chest pain, and allergic reactions to chemicals as preventing her from working. UNUM turned the claim away, insisting the Ray was not disabled under the provisions of the plan – a decision prompting Ray to sue.

The 10 th Circuit ruling in Ray v. UNUM Life Insurance Co., 10th Cir., No. 05-1284, unpublished 3/28/07, is  here .

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