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These articles by Barbara Fox were prepared for the December 6,
of U.S. 1 Newspaper. All rights reserved.
Visa Law Changes
It’s been an exciting nine weeks for business
law," says David H. Nachman of Grotta, Glassman & Hoffman.
Last year, if you spent thousands of dollars to import a skilled
worker, you could be fairly sure that the worker could not easily
jump ship and go to a competitor. This year you cannot be so sure.
The federal "American Competitiveness in the 21st Century Act
of 2000," signed into law at the end of October, seems to make
it easier for certain skilled workers to move from one company to
another. But depending on how the Immigration and Naturalization
fashions its regulations around the new law, these moves may not be
easier after all. "What they gave with one hand they took away
with another," says Nachman.
Nachman and his colleague in the Roseland-based firm, Jed L.
speak on "Hiring/Retaining Foreign Workers: New H-1B Visa Act"
on Tuesday, December 12, at 8:30 a.m. The workshop is sponsored by
the Employers Association of New Jersey and is held at the Fairfield
Radisson. Cost: $65. Call 609-393-7100.
Marcus majored in English at Rutgers, Class of 1975, and has a
in labor relations from Rutgers and a law degree from the University
of Oklahoma. Nachman went to Georgetown, Class of 1985, and has both
a law degree and an MBA from Case Western (www.gghlaw.com and
The law increases the number of H-1B visas for highly skilled workers.
(The H-1B visa is a non-immigrant visa for professional and specialty
occupation workers, granted at first for three years, with a
extension possible.) It also eases alien mobility by adjusting the
green card process and adding a "portability" aspect.
This H-1B visa portability raises a challenge for employers. Under
the old law, H-1B was "employer specific." If Company A got
the H-1B for a specific worker, that worker could not get up and leave
for Company B. Company B had to get a different visa for that worker.
"That system gave a little bit of protection for the
says Marcus. "You couldn’t just walk off the job one day and work
for a competitor the second day. Under the new law, Company B still
needs to get a new visa, but the employer can begin to work for
B as soon as the petition is filed and does not have to wait for it
to be approved. It makes the transition from A to B more seamless
and less cumbersome for the employee."
Such poaching by Company B does not seem fair to Employer A, which
may have spent thousands of dollars to bring the new employee into
the country. He is working for Employer A and is learning all about
the high tech industry and the product when company B swoops in and
offers to pay him more.
Remedy for Employer A: Consider using a contract, a restrictive
to bind the employee, or to prevent the employee from disclosing what
he has learned, or to keep the employee from immediately going to
work for a competitor. "It is not a new development in the law,
but it is becoming more important as we become more high tech,"
Hazard for Employer B: Even if Employer B manages to hire away the
skilled worker it could run into legal trouble later. It is indeed
legal for Employer B to hire a worker once the petition has been
But if the H-1B visa gets denied, then what? The worker could have
a lawsuit against Employer B who induced him to come over. Employer
B could be looking at serious liabilities.
Remedy: Employer B may want to consider having the worker sign an
indemnification agreement saying he will not hold the employer
in case the H-1B gets denied.
The new law could trigger some serious lawsuits. Conduct business
as usual, say the experts, until the INS regulations come through.
Or take legal precautions. "At this point, because there are no
regulations, we are advising employers not to use the portability
provisions to induce prospective employees to come to work for
says Nachman. "Even though you need these workers desperately,
until we have the regulations, the risk is too great."
Overall, the changes may drive a wedge between business immigration
law and all other immigration law. "It is almost like a new
is being carved out," says Nachman. Formerly, both workers and
employers shared a common interest in visa matters. Now, the workers
may want to hire their own attorneys to represent them in more
negotiations. "We are saying to our clients that we may no longer
be able to jointly represent the employer and employee when we do
H-1Bs," says Nachman.
— Barbara Fox
is conducting its annual Santa Hotline, where with a contribution
of $10, any child can receive a phone call from Santa or Mrs. Claus.
The calls will be made on December 13, 18, and 20 from 6 to 8 p.m.
All proceeds benefit Angel’s Wings, Inc., a non-profit,
organization committed to providing emergency and respite care for
DYFS (Division of Youth and Family Services) involved children
from newborn to the age of 12.
Angel’s Wings Inc. needs funds to continue to keep its center located
at St. Francis Medical Center operating. Through the Santa Hotline
sponsorship, The Young Lawyers Committee will train volunteers and
promote foster families.
For the calendar of business meetings go to
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