Corporate Angels

Corrections or additions?

These articles by Barbara Fox were prepared for the December 6,

2000

edition

of U.S. 1 Newspaper. All rights reserved.

Visa Law Changes

It’s been an exciting nine weeks for business

immigration

law," says David H. Nachman of Grotta, Glassman & Hoffman.

Last year, if you spent thousands of dollars to import a skilled

foreign

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

Service

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.

Marcus,

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

master’s

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

973-992-4800).

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

three-year

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

employer,"

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

Company

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

covenant,

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,"

says Marcus.

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

filed.

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

responsible

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

them,"

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

practice

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

complicated

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

Top Of Page
Corporate Angels

The Young Lawyers Committee of the Mercer County Bar

Association

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,

non-denominational

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

www.princetoninfo.com/us1evts.html


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